153 Ind. 655 | Ind. | 1899
Lead Opinion
Appellant commenced this action in the Jay Circuit Court on June 1, 1893. The venue thereof was subsequently changed to the Delaware Circuit Court. The purpose of the suit was to recover a personal judgment against Jacob B. Julian upon certain promissory notes executed by him, and to obtain the foreclosure of a mortgage
The plaintiff in its complaint also set up and demanded the right to redeem the mortgaged premises from the lien of a senior mortgage. All of the defendants, except Jacob B. Julian, Amanda T. "Whitson, and The Elm Peeler Oil Company, filed disclaimers. The last two named defendants filed answers to the complaint. On the issues joined, there was a trial by the court and a special finding of facts, and conclusions of law in favor of these two defendants. A personal judgment was rendered in favor of appellant against Julian on the notes for $8,950. The right of appellant to foreclose its mortgage, or to redeem from the lien of the senior mortgage, was denied by the court.
The errors assigned are in respect to the conclusions of law on the facts found, and upon the action of the court in denying appellant’s motion for a new trial. The material facts as found are substantially as follows: On July 27, 1876, Jacob B. Julian was the' owner in fee simple of the undivided one-half of eighty acres of land situated in Jay county, Indiana. On that day he executed to one George H. Bone-brake three promissory notes, payable in bank, each for $1,000, due in three, nine, and fifteen months respectively after date, bearing interest .at ten per cent, per annum. On the same day Julian and wife, to secure the payment of these notes, executed to Bonebrake the mortgage in suit upon his interest in the aforesaid eighty acres of land. This mortgage was duly recorded, within the time provided by law, in the recorder’s office of Jay county, Indiana. On July 29, 1876, for a valuable consideration, Bonebrake sold and assigned these mortgage notes by indorsement to the appellant, the Citizens State Bank of Noblesville. There was no assignment of the mortgage by Bonebrake to appellant other +han that which resulted from the assignment of the notes secured thereby. No record of any kind was ever made of
The first and second conclusions of law upon the facts found by the court are to the effect that Calvin W. Diggs, James Moorman, and the appellee, Amanda T. Whitson, were innocent purchasers of the real estate described in the complaint, and that plaintiff was not entitled to foreclose its mortgage against said lands, and that the latter are not liable to the said mortgage lien.
There are but two principal questions involved in this appeal: (1) Was appellant, as the assignee of the mortgage notes from Bonebrake, required to enter of record an assignment of such mortgage after the taking effect of the act of the legislature which was in force on the 2nd day of July, 1877? (2) If the above question be answered in the affirmative, is the appellee, Amanda T. Whitson, under
The act of 1877, requiring the assignment of mortgages to be recorded, was approved March 6th of that year and went into effect, as previously stated, on July 2nd, following. The provisions of that statute are embraced in §§1093, 1094 R. S. 1881, and Horner 1897, §§1107, 1108 Burns 1894. These sections are as follows:
Ҥ1107. Any mortgage of record, or any part thereof,, may be assigned by the mortgagee, or any assignee thereof, either by an assignment entered on the margin of such record, signed by the person making the assignment and attested by the recorder, or by a separate instrument executed and acknowledged before any person authorized to take acknowledgments, and recorded on such margin, or in the mortgage records of the county, in which case such assignment shall be noted in such margin by the recorder, by reference to the book and page where such assignment is recorded. And after such entry is made of record, the mortgagor and all other persons shall be bound thereby, and the same shall be deemed a public record. And any assignee or his personal representative may enter satisfaction or release of the mortgage, or the part thereof held by him of record as aforesaid.
Ҥ1108. And in a suit to foreclose said mortgage, it shall be sufficient to make the mortgagee, or the assignee shown by said record to hold an interest therein, defendants. And all persons failing to cause assignments to them to be made or put of record in the manner aforesaid, unless they cause themselves to be made parties pending the action, shall be bound by such decree as may be rendered, the same as if they had been parties to the suit. And any purchaser at judicial sale of the mortgaged premises, or any part thereof, under such decree, or claiming title under the same, buying without actual notice of any assignment not thus of record,.
