The plaintiffs aver that in May, 1914, they made to defendants a deed to a quarter section of land which was subject to certain mortgages; that in consideration thereof defendants assumed and agreed to pay the mortgages; that they failed to pay the same and, hence, the plaintiffs had to pay on a mortgage $625. The plaintiffs appeal from a judgment against them.
The deed was lost and the question is: Did the deed contain a covenant for the grantees to assume and pay the mortgages? The plaintiffs each swear that the deed contained such a covenant. The defendants swear it did not, and the trial court found it did not, and that defendants did not in any manner assume or agree to pay the mortgages.
We may not all agree concerning the weight to be given to the findings of the trial judge, but we must all agree that in such a case some weight should be given to the findings. We must all agree that great weight -is to be given to the undisputed fact and the probabilities; also that plaintiffs have the burden of proof and it is for them to sustain their appeal by convincing evidence.
Defendants were in the real estate business. Chisman made out the deed himself on a regular blank, and such a form never has a printed covenant that the grantees shall assume or pay mortgages. If the deed had any such covenant, it was written or dictated by Chisman, and it is very improbable that he should do it.
The land was mortgaged for more than its value. In 1909 the plaintiffs purchased it for $6,400, turning in a stock of goods for $2,000. The mortgages were: $3,000; a commission mortgage $225; a third mortgage to the bank at Lisbon $1,000; the mortgage to defendants $900; a fifth mortgage to Stevenson (father of Mrs. Yocum) $550.
It is improbable that defendants should have bargained to buy the land at that price. Their mortgage was prior to that of Stevenson’s and they did not have to pay it. They knew they could redeem from a foreclosure and cut off the Stevenson mortgage. They did not consider the Yocum deed worth recording unless they could find a purchaser for the land at $37.50 an acre.
In regard to the clause in the deed that defendants assumed and agreed to pay the mortgages of record and that each mortgage was actually specified, the testimony of plaintiffs is not at all convincing, and indeed it is highly improbable, and the same is true of the testimony of each plaintiff concerning another deed marked exhibit “II.” Concerning a copy of a letter marked exhibit “C” which plaintiffs put in evidence as a copy of a letter sent by them with their deed to the defendants, it is no cogent proof. It did not change or vary the terms of the deed. It was no part of the contract. It may never have been read by the defendants. Yet on the whole, the case is not free from doubt. There is no convincing weight of testimony in favor of either party. Hence, as the burden of proof is on the plaintiffs, the judgment is affirmed. • • — - - .......... ........-