Opinion by

This was an action by plaintiff to have a parol agreement by defendant Abies, to execute a mortgage, set up as an equitable mortgage and superior to the lien of a judgment subsequently obtained by defendant Nevill against his co-defendant. In behalf of defendant Nevill, the Circuit judge (Wallace) dismissed the complaint. On appeal to this court, held—

1. That plaintiff, not having made the point on Circuit that the allegations of his complaint were admitted by the answers, but, having introduced evidence to sustain such allegations, he cannot raise the point in this court. It is an issue of law not passed upon by the Circuit Court nor even presented to it.

2. Findings of fact by the Circuit judge, from evidence taken before him in open court, sustained.

3. If a secret lien can be established by parol testimony, it must be done without delay, and by evidence that is clear and indisputable, which can scarcely be affirmed of evidence that has not proved sufficient to satisfy the mind of a learned and distinguished judge. Judgment affirmed.