
    M. P. Beebe, appellant, v. Albert Bahr et al., appellees.
    Filed April 13, 1909.
    No. 15,632.
    Mortgages: Foreclosure: Burden oe Prooe. In an action to foreclose a real estate mortgage, when the allegations of the petition are denied, the burden is on plaintiff to make prima facie proof that no action at law has been instituted for the recovery of the debt.
    Appeal from the district court for Keya Palm county: James J. Harrington, Judge.
    
      Affirmed.
    
    
      W. 0. Brown, for appellant.
    
      G. E. Lear and II. M. Duval, contra.
    
   Good, C.

Plaintiff brought this action in the district court for Keya Paha county to foreclose a mortgage on real estate situate in said county. Defendants denied all the allegations of the petition, and averred that the mortgage lien had been extinguished in tax lien foreclosure proceedings had against the land subsequent to the execution of the mortgage. Defendants had judgment, and plaintiff has appealed.

It is unnecessary to consider any of the plaintiff’s assignments of error. Plaintiff’s petition contained the allegation that no suit, either in law or in equity, had been instituted for the recovery of the debt secured by the mortgage. This allegation of the petition was denied in the answer, and is not sustained by any evidence in the record. It has been repeatedly held by this court that the allegation, although a negative one, unless admitted, must be proved in order to entitle plaintiff to a decree of foreclosure. Jones v. Burtis, 57 Neb. 604; Kirby v. Shrader, 58 Neb. 316; Miller v. Nicodemus, 58 Neb. 352; Lancashire Ins. Co. v. Kierstead, 1 Neb. (Unof.) 437; Plummer v. Park, 62 Neb. 665; Omaha Savings Bank v. Boonstra, 3 Neb. (Unof.) 382; Hedbloom v. Pierson 2 Neb. (Unof.) 799; Drury v. Roberts, 2 Neb. (Unof.) 574.

It follows that the judgment of the district court is right, and we recommend that it be affirmed.

Duffie, Epperson and Calkins, CC., concur.

By the Court: For the reasons given in the foregoing opinion, the judgment of the district court is

Affirmed.  