COMPROMISE OF ACTION BY ATTORNEYCHAMPERTY-DEATH DOES NOT REVOKE POWER COUPLED WITH

INTEREST.

SUPREME COURT OF THE UNITED STATES. FEBRUARY 4, 1884.

JEFFRIES V. MUTUAL LIFE INSURANCE Co. of NEW YORK.

K. died in Missouri, in 1871, having a policy of insurance on his life. J. was appointed there his administrator. L. and T., copartners as attorneys-at-law, brought a suit on the policy, in which, after a long litigation, there was a judgment for the plaintiff for $13,495, in 1877, in a Circuit Court of the United States. J. had died in 1873, and C. had been appointed administrator in his place, and substituted as plaintiff. The case was brought into this court, by the defendant, by a writ of error. Before it was heard here L. compromised the judgment with the defendant, in 1879, receiving in full $9,401.42, and entered satisfaction of the judgment on the record. C. then moved the Circuit Court to vacate the satisfaction, on the grounds that L. had no authority to enter it, and had been notified by C., after the compromise had been made and before the satisfaction had been entered, that he would not ratify the compromise, and that the compromise was unlawful because not authorized by the Probate Court. The Circuit Court heard the motion on affidavits, and found as a fact, that J., while administrator, entered into a contract with L. and T., whereby they agreed to prosecute the claim for a portion of the proceeds, with full power to compromise it as they should please, and that the claim was a doubtful one, and held that the compromise was rightly made, and that the plaintiff was bound by the contract of J., and denied the motion. On a writ of error by the plaintiff, Held:

(1) This court cannot review such finding of fact, there being evidence on both sides, and the error, if any, not being an error of law;

(2) The contract made was not champertous or unlawful, and J. had authority to make it;

(3) The contract having given to L. and T. a power coupled with an interest, the death of J. did not impair the authority to compromise, and C. was bound by it;

(4) L., having continued to be a copartner with T., so far as this case was concerned, had authority to make the compromise without the co-operation or consent of T.

IN

N error to the Circuit Court of the United States for the Eastern District of Missouri. The opinion states the case.

BLATCHFORD, J. On the 19th of August, 1871, one Allan A. Kennedy died in Franklin county, Missouri, having two policies of insurance on his life, one in the Economical Life Insurance Company, of Providence, R. I., for $5,000, and the other in the Mutual Life Insurance Company, of New York, the defendant in error, for $10,000. Charles W. Jeffries was appointed administrator of Kennedy, by the Probate Court of Franklin county. At that time Joseph S. Laurie and Thomas W. B. Crews were attorneys-at-law, and copartners as such, in St. Louis, Missouri.

The poli

cies were put into their hands for suit, and they brought a suit on each in the name of Jeffries, as plaintiff, in the State court of Missouri. The suits were both of them removed into the Circuit Court of the United States for the Eastern District of Missouri. In each suit an answer was put in setting up a breach of a warranty by the assured, in that in the application for the insurance he stated that he was a single man when he was a married man. In the suit against the Economical Company there was a demurrer to the answer, on the ground that the answer failed to allege that the misstatement was material to the risk. The demurrer was overruled by the Circuit Court and a judgment was entered for the defendant. On a writ of error, this court affirmed the judgment, at October Term, 1874, 22 Wall. 47. In the suit against

