Marlowe v. Benagh

The questions presented in this case, as to which we have felt any doubt or embarrassment, involve matter of fact rather than of law. They are of that character in the decision of which absolute certainty is unattainable. The positive evidence is conflicting, but is reconcilable probably, so as to support either party, without an imputation of bad faith to witnesses or parties. The main fact in controversy is whether, by the acceptance by a mortgagee of a second mortgage, a prior mortgage was extinguished. Or, whether a parol agreement that the second mortgage should so operate, made by an…