DIRST

v.

MORRIS

Mr. Justice BRADLEY delivered tine opinion of the court.

We think that there was no error in admitting in evidence the record of the foreclosure suit, whether Breese was served with the subpoena of not. If he was not served, and could show that fact, he was not .bound by the decree. But the decree and sale formed a link in the plaintiff’s chain of title, from Russell, and at this stage of the cause the deed from Russell to Breese had pot been given in evidence. So far a¡s yét appeared, the evidence was not only admissible, but effective to transfer the title. But it was admissible in any view, for it tended to show titlé from á party formerly seized, and the plaintiff had a right to exhibit it, subject to such decision with regard to its effect as naight become necessary after all the-‘e'videuce was in.

The same remarks apply to the admiásion of the deed from the Solicitor of the Treasury to the plaintiff’s grantor. The only other alleged error necessary to be noticed is the ' ruling of the court at the close of the trial.

The particular reason why, or ground on which-the court decided that the plaintiff' was '.entitled to recover, notwithstanding the possession taken by the defendant, and found the issues generally in the plaintiff’s favor, is not specified. The couft was exercising the functions of both court and jury', ari.d whether, as matter of fact, it regarded the proof sufficient to show that Breese had been served with process in the foreclosure suit, or whether, as matter of law, it regarded. that fact as not material, or what other view of the case it may have take'n, does not appear, and therefore no error can be asserted in-the decision. This court, sitting as a court of error, cannqt pass, as it does in equity appeals, upon the weight' or sufficieu'cy of the evidence; and there was no special finding of the facts. Had there been a jury, the defendant might have called upon the court for instru'ctions, and thus raised the questions of law-which he deemed material. Or, had the law-, which authorizes the waiyer of a jury, allowed the parties to require a special finding of the facts, then the legal questions could have, been raised and presepted here upon such findings as upon a special verdict. But, as the law stands, if a jury is' waived and the court chooses to fihd generally for one side or the other, the losing party has no redress on error, except for the wrongful admission or rejectiou of evidence.

However, as there was no proof-that the .government agents, when the mortgage was given, had any notice' of Breése’s unrecorded-deed, and as the mortgage in such case-would have the superior efficacy, aud would entitle the mortgagee or'his assigns to'possession óf. the land on nonpayment of the mpney at maturity, we do not see on what possible ground the defendant could have claimed to succeed..

No error appearing on the record, the judgment of the court below is

Afeir.med.