the defendant in error, which is the suit now before us, there was a reply to the answer, alleging that under the policy the misstatement was not a breach of a warranty, and that the statement was the representation of the agent of the company, and not that of the assured. In January, 1873, Charles W. Jeffries died, and the plaintiff in error, Cuthbert S. Jeffries, was appointed in his place administrator of Kennedy, and was substituted as plaintiff in this suit in March, 1873. In November, 1873, while the suit against the Economical Company was pending in this court, this suit was tried in the Circuit Court before the court without a jury. That court rendered a judgment for the plaintiff. The defendant brought the case to this court by a writ of error, and at October Term, 1875, the judgment was reversed, on the authority of the case in 22 Wall. and a new trial was awarded. In April, 1877, the case was again tried, and before a jury, which found a verdict for the plaintiff, but the Circuit Court set it aside. The case was tried again before a jury, in October, 1877, and a verdict was rendered for the plaintiff, on which a judgment in his favor was entered, October 9, 1877, for $13,495. On the 27th of October, 1877, the defendant sued out a writ of error returnable to this court at October Term, 1878. The case was docketed here, and the appearance of Joseph S. Laurie was entered for the defendant in error, the present plaintiff in error, and that of O. H. Palmer for the plaintiff in error, the present defendant in error. In February, 1879, Mr. Laurie compromised the judgment with the Mutual Company. Interest at six per cent was computed on the judgment from its entry to November 22, 1878, and added, and an abatement of $5,000 was then made, and the remainder, $9,401.42, was paid by the company to Mr. Laurie. He surrendered the policy to the company, a stipulation signed by Mr. Laurie and by Mr. Palmer, agreeing that the suit might be dismissed from the docket of this court without costs to either party as against the other, was presented to this court and filed, and on the 11th of March, 1879, an order was made by this court dismissing the writ of error, each party to pay his own costs. On the 15th of December, 1879, Mr. Laurie, as attorney for the plaintiff, entered satisfaction of the judgment on the margin of the record of the judgment, in the law record book in the office of the clerk of the Circuit Court, in the presence of the deputy clerk, who signed the entry as a witness, the entry being as follows: "I hereby enter satisfaction of this judgment in full, this 15th day of December, 1879. C. S. Jeffries, administrator, etc., by Joseph S. Laurie, his attorney." The plaintiff immediately filed a motion in the Circuit Court to vacate the entry of satisfaction, alleging as grounds therefor that the entry was made by Laurie without authority from the plaintiff, and in fraud of his rights, and without consulting him, and after Laurie had been notified that the plaintiff would not ratify the said compromise; that the plaintif had learned only a few days previously of the dismissal of the writ of error in March, 1879, and of the compromise made by Laurie, and had at ouce notified Laurie and the defendant that the compromise was made without authority from him and he would not ratify it; and that he could not authorize a compromise without the order of the Probate Court of Franklin county which order had not been made. The motion was supported and opposed by affidavits, the defendant appearing by counsel. The court, as appears from its opinion, which is set forth in the record, found as a fact, from the evidence before it, which evidence is before us, that Charles W. Jeffries, while administrator, entered into a contract with Mr. Laurie and Mr. Crews, whereby they agreed to prosecute the claim for a portion of the proceeds, with full power to compromise it as they should please, and that the claim

was a doubtful one.

On the ground of such express authority and of the doubtfulness of the claim the court held that the compromise was rightly made, notwithstanding the judgment. It also held that the plaintiff was bound by the contract made by his predecessor. An order was made overruling the motion, and afterward a motion for a rehearing, founded on further affidavits, was denied. A bill of exceptions setting forth all the papers used on both motions, and containing proper exceptions, was signed. Thereupon the plaintiff has brought the case to this court, on a writ of error.

It is contended for the plaintiff in error that the evidence was insufficient to warrant the finding that there was any contract between the first administrator and Mr. Laurie and Mr. Crews, authorizing a compromise; that the first administrator had no authority to make such a contract, or to make a compromise, without the sanction of the Probate Court; that the plaintiff was not bound by the contract made by the first administrator; and that Laurie had no authority to compromise without the co-operation of Crews.

As to the finding of fact that there was a contract by the first administrator giving to the attorneys an interest in the proceeds of the claim, with authority to compromise it, this court is prohibited, by section 1011 of the Revised Statutes, from reversing a case on a writ of error for any error in fact. In this case there was a dispute as to the fact, and evidence on both sides, and it was a fair exercise of the judgment of the court, on the evidence before it, to make the finding of fact it did. Under such circumstances, an erroneous finding of the fact cannot be held to be an error of law. Hyde v. Booraem, 16 Pet. 169, 176; Parks v. Turner, 12 How. 39, 43.

There is nothing to show that the Circuit Court was not correct in its conclusion that the right of recovery in the suit was very doubtful, notwithstanding the judgment. This being so, as the writ of error was pending, the compromise would seem to have been a proper one for the interests of the estate. It was said by this court, in Holker v. Parker, 7 Cranch, 436, 452, speaking by Chief Justice Marshall: "Although an attorney at law, merely as such, strictly speaking has no right to make a compromise, yet a court would be disinclined to disturb one which was not so unreasonable in itself as to be exclaimed against by all, and to create an impression that the judgment of the attorney has been imposed on or not fairly exercised in the case."

We do not perceive that there was any want of authority in the first administrator to make the contract he did. The contract was not champertous under the laws of Missouri. Duke v. Harper, 66 Mo. 51. The attorneys did not agree to pay any part of the costs or expenses of the litigation. Nor do we find in the statutes of Missouri which are cited, nor in any of its judicial decisions, any thing which forbids the making of such a contract as the Circuit Court found to have been made in this case. The administrator had the usual power of a trustee over the estate, under his responsibility for a breach of his trust. Perry on Trusts, § 482; Overfield v. Bullitt, 1 Mo. 537. The authority given to him by statute (Wag. Stat., vol. 1, p. 87, § 26) to commence and prosecute actions fairly includes the power to make such reasonable contracts in regard to compensation and the compromising of actions on doubtful claims as the circumstances of particular cases may justify. The fact of the enactment in Missouri of a statute which went into effect November 1, 1879 (Rev. Stat. of Mo. of 1879, vol. 1, p. 37, § 242), giving power to an administrator to compound with a debtor, with the approbation of the judge of probate, does not imply that the power did not exist before without such approba

