McCormick v. Leonard

Day., J. — It appears from the statement of facts that the mortgage to Johnson was first executed, but that it was not filed for record until after the execution of the mortgage to plaintiffs. It is alleged that plaintiffs had knowledge, at the [273] time they accepted their mortgage, of this prior mortgage to Johnson. . This question of fact is the only one which we need consider. Notice is alleged by defendant, and upon him is the burden of establishing it. The testimony seems to be in exact equilibrio. One witness testifies that the agent of plaintiff was informed, at the time he accepted plaintiff’s mortgage, of the prior one to Johnson. The agent positively denies that he had such knowledge. Neither witness is discredited. There are no circumstances corroborative of the statements of either. Under such circumstances the court below rightly determined that the' party upon whom was the burden of proof had failed to establish his case. Aeeirmed.