The question at issue in this cause was whether a deed made by the plaintiffs to the defendant was intended as a mortgage, or as an absolute conveyance in fee. At the trial the Court submitted this question to a jury. The verdict was: “We, the jury, find the deed between the parties to be an absolute deed.” The plaintiffs moved for a new trial, assigning as one of the grounds therefor that the evidence was insufficient to justify the verdict, and specifying in the statement the particulars wherein it was insufficient. On the hearing of the motion the Court granted a new trial, assigning as one of the reasons therefor that the verdict is defective and not responsive to the issue, “ and against the admissions of the defendant, who was called as a witness.”
It is too plain to admit of debate that the motion was granted partly on the ground that the evidence was insufficient to justify the verdict. In holding that the verdict was *469“ against the admissions of the defendant, who was called as a witness,” the Court clearly intended to say that these admissions furnished strong, if not conclusive evidence, that the verdict was erroneous; or in other words, that it was not justified by the evidence; and in this opinion we fully agree with the Court below. But if we did not, we would not disturb the order of the Court granting a new trial on this ground, except in the case of an evident abuse by the Court of its discretion.
Order granting a new trial affirmed.