
    OESTERLE v. KINNE.
    1. Witnesses — Evidence — Matters Equally Within Knowledge of Deceased.
    In a suit to foreclose a real estate mortgage, where one of the mortgagees had died and the survivor was mentally incompetent, defendants were precluded, under the statute, from testifying as to payments made to deceased. .
    2. Mortgages — Foreclosure—Burden of Proof.
    The burden of proof to establish that no payments vvere due and unpaid on a mortgage, in a foreclosure suit, was on defendants.
    3. Same — Finding That Nothing Was Due Justified.
    In a suit to foreclose a mortgage, the finding of the court below that interest was paid at the time payments on principal were made, as evidenced by both receipts and indorsements on the note, and, therefore, nothing was due at the time the bill was filed, held,, justified by the record.
    Appeal from Ingham; Collingwood (Charlés B.), J.
    Submitted June 13, 1928.
    (Docket No. 110, Calendar No. 33,787.)
    Decided July 24, 1928.
    Bill by Agnes Oesterle, a mentally incompetent person, by John Oesterle, Jr., guardian, against Ray Kinne and another to foreclose a mortgage. From a decree dismissing the bill, plaintiff appeals.
    Affirmed.
    
      Joseph W. Planck and W. S. Seelye, for plaintiff.
    
      William C. Brown and Thomas A. Lawler, for defendants.
   Sharpe, J.

This suit is brought by John Oesterle, Jr., guardian of his mother, Agnes Oesterle, a mentally incompetent person, to foreclose a real estate mortgage given by the defendants to. John Oesterle, Sr.i now deceased, and his wife, Agnes, “jointly, or survivor thereof.” The defendants answered, denying that any payments were due thereon. The mortgage secured the payment of a promissory note for $3,600, dated April 6, 1920, payable in 10 years, with interest at 5 per cent, per annum, payable annually. The mortgagors had the privilege of making payments on the principal at any interest-paying period in sums of $100 or more. The note and mortgage were found by the guardian among the papers of his ward.

The defendants are precluded from testifying by the statute. The evidence of the payments made consists of receipts given the defendants by the deceased and indorsements made by him on the note. His signature on the several receipts was, we think,' sufficiently identified. On the back of the note is a space for listing the payments made on the principal, and another for listing payments of interest. No writing appears on the latter, but on the former were certain dates and figures clearly indicating that $1,995 had been paid on the principal thereof. Some of the receipts plainly stated that a certain amount was paid on principal and also a stated amount on interest. Others stated that the interest had been paid and a certain sum on the principal. Others simply stated that a certain sum had been paid “to apply on mortgage.” These sums agreed with the indorsements on the note of payments made on the principal.

The burden of proof to establish payment was on the defendants. Plaintiff insists that the penmanship' on some of the receipts bears such evidence “of tampering and fraud” that under the rule stated defendants should not be credited therewith. The trial court was not satisfied, nor are we, after a careful inspection of the receipts, that such claim can be maintained. In support of this finding it may be said that the several amounts of principal paid indorsed on the note are also plainly stated on the receipts. It is contended that no inference can be drawn that the interest was paid at the time some of the indorsements of principal were made, as the receipts do not definitely so state. Several of thé receipts state the amount of interest paid at the time of the payment on principal, and one of them states that the interest was paid at that time, without stating the amount.

It seems improbable that the deceased would have accepted and receipted for payments of principal if there was unpaid interest then due without its payment. It is unfortunate that more satisfactory proof of interest payments made at these times could not have been made. As before stated, the defendants were precluded from testifying. We feel constrained to agree with the trial judge in his finding that interest due was paid at the time the payments on principal were made as evidenced by both the receipts and the indorsements made on the note, which note from all that appears was always in the possession of the deceased.

Counsel for plaintiff conceded at the hearing that, if such payments be credited on the note and mortgage, there was nothing due thereon at the time the bill was filed.

The decree dismissing the bill will therefore be affirmed, with costs to appellees.

Fead, C. J., and North, Fellows, Wiest, Clark, McDonald, and Potter, JJ., concurred.  