delivered the opinion of the court:
The chief question in the cause is whether or not Paul G. Hawley, on March 13, 1891, executed and delivered to appellee, Frank 0. Hawley, the two deeds, as alleged in his bill. The evidence contained in the record is unusually and unnecessarily voluminous, and cannot be reviewed within the reasonable scope of an opinion, and if it could, no good purpose would be served by doing so. The facts, so far as they bear upon the issues in the cause, are few, and the law applicable thereto is not difficult of ascertainment.
Whether or not it was proven on the hearing that the two deeds re-conveying the lands to appellee were actually made and delivered, depends upon the credit to be given the testimony of complainant’s witnesses. The notary who took the acknowledgments of the deeds testifies positively that he acknowledged two deeds from appellee to Paul G-. Hawley,—one conveying the Morgan farm and the other the Judson homestead,—and shortly after, on the same day, two deeds by Paul G. Hawley and wife conveying the same'tracts back to Frank O. Hawley, and that he saw the four deeds delivered to the grantees; also, that in 1897 he saw the deeds from Paul G. Hawley to appellee again, in the latter’s possession. Soon after the time the deeds were made, W. H. Hopkins says he saw them in appellee’s possession. J. Ivor Montgomery, a surveyor, testifies that he examined these deeds and identified the descriptions; had them in his possession and saw them last in 1897. These witnesses are uncontradicted. The only attempt on the part of the defendants to show that no such deeds were in existence or ever *355delivered was by introducing witnesses to show that the reputations for truth and veracity of those introduced by the complainant were bad. The chancellor having seen and heard the witnesses testify, (except Mr. Montgomery, whose deposition was read upon the trial,) and also having heard the witnesses offered to impeach them, as well as the many introduced by complainant to sustain their reputations, could best judge of the truthfulness of those relied upon by complainant to establish his case. The rule is too well settled to require the citation of cases, that under such circumstances a court of review will only disturb the findings and decree of the chancellor when all the facts and circumstances proved wholly fail to sustain such finding and decree. That rule is applicable here, and, applied to the case, must result in affirmance of the finding of the chancellor on this question of fact.
The contention by appellants that the court erred in denying their motion to exclude all the evidence relative to the contents of the alleged deeds from Paul G. Hawley to appellee for the want of sufficient foundation being laid for such proof by first showing their loss or destruction, is without merit. Unless the undisputed evidence on that subject be rejected as untruthful, (and no sufficient grounds for doing so are shown,) it establishes the fact that the deeds in question were given by complainant, with other papers in a package, to the deceased, Paul G. Hawley, at his office for safe keeping, shortly before his death, and there left, with other papers of appellee. It appears inquiry was made at the recorder’s office, but it would seem such inquiry was merely formal, as the positive testimony is that the instruments were placed in the hands of the deceased in the fall of 1897. A diligent search is shown to have been made among the papers at the office of deceased and in the safe where he kept such papers, but the deeds were not found. There was no evidence tending to prove that they were, at any time after being left there, removed from the office of the *356deceased. We are satisfied sufficient proof of loss or destruction of the two deeds in question was made, in order to warrant the introduction of secondary evidence to prove their contents. The reason for placing the instruments ih the hands of his father was, that he at that time had no safe and his father had.
After the hearing of this cause a motion was made to amend the answers of defendants, setting up seven years’ possession of the property in controversy in Paul G-. Hawley under claim and color of title and payment of taxes, and to put in additional proof to sustain those allegations. The motion was properly denied. It having been shown that the title was in appellee by two deeds executed and delivered, although not placed upon record, the defense of color of title, etc., in Paul G. Hawley, if set up, must have failed. Moreover, the claim by complainant that the deceased had conveyed these two tracts of land to him, and denied by the defendants, presented the question- as to whether Paul G. Hawley had title to the lands or not at the time of his decease. The denial of the motion therefore deprived the defendants of no right, the defense sought to be set up by the motion being available under the issues actually made.
The contention of appellants' that the finding of the decree is not in conformity with the allegations of the bill is urged by both parties, and raised by appellee by assigning a cross-error, by which the correctness of the decree below is questioned in so far as it holds the deed to the Morgan farm a mortgage given to secure the payment of $1100, and requires him to pay to the estate of his father that sum, with interest from March 13, 1891, as a condition precedent to his receiving a deed from the widow and heirs of Paul G. Hawley, deceased. This cross-error, we think, must be sustained upon either one of the two following grounds:
First, there was no issue of that kind before the court, upon the pleadings. No mention of an indebtedness *357from Frank O. Hawley to his father is mentioned or alluded to, either in the bill or answers. Neither is there any claim made by the defendants, or by the bill itself, that any conveyance between the parties was intended to be a mortgage. It will not be necessary to do more in this connection than to refer to the oft repeated rule in chancery practice, that the allegata et probata must correspond. Therefore, even if it could be said that the proof as to the indebtedness and intended mortgage sustains the decree of the court below, that decree would have to be reversed for want of a sufficient allegation upon which to base it.
But secondly, all parties agree, as they must under the plain provisions of the statute, that Frank O. Hawley, in this suit against parties defending as the heirs of a deceased person, was incompetent as a witness, and that the court below properly excluded his testimony from the record. That being done, there remained no proof whatever of any fact upon which the idea of an indebtedness from him to his father, or a mortgage to secure the same, could be predicated. It seems to be contended on behalf of appellee that while his testimony was incompetent to establish any fact in his favor, in so far as he testified against himself his evidence should be considered competent. On this theory it is claimed his evidence of an indebtedness from himself to his father ought to be received as establishing that fact. It is to be observed, however, that in the very same connection,— in fact, as a part of the statement that he became indebted to his father,—he states that that indebtedness was paid off and satisfied. Conceding that his testimony against his interest, although testifying in his own behalf, might be competent to prove an existing indebtedness in favor of his father against himself, we do not think it can be seriously contended that his single statement in regard to the creation of the debt can be separated from the rest of his testimony so as to bind him by *358that which is against his interest and at the same time deprive him of that part of the connected statement which shows the payment of the indebtedness. In other words, the defendants cannot be permitted, under their general objection to his competency,—thereby procuring from the court an order excluding his testimony,—to turn about and insist that so much of his evidence as is favorable to their case shall be received. In the condition of this record we consider the testimony of Frank O. Hawley as entirely outside of it. But if it were otherwise, the defendants below could derive no affirmative relief, such as is given them by the decree upon that evidence.
For the error indicated the decree of the circuit court must be reversed, and the cause will be remanded to that court with directions to proceed in conformity with the views herein expressed.
S6yerse(Z and remanded.