Lead Opinion
The appellees, as complainants in the Circuit Court, filed their bill to foreclose a mortgage given by the defendant (appellant) to the assignors of the complainant. The defendant in her answer seeks to exclude from the mortgage a certain portion of the property described therein. The inclusion of such portion was alleged to have been brought about through fraud of the agent of the mortgagee. The right to such relief at the solicitation of the defendant does not seem to have been questioned by the complainants in the lower court, nor do they question it here. Evidence was taken before a master upon the issues, including that of fraud, and upon a hearing before the chancellor, a decree of foreclosure was entered in favor of the complainant. Under the circumstances, we are disinclined to answer the second question propounded by the appellant, namely:
May a misdescription in a mortgage be reformed at the solicitation of the respondent, by affirmative answer, in a suit to foreclose the mortgage?
We are in accord with the contention of appellees that the only question involved is one of fact, and that the decree of the chancellor should not be disturbed unless the evidence clearly shows that it was erroneous. This rule applies even where the testimony was taken before a master or examiner. Lesnoff vs. Becker,
The decree of the lower court is affirmed.
Addendum
The record in this cause having been considered by the Court, and the foregoing opinion prepared under Chapter 14553, Acts 1929, adopted by the Court as its opinion, it is considered and ordered by the Court that the decree of the court below be, and the same is hereby, affirmed. *Page 282
BUFORD, C.J., AND WHITFIELD, ELLIS, BROWN AND DAVIS, J.J., concur.