Action is brought by plaintiff bank against defendants, John and Anna Wright, husband and wife. The basis of, this action is a promissory note executed by defendant husband. This note runs to plaintiff 'bank, face $5,470. In this sarnie action it is sought to- subject to a lien for the satisfaction of the judgment, which plaintiff anticipated- recovering in this action, a $20,000 note and mortgage claimed to be the property of defendant wife, and which plaintiff bank had in its possession as collateral security, and a $1,000 note which defendant wife for value had executed and- delivered' to plaintiff. Defendant husband made no answer and is in default. Defendant wife answered, and the cause was tried in the circuit court. Plaintiff’s theory is that the $20,000 note and mortgage w:as not the property of defendant wife solely, but was the property of herself and. husband1. Defendant wife demanded a jury trial. A jury was impaneled and special interrogatories were propounded. The jury found that defendant husband had an interest in the $20,000' note -and mortgage to the extent of $8,267.40. The findings of the jury were by the trial 'court adopted, and findings, conclusions, and *91judgments were made and entered in favor of plaintiff bank and against defendant wife. This judgment decreed that plaintiff bank had a valid lien on the interest of defendant husband in the $20,000 note and mortgage aforesaid to the extent of $8,267.40. •From this judgment and an order denying defendants’ motion for new trial, defendant wife appeals.
Appellant first complains of ruling on evidence. Defendant wife testified:
“At the time I took this mortgage, Mr. Wright and I had an agreement that he would give me the $20,000 mortgage and I was to be satisfied with that, and he could have the rest of the money. Mr. Wright does not have any interest in the $20,000 mortgage. I am the owner of that. I became owner of that mortgage at the time it bears date — March 1, 1920.”
The trial court then, on its own motion, made a ruling striking out all of the foregoing evidence so far as it stated that the witness ‘was the owner of the $20,000 mortgage; that defendant husband did not have any interest whatsoever in the mortgage. The reason given by the court for striking this evidence was that it was incompetent by reason of stating a conclusion of the witness. Defendant wife then w(as asked this question: “Can you state to the jury whether or not Mr. Wright has any interest in the mortgage at this time?” 'Objected' to by plaintiff as incompetent, irrelevant, immaterial, and calling for a conclusion of the witness. Objection sustained. Defendant husband was then asked this question: “D'o you, yourself, own any of that mortgage?” Answer: “No, sir.” Objected to by plaintiff as incompetent, irrelevant, imlmaterial, calling for conclusion of witness. Objection sustained. Motion made to strike answer was granted.
That the trial court, in excluding and in striking from the record the evidence aforesaid, committed error is quite clear. However, as between plaintiff and defendant wife this is a chancery action. The verdict of the jury was purely advisory. The trial court made findings and conclusions. It is Well established by many decisions of this court that in a chancery action errors in receiving as Well as’striking out evidence are not deemed prejudicial, because the appellate cou'rt will presume that the trial court did not base its findings upon incompetent testimony. The corollary is also true that in a chancery action, where the court *92rejected proper eivdence, it will not be -deemed' prejudicial if the' facts of the transaction are before the court from other evidence.: The rejected evidence in this case was rather close to the border, line betw'een a fact ,and a conclusion. The facts of the transactions were all before the court. This being, as it is, a chancery-action, we do- not think the alleged errors are shown to- be prejudicial. The remainder of appellant’s argument relates to- the insufficiency of the -evidence to< sustain the findings.
After a careful -consideration it seems, clear to us, from the verdict of the jury and the indorsement of that verdict, by the trial ju-d-ge, that the jury and the judge, who heard the case and saw the witnesses, refused to. believe all the testimony of John and Anna Wright as to her ownership of the land and as-to her sole interest in the note. This the jury had 'the right to do, and the jury being the sole judges of the evidence, and the court below having agreed with them, we are loath to overturn-that verdict and decision. Upon consideration of the entire case, we do not discover that the clear preponderance of the evidence is contrary to the verdict of the jury and. the findings of the trial-court. We therefore conclude that the judgment and order denying a new trial should1 be affirmed, and they are affirmed.