At the time of the assignment of the notes by Bonebrake to appellant, the bank, on July 29, 1876, and at the time of the foreclosure of the senior mortgage by Diggs and the purchase of the said mortgaged premises by him at the sheriff’s sale, there was no law, according to the decisions of this court, which required the assignment of a mortgage to he recorded upon the public records, thereby making such recording constructive notice to any and all persons concerned. Therefore, previous to the enactment of the above statute in 1877, a party who was an equitable assignee of a mortgage, as was appellant, could not be deemed to be guilty of laches in failing to record an assignment of his mortgage and could not be held to have lost any of his rights by such failure. Hasselman v. McKernan, 50 Ind. 441; Dixon v. Hunter, 57 Ind. 278; Reeves v. Hayes, 95 Ind. 521, and cases there cited.
We may, however, say in passing that were this question an open one we would be inclined to hold that, under the law, as it existed prior to the taking effect of the act of 1877, an assignment of a mortgage was required to be recorded in the recorder’s office where the mortgage assigned was of record, in order to operate as constructive notice.
The able and well considered dissenting opinions of Judges Niblack and Zollars in Reeves v. Hayes, supra, might be accepted, we think, as a clear interpretation of the law on that subject, and it is evident that this court was led into error in asserting a rule to the contrary. Be this as it may, however, the legislature, by interposing and enacting the statute of 1877, to supply what this court had previously considered as an omission in our registry laws, has rendered the rule,
A solution of the principal question as here involved depends upon whether or not appellant, under the circumstances, was bound by the act of 1877 after it went into force, and was therefore required to record an assignment of its mortgage, in order to affect parties with constructive notice thereof claiming as bona fide purchasers or holders of the title to the mortgaged premises. That the assignment by Bonebrake of the notes, secured by the mortgage, to appellant served to operate as equitable assignment of the mortgage to the latter of course is not and can not be denied. This equitable rule or doctrine, which holds that a mortgage is but the incident or shadow of the debt secured thereby and passes with the assignment of the debt to the assignee, has been repeatedly recognized and affirmed by the .decisions of this court. Felton v. Smith, 84 Ind. 485; Reeves v. Hayes, 95 Ind. 521, and cases there cited; Midland R. Co. v. Wilcox, 122 Ind. 84.
It is firmly settled as a general rule by our decisions that where a junior mortgagee is not a party to the action to foreclose a senior mortgage, his equity of redemption is not barred or affected by the decree. Holmes v. Bybee, 34 Ind. 262; Gordon v. Lee, 102 Ind. 125, and cases there cited. Appellant, therefore, being regarded under the law as the assignee of the junior mortgage, at the time Diggs foreclosed his senior mortgage, ought to have been made a party to such foreclosure proceedings in order to be bound by the decree, regardless of the fact that Diggs had no notice of the assignment made by Bonebrake, who appeared of record as the mortgagee under the junior mortgage. The senior mortgage held by Diggs, by reason of the fact that appellant was not a party to the foreclosure action, remained unforeclosed as to appellant.
The insistence of appellant’s learned counsel is that the act of 1877 can not be so construed as to avail appellee in this action, because the notes secured by the junior mortgage were assigned to appellant, and the foreclosure of the senior mortgage and the sale of the land thereunder all occurred prior to the taking effect of that statute. It is further contended that the act in question does not profess by its terms to be retroactive and can not be so construed; therefore the insistence is that it must be confined in its operation and held to apply only to assignments of mortgages made on or after July 2, 1877, the date of its taking effect. The contention is further advanced that if the law can be said to apply to assignments made prior to that date, it must be held invalid as to such because no time is given or provided in which to record them.
Counsel for appellee do not contend that the law must be held to retroact to the extent of requiring assignments, of mortgages to be recorded before it took effect, but they insist that the act assumes to have and has such a control or regulation over assignments previously made as to require them to be recorded, at least within a reasonable time after it took effect; and it is contended that inasmuch as appellant had ample time after that event, before Diggs transferred the land to Moorman and before the partition in question took place, to comply with the requirements of the law and record the assignment of its mortgage, and, having failed therein, it must suffer for its laches and can not now enforce any rights under its mortgage to the detriment of a purchaser for a valuable consideration of the mortgaged premises who had no actual notice of the assignment.
