This is an action in foreclosure by the alleged assignee of a note and the real estate mortgage security, and to quiet title to the mortgaged premises.
Plaintiff in error, the Texas Title Guaranty Company, by verified answer pleaded ownership and lawful possession of the premises in itself, denied thе execution of the note and mortgage by the former owners and alleged mortgagors, denied thаt the instruments were assigned by the mortgagee, pleaded the five-year statute of limitations. and deniеd that an alleged payment Indorsed on the note within said statutory period was made.
The defendant mortgagors did not answer, and the cause proceeded to trial to the court, after jury waivеd, upon the issues as presented by the petition and the foregoing answer and the reply theretо. The parties will be referred to herein as they appeared at the trial.
Defendant stoоd upon its demurrer to plaintiff’s evidence when the same was overruled, declined to introduce its own evidence, and moved for judgment, whereupon the court rendered judgment for the plaintiff.
Defendant asserts that the plaintiff failed to sustain the burden of proof placed upon him to establish the execution of the note and mortgage, the assignment thereof, and the partial x>ayment indorsed uрon the note. It is here contended that 'the denial of these allegations by the verified answer рlaced the aforesaid burden upon plaintiff.
Plaintiff says the verification of the answer was irregulаr and insufficient, under the' provisions of the statute, to place the above allegations in issue. Thе statute, section 220, O. S. 1931, 12 Okla. Stat. Ann. sec. 286, provides, among other things, that allegations of the execution of a written instrument and indorsements thereon shall be taken as true unless the denial of the same be vеrified by the affidavit of the party, his agent or attorney. But the plaintiff proceeded to trial of thе issues without objection to the answer, and without challenging the sufficiency of the verification. He thereby waived any defects appearing in the verification, and the answer will stand as if properly verified. In Fort Worth Lead
&
Zinc Co. v. Robinson,
“Where the sufficiency of a verification to an answer denying the exeсution of a" note and mortgage is not challenged in the trial *600 court by motion to strike, the defects in said verification will be treated as waived.”
See, also, Ward v. Coleman,
The answer was therefore sufficient to place in issuе all the allegations of the petition, and the burden fell upon the plaintiff to establish the same.
Where, as here, the note is payable to the order of the payee (sec. 11348, O. S. 1931, 48 Okla. Stat. Ann. sec. 100), production of the note by a subsequent holder constitutes prima facie evidence of his ownership thereof. Jones v. Wheeler,
But the mere production of the note in such case bearing thereon an indorsement of partial payment is insufficient to establish payment as a toll of the statute of limitations. As stated in, 37 C. J. 1151, sec. 630, “It is the payment and not the indorsement on the evidence of debt that operates to toll the statute.” See, also, Hastie v. Burrage (Kan.)
In the instant case the plaintiff сlaims’ to have received the note and security from the i>ayee on April 28, 1919. The in-dorsement in questiоn reads as follows: “$100.00 Principal paid — September 28th, 1933, all interest paid to 9-1-1933. S. K. Heilman.” Action was instituted July 3, 1936. No evidence was offered to show that the payment was actually made by anyone or that such payment, if made, was received within five years before commencing the suit. Payment was denied аnd the issue properly raised under the defense of the statute of limitations, and iffaintiff failed entirely tо establish a prima facie case in this respect.
The court erred in overruling defendant’s demurrer and rendering judgment for plaintiff. The cause is reversed and remanded for further proceedings in conformity with the views herein expressed.
It is so ordered.