This is a petition to enforce a mechanic’s lien. Certain issues were submitted to the jury, seventeen in all, which were duly answered by them, and on motion of the petitioners *223that “ a lien be established upon the lot of land described in the petition, for the amount of their claim,” a decree was entered that, “it appearing . . . that the allegations in the plaintiffs’ petition, material to the judgment in this case, are sustained,” there was due the petitioners the sum of $577.69 debt and costs, and it was ordered that the premises be sold pursuant to the provisions of law in such case made and provided. From this decree the respondent Sanborn, the mortgagee, appealed. No ruling was asked for by him, and no exception was taken by him. The case is before us on the petition, the answer of the respondent Sanborn, the issues to the jury and their answers thereto, the petitioners’ motion that a lien be established, the decree, and the respondent Sanborn’s appeal therefrom. The question which the mortgagee seeks to raise is whether upon the issues submitted to the jury and their answers the petitioners are entitled to maintain their lien. But it does not appear from the record that no other evidence was before the court than that embraced in the issues and the answers to them. For aught that appears other evidence may have been introduced. If there was other evidence then the appeal only raises the question whether upon all the evidence the decree was correct. It does not raise the question whether upon the issues and answers the petitioners were entitled to a decree. Very likely the issues and answers were all that was before the court as the basis of its decree. But it is not so stated and we must take the case as we find it.
Even if we assume, however, that the question which the mortgagee seeks to raise is properly raised, we think that the decree must be affirmed. The mortgagee contends that Brown’s seisin was only instantaneous. But the jury did not so find. What they found was that, “ The deed from Lyman to Brown and the mortgage from Brown to Sanborn were delivered simultaneously at the Registry of Deeds on April 14, 1896.” It does not follow conclusively that because the delivery of the two instruments was simultaneous they constituted parts of one transaction in which the seisin was instantaneous. Webster v. Campbell, 1 Allen, 313. They may have been so delivered as matter of convenience merely. Whether a seisin is instantaneous “ must depend upon all the facts and circumstances of the case.” *224Webster v. Campbell, ubi supra. If there is no dispute in regard to the facts the question whether the seisin was instantaneous is one of law for the court. If the facts are in dispute the question is for the jury under suitable instructions. Woodward v. Sartwell, 129 Mass. 210. In the present case no issue was submitted to the jury in regard to the question of instantaneous seisin. Apparently the mortgagee relies on the finding that the delivery of the deed and the mortgage were simultaneous to establish an instantaneous seisin. But for reasons already given we do not think that it follows as matter of law that the seisin was instantaneous because the delivery of the two instruments was simultaneous. In Saunders v. Bennett, 160 Mass. 48, it is expressly stated that the conveyance and mortgage were parts of the same transaction. In Ettridge v. Bassett, 136 Mass. 314, 315, it is also expressly stated that “ The warranty deed, mortgages, and agreement were executed and delivered at the same time, and as parts of the same transaction,” and in Perkins v. Davis, 120 Mass. 408, there was evidence which this court held would have justified a finding that there was an instantaneous seisin. Whether in this case the issues and answers would have justified a finding that Brown’s seisin was only instantaneous we need not inquire. The question is not whether such a finding would have been justified but whether it was required as matter of law, and we do not think that it was. If Brown’s seisin was not instantaneous, then the petitioners had a valid lien. Corbett v. Greenlaw, 117 Mass. 167. Courtemanche v. Blackstone Valley Street Railway, 170 Mass. 50, 53. In view of the findings of the jury that Brown falsely represented to. the petitioners that he was the owner of the premises, that the petitioners were induced thereby to enter into the agreement which they did with him, and that the mortgagee when he took his mortgage knew that the petitioners had a claim of lien on the premises and that Brown had falsely represented to them that he was the owner, we doubt whether the mortgagee would stand in any better position than Brown even if the seisin was an instantaneous one. It is not necessary however to consider that question. For the other reasons above stated we think that the decree should be affimed.
So ordered.