It is insisted by counsel for appellee that the holding of this court in the appeal of Connecticut Mutual Ins. Co. v. Talbot, supra, must exert a controlling influence over the question involved in the case at bar. The facts in that case, briefly stated, are as follows: Talbot in 1871 executed a mortgage on certain lands to the Thames Loan & Trust Company to secure a loan of $3,000 due in May, 1876. This mortgage was duly recorded. In January, 1874, Talbot executed a second mortgage on the same premises to one Morrison to secure a debt of $3,000 evidenced by a promissory note due and payable to Morrison one year after date. This mortgage was also duly recorded. Before the maturity of this mortgage note, Morrison assigned it by indorsement to one Tomlinson. There was no assignment of the mortgage other than the equitable assignment thereof which resulted from the indorsement of the note secured thereby.
Mitchell, C. J., speaking as the organ of this court in respect to the question therein involved, said: “Whatever conclusion we might arrive at, as at present advised, in respect to whether or not assignments of mortgages were within the recording act prior to July 2, 1877, there is no room to doubt but that such assignments are affected by the act last above named. * * * It is assumed everywhere, that if the recording acts afford the assignee of a mortgage opportunity of giving notice of his rights by procuring and putting of record an assignment of the mortgage, neglect on his part to do so will estop him from asserting the invalidity of' a duly recorded release executed by his assignor, after an innocent purchaser has paid his money on the faith of the public records. It is settled everywhere, that unrecorded assignments of mortgages are void as against subsequent purchasers, whose interests may be affected thereby, and whose conveyances are duly recorded, provided such assignments are embraced by the recording acts. [Citing authorities.] * * * The effect of the act of 1877, construed in connection with §2931 R. S. 1881, was to postpone or render assignments of mortgages void as against any subsequent purchaser or mortgagee in good faith, for a valuable consideration, unless such assignments were recorded as therein provided. It follows, that when assignments of mortgages are within the recording acts, a release executed by the person who appears by the records to be the owner of the mortgage is sufficient to protect a purchaser who has
In the case of Hopping v. Burnam, 2 Greene (Iowa), 39, the question arose as to whether deeds executed prior to the passage of a registry law by the legislature were subject to its provisions. It was held that they were. The supreme court of Iowa, in passing upon the question in that appeal, said: “He [Hopping] was by no means exempt from its recording requirements merely because his deed was executed before the law took effect. Its provisions were not limited to deeds subsequently executed, but they extended equally to deeds then in esse, to those previously executed and acknowledged but not recorded. And still the law did not retroact, it did not require deeds to have been recorded before it took effect, but it assumed a regulation over them from and after that event.”
There is certainly a similarity between the facts in the case of Connecticut, etc., Ins. Co. v. Talbot, 113 Ind. 373, and those of the case under consideration. We have no reason to doubt the correctness of that decision and believe that the rule as there asserted, under the facts, was properly enforced. Consequently, that decision is entitled to much weight in the solution of the question now involved. As said in that case, the act in question applies by its terms to “any mortgage of record” at the time it took effect, the same as it does to those thereafter recorded.
Appellant’s mortgage was of record at the time the law went into force, appearing as it did upon the public records
It appears that a period of over twelve years had elapsed after the registration act of 1877 went into effect before the realty was assigned to appellee. It was during this period of time that all of the above changes or transactions, in respect to these lands; occurred. Ample time, under the' circumstances, certainly was afforded to appellant, after the taking effect of the act, and before the intervention of the rights of innocent parties took place, to have placed upon record the assignment of its mortgage. This, as we have seen, it neglected to do'. It was bound to know the purpose and requirements of the statute in question. It certainly was aware of the fact that its mortgage was of record in the name of Bonebrake as the mortgagee, and that the assignment through which it claimed its right to the mortgage was a secret equity which it held undisclosed by the public records. Notwithstanding all of this, appellant seems-to have stood by and does not appear to have taken any steps-to procure and record an assignment at any time after the law went into effect and thereby enable all persons who-thereafter might have dealings, in respect to the lands in question, to be apprised, by means of such recorded assignment, that, at the time of the foreclosure of the senior mort
It was said in the case of Connecticut, etc., Ins. Co. v. Talbot, 113 Ind. 373, that the mortgage there in question was released by the only person, so far as the records disclose, who had the legal right to release it. It may be said in the case at bar that an examination of the public records of the offices of the clerk and recorder of Jay county would have disclosed that Bonebrake, the junior mortgagee of record, had been made a party defendant to the Diggs foreclosure action, and his equity of redemption barred by the decree therein. So far as the record in the recorder’s office disclosed, he, and not appellant, was the person that Diggs was legally required to make a party defendant to his said action in order to cut off the right of redemption which existed under the junior mortgage.
