
    Vaughn et al. v. Eckler et al.
    1. Mortgage Foreclosure: priority of liens: burden of proof. Where, in an action to foreclose a mortgage, the plaintiff alleges that a defendant claims to have a lien upon the premises, but that the same is inferior to the mortgage, and the defendant answers, admitting the mortgage, and setting up his lien, and alleging that it is superior to the mortgage, the defendant has the burden of proof to establish the superiority of his lien.
    2. Evidence: secondary not objected to. A material fact may be established by secondary evidence when no objection is raised.
    
      .^Appeal from Jones Circuit Court.
    
    Tuesday, June 22.
    This is an action in equity for the foreclosure of a mortgage upon certain real estate. The defendant Eckler-claimed an attachment lien upon an undivided half of the land. The question presented by the pleadings was whether the mortgage or the attachment was the prior lien. The circuit court found that the attachment was superior to the mortgage. Plaintiffs appeal.
    
      F. 0. Ellison, for ajjpellants.
    
      ■Bemley <& Ereanbrack, for appellees.
   Eo'rnRooK, J.

The petition is in the ordinary form of a petition for the foreclosure of a mortgage. It is averred therein that William Eckler has, or claims to i , . . , . , .. , nave, some claim or interest m said real estate; . 7 but that whatever it may be, it is junior and inferior to plaintiffs’ mortgage; and a decree is prayed declaring the same to be junior and inferior to the lien of jdaintiffs’ mortgage. The mortgage was made by C. S. Gilbert and Daniel Stuart, and the plaintiffs claim that the mortgaged real estate was partnership property, and that the same was given to secure a partnership debt of the firm of Gilbert & Stuart, which firm was composed of 0. S. Gilbert and Daniel Stuart as equal partners. The answer of Eckler admits the execution of plaintiffs’ mortgage, but denies that the same is prior or superior to his lien, and denies all the other allegations of the petition. It is further averred in the answer that the said mortgaged real estate was owned by Gilbert and Stuart, each owning an undivided half of the same, and that before the execution of the mortgage the said' Eckler caused an attachment to be issued and levied upon said premises in an action against the said 0. S. Gilbert, and that afterwards a judgment was rendered against said Gilbert in said attachment suit; that said attachment and judgment are alien on the undivided one-lialf of said real estate owned by said Gilbert; and that said lien is prior and superior to the lien of plaintiffs’ mortgage. And it is prayed in the answer that said attachment and judgment lien be decreed to be prior to the lien of the plaintiffs’ mortgage upon all the interest of said Gilbert in said real estate.

Counsel for appellants claim that the decree should be reversed because the defendant Eckler made no proof of his alleged lien. The record does not show that such proof was made. Counsel for defendant insist that the answer was in the nature of a counter-claim, and that, as it was not denied by a reply, no proof was necessary, but that it was admitted by the pleadings. We do not think that any reply was necessary, because, in our opinion, no counter-claim was pleaded. It was surely unnecessary for the plaintiff, by way of reply, to repeat what he had alleged in his petition; and this was about the only reply that could have been made. And the record shows that the defendant Eckler assumed the burden of proof in the circuit court, and did not raise the question that a reply was necessary. The answer of the defendant admitted the plaintiffs’ mortgage lien, but averred that defendants’ lien was prior and superior. It was incumbent on him to show that he had a lien. He did not even do this, — much less show that it was superior to tbe lien of tbe plaintiffs’ mortgage.

It is further claimed by the defendant that there was no proper proof of the alleged debt due from Gilbert & Stuart to plaiWiff. It is true, the note and mortgage weve not introduced in evidence. But the mortgage was admitted in the answer, and there was secondary evidence introduced by the plaintiff which showed every fact necessary to be established to entitle ln'm to a judgment and decree, and the secondary evidence was not objected to by defendant. The mortgage was not executed until some time after the debt accrued and the note was given. The answer averred that the mortgage was given without consideration. But the evidence very clearly shows that the mortgage was given to secure the debt, in pursuance of an agreement between the parties made at the time the debt was contracted.

We think that the decree of the circuit court must be

Reversed.  