tion. This transaction occurred before such enactment. An administrator has general power to dispose of the personal effects of his intestate (2 Williams on Exrs. [6th Am. ed.], p. 998), and to compound a debt, if it is for the benefit of the trust estate. 3 id., p. 1900, and note g. And even when statutes exist providing for compromises with debtors with the approval of a Probate Court, it is held that the right to compromise which before existed is not taken away, but may be exercised subject to the burden of showing that the compromise was beneficial to the estate. Wyman's Appeal, 13 N. H. 18; Chouteau v. Suydam, 21 N. Y. 179; Chadbourne v. Chadbourne, 9 Allen, 173.

The contract made by the first administrator having given to the attorneys a power coupled with an interest, the authority to compromise was not impaired by the death of the first administrator, and his successor was bound by the contract. Story on Agency, §§ 476, 477.

It is apparent, from the record, that Mr. Laurie continued to be a copartner with Mr. Crews so far as this case was concerned. That being so he had authority to make the compromise in question without the cooperation or consent of Mr. Crews.

No error of law is found in the proceedings in the Circuit Court, and its orders, made January 26, 1880, aud March 10, 1880, are

Affirmed.

TRUTH OF SLANDEROUS CHARGE NEED NOT BE PROVED BEYOND REASON

ABLE DOUBT.

OHIO SUPREME COURT COMMISSION. JANUARY TERM, 1883.

BELL V. MCGINNESS.*

In an action of slander, for words which imputed to the plaintiff the crime of stealing a horse, the defendant as a defense pleaded the truth of the defamatory words. Held, that to maintain this defense, it was not necessary that it be proved beyond a reasonable doubt.

A

CTION for slander. The opinion states the case.
Defendant below took a writ of error.

Wallace & Billingsley, Jones & Murray and E. S. Holloway, for plaintiff in error.

J. A. Ambler, for defendant in error. MCCAULEY, J. The original action in the common pleas was for slander. The slanderous words alleged in the petition were: "He stole the horse, without a doubt; there is so much evidence against him that it will convict him."

The defendant, as a defense, alleged the truth of the defamatory words, and on the trial offered evidence tending to prove his defense.

Upon the trial the court charged the jury that to maintain this defense it must be proved beyond a reasonable doubt.

This instruction to the jury is assigned for error.

The cases in Ohio, bearing upon the correctness of this instruction, are Lexington Ins. Co. v. Paver, 16 Ohio, 324; Strader v. Mullane et al., 17 Ohio St. 624; Jones v. Greaves, 26 id. 2; Lyon v. Fleahmann, 34 id. 151; and Shaul v. Norman, id. 157.

The defamatory words, alleged in the petition, amount to a charge of felony.

Only one of the cases above referred to, 16 Ohio, 324, sustains the charge given in the Common Pleas. The other cases, while the rule of preponderance of evidence was held applicable in each of them, were all for misdemeanors or for fraudulent acts not amounting to criminal offenses.

*Appearing in 40 Ohio State Reports.

The plain tendency of these cases however is to apply the rule of preponderance of proof in all issues in civil cases.

A finding for the government against the citizen may be followed by deprivation of life or liberty, and hence the propriety of the rule that no such finding should be made without the strong and clear proof required by the rule, beyond a reasonable doubt. But in a controversy between man and man, affecting nothing but a claim, or a defense to damages, and involving nothing but pecuniary or property interests, the reason of the rule wholly fails, and the parties should be on an equality as to the quantum of proof required to establish any material fact. The tendency of modern decisions in other States is to the view we have here taken. Kane v. Hibernia Ins Co., 10 Vroom, 697; Welsh v. Jugenheimer, 56 Iowa, 11; Behrens v. Ins. Co., 58 id. 26; Blazer v. Ins. Co., 37 Wis. 31; Thayer v. Bogle, 30 Me. 475; Elliott v. Van Buren, 33 Mich. 51; Gordon v. Parmelee, 15 Gray, 416; Folsom v. Brown, 25 N. H. 114; Bradis v. Bliss, 35 Vt. 326; Prather v. Mich. Mut. Life Ins. Co., 7 Rep. 293.

The view we have taken of the question presented in the charge of the court, in the Common Pleas, requires a reversal of the judgment of that court, and we therefore take no notice of the error assigned, that the court erred in overruling a motion for a new trial on the ground that the verdict was not supported by sufficient evidence. Judgment reversed.

UNITED STATES SUPREME COURT ABSTRACT.

JANUARY 7, 1884.