With all of these facts revealed by the public records, a person subsequently acquiring the lands as a bona fide purchaser for value, as it is claimed appellee is shown to be, had a right, we think, to rely upon such facts without further inquiry, 'and is entitled to hold the realty in controversy as the act of 1877 declares “free and discharged” of the lien of appellant’s mortgage. If any of its existing rights have been impaired or cut off, such results can not be attributed to the statute, but are the consequences of appellant’s own neglect or failure to comply with its requirements in not recording the assignment of its mortgage after the taking effect of the law and before the intervention of bona fide rights.
It is next insisted that neither appellee nor Moorman, her ancestor, is shown to have been a good faith purchaser of the land in dispute. Diggs, who was a purchaser at his own sale, it is also claimed, can not be considered as a good faith purchaser without notice, because, at the time he purchased the premises at the sheriff’s sale, there was no law in force requiring assignments of mortgages to be recorded. It is said that Moorman is not shown by the special finding to have actually paid the purchase price or consideration by which he secured the conveyance of the land from Diggs, and for this reason it is contended that he can not be held to have been a tona fide purchaser for-value. As to appellee, counsel say that she simply holds the land by devise and partition, never having surrendered anything of value for it, having succeeded only to the lights of her said ancestor; therefore it is insisted that she can not be deemed to be a purchaser for a valuable consideration.
The contention is also further advanced that there are no facts to show the absence of knowledge or'notice on her part in respect to the rights of appellant at the time the land was assigned to her in the partition proceedings. It is true, as a general rule, that the payment of the purchase price or consideration of property by the purchaser, before notice,' either actual or constructive, of prior equities or rights existing against it, is an essential requisite, in order to defeat such
The facts show that after the death of Moorman partition proceedings were instituted in March, 1889, in the Randolph Circuit Court to divide the real estate owned by him at the date of his death and disposed of under his will. In these proceedings, certain lands belonging to his estate, together-with those in controversy, were set off jointly, it appears, to certain devisees under his will, appellee being included as one of the parties to whom such lands were so partitioned. In September, 1889, the land so partitioned to her and others, under the first proceedings, were again partitioned by an action in the Wayne Circuit Court, and the realty now involved was in that action set off and assigned in severalty to appellee, Mrs. Whitson, in lieu of all of the undivided interest which she held in common with her cotenants in the land set off to her and them jointly in the first partition proceedings. This latter partition appears to have been confirmed by the court, and appellee entered upon
At least it can be said, we think, under the facts, that by reason of appellant’s failure to comply with the requirements of the registry law in question, appellee has been placed in a position where she must suffer loss if appellant prevails in this action, and in the absence of notice upon her part, at the time of the partition proceedings in question, of appellant’s unrecorded assignment, she is entitled to invoke the rule which applies to and protects an innocent purchaser for value. The statute, as it will be seen, does not operate against the holder of an unrecorded assignment where the purchaser claiming title to the premises through a judicial sale has actual notice of the unregistered.assignment. The question, then, arises, under the circumstances, upon whom rests the burden of‘showing actual notice in regard to the unrecorded assignment in controversy? Was the appellee, in addition to showing that she was a purchaser for a valuable consideration, required also to establish the negative fact that she had no actual notice of the assignmeut of the mortgage at the time of her purchase? Or did it devolve upon appellant, under the statute in question, to allege and prove, as an affirmative fact, that appellee had such notice?
Appellee in her answer negatives the fact of notice or knowledge on her part of the equities, rights, or claims of appellant at the time the land was assigned to her.
The general rule supported by many authorities seems to be that, in cases where a purchaser of lands rests his claim upon the fact that he is one in good faith, he is required in his pleading setting up such a defense to deny that he had, at the time of the payment of the purchase price or consideration thereof, any notice of the secret, existing liens, equities, or rights sought to be enforced against the property in his hands. Gallion v. McCaslin, 1 Blackf. 91; Make
Another rule supported by the authorities is that the onus is cast upon a party who relies upon an unregistered deed or instrument, against one who claims to be a purchaser for a valuable consideration, without notice, of the property sought to be affected by such unrecorded deed or instrument, to allege and prove that such purchaser had notice or knowledge, at the time of his purchase of such deed or instrument.
