This appeal is from a decree foreclosing a mortgage, ordering a sale of the property for the payment of the liens found to be existing against the same. Though the mortgage is in form a deed, it is concededly shown, by a contemporaneous writing between the parties, to have been made for the purpose of securing a debt.
That the mortgage, and the original note drawn therewith as representing the debt secured, were executed by Emma M. Ice together with her husband, P. A. Ice, now deceased, is admitted. But the note was several times renewed at the Bank of Smithfield to which it was payable, the last time on February 13, 1908. Emma M. Ice denies signing any renewal of the note, though each renewal purports to have been signed by her. She asserts, in argument but not in her pleadings, that as mortgagor of the property and maker of the note she was only surety for a debt of her husband, and that the taking of a renewal not signed by her, released her from the debt and likewise released the mortgage security On the other hand, the receiver of the bank, plaintiff in this suit, submits that Emma M. Ice was not surety for the his-band; that P. A. Ice in whose handwriting the name of his wife appears on the renewals had authority from her to sign her name theretoand that in any event, the bank not having-relinquished the original note when the renewals were taken, those renewals, even of fraudulently palmed off on the bank as having been signed by Emma M. Ice, do not operate to 'discharge the original debt and security.
"We have made a careful review of the record in this cause, aided by the excellent briefs of counsel. That review leads us firmly to the conclusion that Emma M. Ice was a joint and principal maker of the note and its renewals, and that the property is liable under the mortgage. The sum and substance of it all is that P. A. Ice was generally doing business in his wife’s name, with her knowledge and by her authority. In the business so done he acquired in her name the property involved herein. In her name, she then signing in person, he mortgaged the same for debt. In her name he renewed the notes, signing her name thereto as was his general custom to sign it to notes and cheeks in managing the business. That he carried on an extensive business in her name, acquiring property, contracting debts, drawing checks, and doing all
Clearly Emma M. Ice was principal in the debt evidenced by the renewal note, and the questions in relation to surety ship discussed in the briefs have no place in the case.
It is- true that the commisssioner to whom the cause was referred found that the renewal notes were not authorized by Emma M. Ice. But that finding was clearly contrary to the weight of the evidence taken before him. The chancellor most properly sustained the exception to the report in this particular. We unhesitatingly approve his ruling. A finding of fact-by a commissioner, though entitled to weight, is not conclusive. If it is plainly not justified by the evidence, the court may set the same aside and decree according to its own view of the evidence.
Some minor matters remain. We may well dispose of them briefly, and as follows:
An off-set is claimed against the bank by reason of a certificate of deposit issued to Catherine Ice and assigned to Emma M. Ice. But the proof is well nigh conclusive’ that the bank paid this certificate, as a lost one, and took a bond of indemnity to protect the bank in the premises. The chancellor properly ignored this claim.
Certain oil interests were conveyed by Emma M. Ice and P. A. Ice to I. D. Morgan as security for debt. After the death of P. A. Ice, the son, Lory F. Ice, with the knowledge and consent of his mother, paid the obligation to Morgan and took from him a conveyance of the title to the property. The decree sets aside this conveyance and subrogates Lory F. Ice to the original place of Morgan. It decrees Lory F. Ice, as against this property, the amount which he paid to Morgan. He joins in the appeal and says that he should have been placed first in priority instead of third. But the decree gives him exactly the priority which Morgan had, and is right. Two judgment liens underlie the Morgan debt.
Error is cross-assigned as to the allowance of any amount to Lory F. Ice. It is submitted that he is not entitled to subrogation. In good equity, under the circumstances of this case, we think he is.
Finding no error in the decree, we affirm it.
Affirmed.