In this case the parties waived a trial by jury, agreeably to the provisions of Gen. Sts. c. 139, § 66, and the questions of fact as well as of law were determined by the presiding judge. In considering the questions presented by the bill of exceptions, it is necessary to discriminate between questions of fact and questions of law. Exceptions can be taken only to his decisions in matters of law.
It appears that he found, as a fact, that the deed of Humphrey to Fowler was delivered at the same time with the mortgage of Fowler to Humphrey, and consequently that Fowler had only a momentary seisin. The question is not open whether this finding was according to the weight of the evidence. We are of opinion that the evidence which he received on the point was competent; and that it was legally competent for him to infer from it that the deeds were both delivered at the same time. It was an inference of fact, and not of law, and therefore it is not subject to exception.
This fact being found, there was no estate in Fowler out of which his widow was entitled to dower. Holbrook v. Finney 4 Mass. 566, Clark v. Munroe, 14 Mass. 351.
Exceptions overruled.