The payment of a valuable consideration by such purchaser, as the authorities assert, raises a presumption in his favor of good faith in so doing; or, in other words, that at the time of the payment he had no knowledge of unrecorded titles, liens, equities, or rights of other persons, and the burden therefore rests upon the party asserting the contrary to overcome such presumption by proving actual notice. Morris v. Daniels, 35 Ohio St. 406; Center v. Bank, 22 Ala. 743; Bartlett v. Varner’s Executor, 56 Ala. 580; Pollak v. Davidson, 87 Ala. 551; Spofford v. Weston, 29 Me. 140; Ryder v. Rush, 102 Ill. 338; Rogers v. Wiley, 14 Ill. 65; Brown v. Welch, 18 Ill. 343; Bush v. Golden, 17 Conn. 594; Pomroy v. Stevens, 52 Mass. 244; Newton v. McLean, 41 Barb. (N. Y.), 285; Fisher’s Law of Mort. (5th ed.), §1105; White & Tudor’s Leading Cas. in Eq. 99; 16 Am. & Eng. Ency. of Law, 842.
This principle has been frequently recognized by this court in cases wherein it was sought to foreclose an unrecorded mortgage against a subsequent, purchaser for valué of' the mortgaged premises. In such cases it is held that, in order to enforce the unrecorded mortgage against the property in the hands of such purchaser, the plaintiff must allege and prove that the subsequent purchaser of the mortgaged premises had actual notice of the existence of the unrecorded mortgage at the time of his purchase. Magee v. Sanderson,
It follows therefore, and we are of the opinion that, under a true interpretation of the registry act of 1877, in connection with §2931 R. S. 1881 and Homer 1897, §3350 Burns 1894, the burden in this case rests upon appellant to prove actual knowledge upon the part of appellee, at the time the land was assigned to her in the partition proceedings in question, of its unrecorded assignment, in order to-excuse itself of its failure to register the same as the law provided. The burden, therefore, being upon appellant to-show that appellee had such notice and the special finding being silent upon that question, under the» well settled rule applicable to special findings and verdicts, such silence must be regarded as the equivalent of an express finding in her favor upon the fact of notice. Travelers Ins. Co. v. Patten, 98 Ind. 209.
Questions relative to the sufficiency of the evidence to-sustain the finding of the court, and also in regard to the competency of certain witnesses, are discussed by counsel for appellant. Counsel for appellee, -however, insist that these questions are not presented for our consideration for the-reason that what purports to be a bill of exceptions, embracing the evidence and the rulings of the trial court in admitting the evidence pf the witnesses in controversy, can not be deemed to be a part of the record. It is disclosed by the transcript that appellant’s motion for a new trial was overruled on May 6, 1896, and sixty days were then granted tot file bills of exceptions. The trial judge certifies in the bill under consideration as follows: “Be. it remembered, etc., that a bill of exceptions was presented to me on June 13th, 1896, and within the time given for that purpose, and I indorsed the time of presentation thereon, which bill being incorrect, now upon my own motion I have amended, the
There being no available error in the judgment, it is therefore affirmed.
Rehearing
On Petition fob Reheabing.
Appellant petitions for a rehearing upon the grounds, substantially, that the court erred, (1) in holding that the assignment of the mortgage in suit was subject to the registry act of 1877; (2) in holding that appellee, Whitson, was a bona fide purchaser; (3) in holding that the burden of proving that she had notice rested upon appellant; (4) in deciding that the evidence was not in the record.
