*59The opinion of the court was delivered by

The plaintiff in error does not question the correctness of the second, fourth, fifth and sixth findings of fact, but challenges the first one as not supported by the evidence. We think the evidence fairly shows that the Arnold property was purchased with the proceeds of the Ohio land, which had belonged to Kingsley; that the loan secured by the bond and mortgage in suit was obtained from the building and loan association by Kingsley to pay off a mortgage on the Arnold property; and there is no dispute whatever in the evidence as to the fact that Kingsley traded the Arnold property for Dakota land, which was deeded to himself, and which he afterward sold and received the proceeds of, the deed to the Arnold property being made by his mother to the party with whom he traded.

It is urged in opposition to'finding No. 7, that the evidence shows that Kingsley acquired the title to the bond and mortgage by the assignment made by the building and loan association to his agent, Bowl us; that a surety has a right to pay the debt and take an assignment to himself of the instrument securing the same, and that he may thereupon enforce it against the principal debtor; that inasmuch as both he and his mother, who were the only parties bound by the obligation, swore positively that she was the principal, and he was only surety, that such testimony concludes the controversy in favor of the position of plaintiff in error.

Conceding the soundness of the legal proposition advanced by the plaintiff as to the right of a surety to take an assignment of the bond of his principal and enforce it by an action in his own name, we cannot hold that the mere statements in court by the parties to the instrument that Kingsley was surety necessarily determines the question. It was not only the right, but the duty, of the court to consider all the testimony in the case, and, from all of the statements of witnesses, and the facts and circumstances surrounding-the transaction, to determine who was in fact principal and who surety. It *60was Kingsley himself who took a share in the building and loan association, in order that the loan might be obtained. His name appears first on the bond, though second on the mortgage. The money was applied to the payment of a mortgage on lands to which he had the equitable though not the legal title, and from which he ultimately received the proceeds. This certainly is some evidence tending to show that he was the principal in the obligation, and, if so, of course the transaction by which the bond was assigned to his agent, for a consideration paid by himself, simply amounts to a payment and discharge of the obligation.

We think the findings of fact are supported by the evidence, and that the conclusion of law is correct. The judgment is affirmed.