#### Isaac S. Storm, Administrator, Appellant, v. Robert M. Brown et al, Appellees.

.Decree—when not disturbed as against the evidence. A decree will not be disturbed as against the evidence where such evidence was heard by the chancellor, unless the errors with respect to the findings of fact are clear and palpable.

*253Foreclosure. Appeal from the Circuit Court of Shelby county; the Hon. Truman E. Ames, Judge, presiding.

Heard in this court at the November term, 1907.

Affirmed.

Opinion filed April 21, 1908.

Dove & Dove, for appellant.

Chafee & Chew, for appellees.

Mr. Justice Ramsay

delivered the opinion of the court.

Isaac S. Storm, as administrator of the estate of Alta S. Caris, deceased, appealed from a decree of the Circuit Court of Shelby county, refusing to allow a foreclosure of a mortgage made by Robert M. Brown and wife to one R. L. Caris, and finding that the mortgage indebtedness had been fully paid.

Storm, as administrator, contended that the indebtedness, represented by a note of $400, dated January 12,1893, due in one year from its date, made by Brown and wife to R. L. Caris, and by R. L. Caris assigned to his wife, Alta S. Caris, secured by the mortgage sought to be foreclosed, was wholly due and unpaid, while upon the part of appellees it was claimed that such note had been fully paid and in equity the mortgage should have been released.

The evidence shows that on July 26, 1894, Brown paid $125 to R. L. Caris and took his receipt therefor in which it was stated that the payment was “to be credited on note and mortgage of $400;” that on October 8, 1894, Brown and wife conveyed a part of the mortgaged premises to one J. N. Storm; that J. N. Storm and wife, on February 7, 1901, made a note for $300 to Alta S. Caris secured by a mortgage of the same date, which said mortgage was released of record by said Alta S. Caris on February 18, 1903, and payment acknowledged of the debt secured by the mortgage.

The only question presented is whether or not these payments of $125 and $300 were payments upon the *254mortgage which appellant sought to foreclose. The issue was purely one of fact. The trial court saw the witnesses and heard them testify and we are not disposed to hold that the finding of the court that the mortgage debt involved had been fully paid was unwarranted.

There was some evidence heard upon the trial/that was incompetent, but without considering that, there was enough competent evidence to warrant the court in holding that the mortgage debt had been paid. William H. Eagan testified that he had a conversation with Alta S. Garis shortly after she had released the Storm mortgage of $300 while he was acting as attorney for J. 1ST. Storm, in which he said to her that Storm wanted the Brown mortgage released; that it seemed that it had been paid oft; that Storm had paid $300 of it and probably had a receipt for the other $100. To this deceased replied to him that her husband had led her to believe that there was $100 back on it. The witness Eagan further said: “I told her Storm had made a mortgage for the balance due on the $400 mortgage, and she said if there was a receipt out for $100 she had never seen it. She made no claim whatever except for the $100, i. e., it may have been a little more, $110 or $125.” The testimony of Eagan was undisputed and seems to show fairly that all Alta S. Garis then claimed was a balance of about $100 .

In view of the fact that the evidence clearly shows that B. L. Garis, husband of Alta S. Garis, had, up to the time of his death, attended to all the business in connection with the loan involved, had for several years loaned money for his wife and received payments for her; that he receipted to Brown in July, 1894, for $125 which was to be credited on note and mortgage of $400; that there was no evidence whatever showing any other mortgage of $400, made by Brown to either E. L. Garis or his wife, Alta S. Garis, we are not disposed to disturb the holdings of the chancellor.

The evidence was heard by the chancellor and to au*255thorize a reversal as to a finding of fact the error must be clear and palpable. Mayrand v. Mayrand, 194 Ill. 49; Elmsted v. Nicholson, 186 Ill. 584.

The decree is affirmed.

Affirmed.