Counsel in their brief filed in support of this petition disclaim any desire to re-argue the proposition originally advanced that the decision in the case of Connecticut, etc., Ins. Co. v. Talbot, 113 Ind. 373, is unsound; with the exception, however, that it is again insisted that a registry
It is not true, because a registry law is not made in plain terms to apply to deeds and other instruments previously executed, it consequently must be interpreted so as to relieve the holders of such instruments from recording them. In deciding that the act of 1877 applied to mortgages of record at the time it took effect, we were not necessarily required to give the statute a retrospective construction. Neither can it be successfully asserted that such holding disturbs any vested rights of appellant. The mortgage, which it held by assignment, was of record when the law in question went into effect, but the assignment thereof had not been recorded. It certainly can not be said .that it is a strained construction to hold that the law applied to such mortgages and required the previous assignments thereof to be recorded. The act simply assumed a regulation over such previous assignments as the one in question so as to require them, under its provisions, to be recorded, as we held, within a reasonable time after it went into force. To construe the act in controversy as applying only to mortgages of record, which were assigned after its passage, would, as held in the Talbot case, defeat the very object of the legislature in the remedy intended. Had the legislature intended, by the enactment of this law that it should be limited only to assignments made after its passage, it is not unreasonable to presume that the lawmakers would have used apt words to express such intention instead of employing terms which apply equally to assignments in esse at the time of its passage, as they do to those made thereafter. Having again carefully considered the authorities and arguments presented by counsel for appellant, we are
It is next earnestly contended that we erred in holding that the burden of proving that appellee had actual notice of the existence of the assignment at the time of her purchase rested upon appellant. The latter was the plaintiff below, and its mortgage, as we held, was subject to the provisions of the registry statute in question, and, having failed to place the assignment thereof upon the public records, certainly then, in order successfully to enforce its mortgage lien against the premises in the hands of appellee, it was required both to allege and prove that she, at the time of her purchase, had actual notice of the unregistered assignment. Appellant, under its complaint at least, undertook to advance the claim that the land held by her was subject to its mortgage; hence, in view of the statute, to sustain this- claim against her, under the circumstances in .this case, it was incumbent upon it to produce proof to show that she was affected at the time of her purchase by either constructive- notice, such as the public record would have afforded in case the assignment had been registered, or by actual knowledge thereof; otherwise, in the language of the law itself, she would hold the premises “free and discharged of the mortgage lien.” Or, in other words its failure to record the assignment as the law provided would render the mortgage void as against appellee, unless it could be shown that she had actual notice. §2931 R. S. 1881, and Horner 1897, §3350 Burns 1894.
The right of appellant to foreclose its mortgage against the lands in her hands, under the circumstances, was, to an extent at least, based upon the fact that she had notice of the unregistered assignment. The actual notice mentioned in the statute in question was intended to be equivalent to the constructive notice which would be afforded to subsequent
We have, in support of the rule which we affirmed at the original hearing, in respect to the burden of proving notice, supplied our opinion with a citation of the decisions of this court in regard to the rule recognized and upheld in the foreclosure of an unrecorded mortgage against a subsequent purchaser or mortgagee. In the case of Schmidt v. Zahrndt, 148 Ind. 447, it is said, on page 455 of the opinion: “The rule in this State is, that when it is shown, by the complaint or cross-complaint to foreclose a mortgage, that any of the defendants are subsequent mortgagees, that it must be alleged and proved that they took said subsequent mortgage with actual notice of the mortgage sued upon, or that it was recorded within the time fixed by statute, or before the execution of the subsequent mortgage.”
This last decision, and the others which it follows, disclose the interpretation in respect to the proof of notice which this court has given to §2931 R. S. 1881, and Homer 1897, §3350 Burns 1894, which requires that every conveyance or mortgage of lands, or any interest therein, shall be recorded, etc., and if not so recorded, such instrument shall he fraudulent and void against any subsequent purchaser or mortgagee in good faith for a valuable consideration. Cer
Appellant’s mortgage, on account of its neglect to' record its assignment, could have no force against appellee except upon the condition that it brought actual notice home to her.
It is true, as a legal proposition, that whenever, in the course of litigation, it becomes essential to affect a party with notice of a fact, the burden of proving such notice is upon the party who is required to allege it in his pleadings.
It must be remembered that appellant, in this case, was the plaintiff or actor in the lower court, seeking to enforce the right of foreclosing its mortgage against appellee’s land, and, in order to exempt its mortgage lien from the results which the Statute declares shall follow a failure to register an assignment, it was, as the authorities affirm, required to bring actual notice home to appellee. The latter was not seeking to enforce any right. By her answer she simply sought to defend against the right which appellant, under its complaint, asserted; and, while it is true the burden was upon her to prove that she was a purchaser for value, otherwise appellant would have prevailed regardless of the question of notice. The mere fact, however, that she denied in her answer what appellant w^as required to prove, did not, under the circumstances, east the burden upon her of proving such negative. The rule which we affirm upon the point involved depends in a manner upon the interpretation of the statute, and, hence, the cases of Giberson v. Jolley, 120 Ind. 301, and Schmueckle v. Waters, 125 Ind. 265, and others of like character cited by appellant, which assert a rule applicable to commercial paper, are therefore not in point. Neither are those which affirm that, where a negative fact is essential to the existence of a right sought to be enforced, the party claiming the right has the burden of proving such negative.
