delivered the opinion of the Court:
It is not necessary to discuss or decide some of the points that have been argued in respect of the sufficiency of the bill, or of the proper practice in cases of review. Defendant did not stand upon its demurrer, and the case will be considered on the testimony offered by the appellant, assuming its competency in all respects.
It has been said by the Supreme Court of the United States that “ there is no universal or absolute rule which prohibits the courts- from allowing the introduction of newly discovered evidence under a bill of review, to- prove facts which were in issue on the former hearing. ‘ But the allowance of it is not a matter of right in the party, but of sound discretion in the court, to be exercised cautiously and sparingly, and only under circumstances which demonstrate it to be indispensable to the merits and justice of the cause.’ Such was the language of Mr. Justice Story in Wood v. Mann, 2 Sumn. 334; and he states the rule none too strongly.” Craig v. Smith, 100 U. S. 226, 233.
Giving the appellant the benefit of all that his testimony tended to prove, and of every reasonable inference to be deduced therefrom, we think the court did not err in dismissing his bill. No new issue of fact is made that is not embraced in the original bill, and there is no pretence that the appellant was prevented from discovering the facts of his *487defence, or from presenting the samé, by any fraud practiced or undue advantage taken by or on behalf of the ap-pellee.
The testimony shows that the owner of the lot, who was known as Nannie E. Royer, owed the appellant 8235, and upon his discharge thereof, and the payment of $6$, made a deed to him therefor. This deed, dated February 7, 1889, was written by Warren C. Stone, the appellant's attorney, and recited a consideration of $500. There was no mention made therein of the mortgage. The deed was sent to Kansas and recorded. Shortly afterwards it was discovered that the grantor was a married woman, and that her husband, one Lowiy L. Moore, was living in Indiana. Thereupon another deed to the lot was executed by him and his wife. This deed was dated March 30, 1889, and recites a consideration of one dollar. It then recites the mortgage, and adds : “ Which the party of the second part assumes to pay." This deed was not a printed form, with blanks, but was wholly written by said Stone, who had, at the time, a complete abstract of the title that had been sent him by the clerk of the court of Sedgwick County, Kansas. It appears also from the appellant’s own testimony that he knew, when the first deed was executed, of the existence of the mortgage. “ Miss Royer,” or Mrs. Moore, had informed him of it. He denies, however, that he assumed or promised to assume the payment of it. He says that the second deed was delivered to him by Stone, who said it was “ all right,” and he did not read it. The only excuse for the recital in the deed of the grantee’s promise to pay the mortgage, which was also accurately described, is a flimsy one. The attorney' says that he had before him the deed to Nannie E. Royer from one Burroughs, which recited a mortgage of $300, which the grantee “ assumes and agrees to pay,” and that he “ inadvertently” followed that recital. It appears from his testimony, however, that when th'e first deed was made in the name of Royer, he had the Burroughs deed which she presented to him from which to ob*488tain the description of the lot. He says that she then had a description of the mortgage and stipulated that the sale should be made subject thereto. Yet that deed contains no recital of the mortgage, much less a promise to pay it. He says that he kept that deed after having had it recorded, and did not deliver it. to the appellant, and that its execution and delivery had been forgotten by him until he accidentally discovered it in a file of papers belonging to another person, after the decree had been entered. Appellant furnished him the money to pay the recording fee of that deed, and later that of the second deed.
He gives no satisfactory account of his neglect to defend this suit, saying that he thought he had filed a demurrer. He says further that he did not know the decree had been entered until informed by Osborne, who, he says, “ censured me quite severely for it, and I do not blame him.”
At-the same time, his conduct in making no defence to the suit is perfectly consistent with the facts as shown by the last deed, which was the effective one to pass the title. Under its recital there was no defence but payment, and of that there was, of course, no pretence. He could not charge fraud in Moore or Royer in procuring the deed to-be so written. The most he could say was that it was the result of his own “ inadvertence.”
That he or his client could, in the short time that intervened, have forgotten the execution, delivery and record of the, first deed is incredible, when their evidence is considered apart from all other facts’ in the case. Much less is it reconcilable with other facts shown. Correspondence between Osborne and Stone and the owners of the note was produced on the hearing. The first letter is under date of May 16, 1889, by C. E. Jones to. Osborne, referring to the purchase and the mortgage and' offering, for immediate payment, to remit the interest. November 20, 1889, he was informed by letter from the appellee that the note of Royer “ assumed by you falls due January 1, 1890. Please make arrangements for prompt payment.” The deed from Moore *489and wife was not recorded until December, 1889, and it does not appear by what means the holders of the note knew that Osborne had assumed its payment. It does not appear that Osborne or Stone ever denied the statement of the former’s promise to pay the mortgage.
December 17, 1889, appellee writes to Stone acknowledging the receipt of the interest to January 1, 1890, amounting to ,$24. This money was sent by Stone, under date of December 13, in a letter in which he hopes to remit $5° by January 1, and inquiring what amount in cash would purchase the mortgage. There were several other letters, and the last was of date March 31, 1891, by Stone to the appellee, inquiring the amount of interest and taxes due.
It is true, as has been said by the Supreme Court of the United States, that the mere payment of interest upon an incumbrance by a subsequent purchaser, “ is not inconsistent with his not having assumed the payment of the in-cumbrance.” A person so situated might well pay interest so long as he might attach any value to his equity of redemption, without having assumed the payment of the principal. Elliott v. Sackett, 108 U. S. 132, 142.
But that was a very different case from this. Here the-payment was made under a demand, founded on a legal obligation to pay, that was not once denied. And we jnust regard it and the correspondence concerning it as circumstances tending strongly to corroborate the recitals of1 the deed, which was prepared not by the grantor or her attorney, but by the attorney of the grantee.
We would set a very dangerous precedent were we to hold that solemn deeds and decrees of courts could be vacated upon such testimony as this record furnishes.
The decree , must be affirmed, with costs to the appellees ; and it is so ordered.
Decree affirmed, with costs.