I cannot rid my mind of the impression, very clear and strong, derived from a reading of the testimony, that this case, which presents nothing but a question of mere fact, was wrongly decided by the court below. I understand very well the advantages possessed by that court over this in the investigation and trial of such questions, and have endeavored to point out some of them in the case of Snyder v. Wright, 13 Wis., 689. But this is a cause in equity and not at law, and consequently one in which the appellate court always has reviewed and still must review and decide the questions of fact for itself.

On the part of the plaintiff were three witnesses, the plaintiff herself, Patsey Grier and Patrick Eitzgerald, testifying, and by whom it was claimed to have been shown, that the deed in question was delivered absolutely and not in escrow. Of those witnesses the plaintiff at least, besides her interest, was quite *426illiterate and unacquainted with the forms and modes of transacting business. It appears that she was unable to write her own name. She was a person quite likely to have forgotten or fallen into a mistake respecting the true nature of the transaction, and, thus misapprehending, to have testified very innocently that the delivery of the deed was absolute, when in truth it was not so, nor so understood at the time. Of the other two witnesses, who seem to have been warm friends of the plaintiff, and therefore deeply, and I cannot say but very commendably, interested in her success, their want of intelligence and accuracy cannot be said to be quite so apparent. They are evidently men of not very much education, and whose testimony is not to be implicitly relied upon when'giving evidence of facts of the kind here in controversy. They certainly made contradictory statements on the witness stand. The witness Patsey Grier, speaking of the transaction at Hathaway’s office, and what was said there about .the papers, stated that “ they were to be delivered up to loth parties on the first of November.” This implies that the deed, as well as the mortgage, was to be retained until the first of November, when it was confidently .expected by both parties that the money would be paid in satisfaction of the mortgage. And the same witness, when recalled for the plaintiff after the defendant had rested his case, in answer to the question, “Was there any agreement either one way or-the other about leaving the deed with Hathaway?” replied: “Yes, sir, there was; the papers were to be left there until the first of November.” The next question put to him was, “ What papers ? ” To which he answered: “ The deed and the mortgage; the mortgage was to be left there to secure her on the $200 that was against the place, and Mr. McCormick was to pay the $200 the first of November, and pay her $55 besides ; then the papers were to be delivered up to each party.” It is true that the witness, when again brought to the stand on the next day, endeavored to correct this statement, and to say that it was only the mortgage that was to be left with Hathaway.

*427And tbe witness Fitzgerald was scarcely less contradictory of liimself, or corroborative of the facts as claimed on the part of the defense. He testified on his first examination to the agreement as finally concluded between the parties at Hathaway’s office, the conversation being between the plaintiff and Patsey Grier on one side and the defendant Roger McCormich on the other, that, McCormich said “We will leave the papers here until I get the money on that mortgage in November; and they all agreed to that.” And when recalled after the defendant had rested, he again testified concerning the same conversation: “I didn’t hear anything about a deed at all; the question was, the papers were to be left there until he should get those payments that were coming back on the house and lot; when the question came up about this money that was to be paid, they agreed to leave the papers there until he got the money, but I didn’t hear anything about a deed.” The papers of which the witness was speaking were the deed and mortgage. There were no other papers.

Instead, therefore,of the testimony of these witnesses establishing the position assumed by the plaintiff, their testimony seems quite as strongly, if indeed not more strongly, to sustain the position assumed by the defendant.

The testimony of the two other witnesses for the plaintiff, Hanley and Daily, has little or no bearing upon the question. The fact that McCormich refused to sell the mortgage to Connell is fully as consistent with the supposition that he did not consider himself the absolute owner of it, as that he did ; and what he said to the last witness about seeing the plaintiff, and that he thought she would throw off something, rather confirms the supposition that he regarded her as the owner of it.

Neither do the facts that the plaintiff was let into possession of the premises, and the policy of insurance assigned to her, have any very positive or controlling influence upon the question. They only show that the parties were very sanguine, the defendant particularly, that the money would be received *428upon tbe mortgage, and that then the plaintiff would become the owner by final delivery of the deed.

But the evidence upon which I rely most strongly is the clear, positive and intelligent testimony of the witnesses Hathaway and Smith. I do not, of course, reject the testimony of the defendant McCormick himself, which I think must be freely admitted at least to counterbalance that of the plaintiff; but, supposing it only does that, then I say the clear, positive and intelligent statements of the witnesses Hathaway and Smith are decisive of the question under consideration. Both appear to have been entirely disinterested witnesses. Both are intelligent and worthy men. The record contains not a word against the good character of either. Hathaway is a lawyer by profession, and the person employed by the parties to draft the deed and the assignment of the mortgage. He is the depositary with whom the deed and mortgage were left, showing that both parties had confidence in him. Smith is a justice of the peace, and the officer before whom the parties appeared to make acknowledgment of the execution of the writings. Both of these witnesses testify positively and without hesitation to the agreement that the deed was to be left with Hathaway until the money was paid upon the mortgage, and that when it was paid the deed was to be delivered to the plaintiff, or recorded for her benefit. They recollect and give particulars of the transaction, such as the memorandum in pencil made by Hathaway on the back of the deed showing the terms of deposit, which seem to make the correctness and truthfulness of their statements unmistakable. Hathaway also states other particulars, such as plaintiff’s calling upon him at his office for the deed, and saying that he agreed to put it on record. He says that he refused to deliver the deed, and denied that it was to be put on record. It is impossible for me to believe that either he or Smith is mistaken, or that they testify falsely; and one or the other must be my cpnclusion in order to affirm this judgment.

*429There are other circumstances in the case which fortify the same view of the transaction. One very important one is, that the premises covered by the mortgage were subject to five prior mortgages, which it seems were nearly if not fully equal in amount to the entire value of the premises. It turns out that a foreclosure soon after took place, and that the mortgage deposited was cut off. It is very unlikely under such circumstances that the defendant would have accepted the mortgage in absolute payment for the property sold by him to the plaintiff, or that he would have consented to part with his title before the mortgage was paid. This circumstance gives a strong ah of truth to the position assumed by the defendant, and to the facts as testified by him and his witnesses.

I think the judgment appealed from should be reversed, and the cause remanded with direction to dismiss the complaint.

By the Court. — It is so ordered.