APPEAL JURISDICTION DEPENDENT ON AMOUNT.— The judgment in this case is for $7,275.16, but it appears affirmatively on the face of the record that of this amount $2,669.03 was not disputed below. Held, that this court has no jurisdiction. Gray v. Blanchard, 97 U. S. 564; Tintsman v. National Bank, 100 id. 6; and Hilton v. Dickinson, 108 id. Jenness v. Citizens' National Bank of Rome. Opinion by Waite,

C. J.

BANK-AUTHORITY OF CASHIER TO REPRESENTPRESUMPTION FROM COURSE OF BUSINESS.-A banking corporation, whose charter does not otherwise provide, may be represented by its cashier in transactions outside of his ordinary duties, without his authority to do so being in writing, or appearing in the records of the proceedings of the directors. His authority may be by parol and collected from circumstances or implied from the conduct or acquiescence of the directors. It may be inferred from the general manner in which, for a period sufficiently long to establish a settled course of business, he has been suffered by the directors, without interference or inquiry, to conduct the affairs of the bank. When during a series of years, or in numerous business transactions, he has been permitted in his official capacity, and without objection, to pursue a particular course of conduct, it may be presumed, as between the bank and those who in good faith deal with it upon the basis of his authority to represent the corporation, that he has acted in conformity with instructions received from those who have the right to control its operations. That which directors ought, by proper diligence, to have known as to the general course of the bank's business, they may be presumed to have known in any contest between the corporation and those who are justified by the circumstances in dealing with it upon the basis of that course of business. Martin v. Webb. Opinion by Harlan, J.

PRACTICE-EXCEPTION MUST BE TAKEN AT TRIAL.The rule is well established and of long standing that an exception to be of any avail must be taken at the trial. It may be reduced to form and signed afterward, but the fact that it was seasonably taken must appear affirmatively in the record by a bill of exceptions duly allowed or otherwise. Phelps v. Mayer, 15 How. 160; United States v. Breitling, 20 id. 254; French v. Edwards, 13 Wall. 516; Stanton v. Embrey, 93 U. S. 555; Hunnicutt v. Peyton, 102 id. 354. United States v. Carey. Opinion by Waite, C. J.

PROBATE LAW-DEBTS ASSETS AT DECEDENT'S DOMICIL DEBTS DUE FROM UNITED STATES-MANDAMUS--UNITED STATES TREASURER.—(1) The general rule of law is well settled, that for the purpose of founding administration all simple contract debts are assets at the domicil of the debtor; and that the locality of such a debt for this purpose is not affected by a bill of exchange or promissory note having been given for it, because the bill or note does not alter the nature of the debt, but is merely evidence of it, and therefore the debt is assets where the debtor lives, without regard to the place where the instrument is found or payable. Yeomans v. Bradshaw, Carth. 373; S. C., Comb. 392; Holt, 42; 3 Salk. 70, 164; Abinger, C. B. in Attorney-General v. Bouwens, 4 M. & W. 171, 191; S. C., 1 Horn & Hurlstone, 319, 324; Parke, B., in Mondel v. Steel, 1 Dowl. (N. S.) 155, 157; Slocum v. Sanford, 2 Conn. 533; Chapman v. Fish, 6 Hill, 554; Owen v. Miller, 10 Ohio State, 136; Pinney v. McGregory, 102 Mass. 186. An administrator is of course obliged to demand payment at the place where the bill or note is payable; and he may find difficulty, unless it is payable to bearer, in suing upon it in a place in which he has not taken out administration. But payment to the administrator appointed in the State in which the intestate had his domicil at the time of his death, whether made within or without that State, is good against any administrator appointed elsewhere. Wilkins v. Ellett, 9 Wall. 740. (2) Debts due from the United States are not local assets at the seat of government only. As was said in Vaughan v. Northup, 15 Pet. 1, 6, and repeated in Mackey v. Coxe, 18 How. 100, 105: "The debts due from the government of the United States have no locality at the seat of government. The United States, in their sovereign capacity, have no particular place of domicil, but possess, in contemplation of law, an ubiquity throughout the Union; and the debts due by them are not to be treated like the debts of a private debtor, which constitute local assets in his own domicil. On the contrary, the administrator of a creditor of the government, duly appointed in the State where he was domiciled at the time of his death, has full authority to receive payment and give a full discharge of the debt due to his intestate, in any place where the government may choose to pay it." In Vaughan v. Northup, an administrator, appointed in Kentucky, of an inhabitant of that State, who died there intestate and childless, received a sum of money from the treasury of the United States, for military services rendered by the intestate during the Revolutionary War; and a bill in equity, filed against him in the District of Columbia by the next of kin, for their distributive shares of the money, was dismissed for want of jurisdiction, because an administrator, appointed in and deriving his authority from one State, was not liable to be sued elsewhere, in his official character, for assets lawfully received by him under and in virtue of his original letters of administration. (3) The treasurer of the United States cannot be compelled by writ of mandamus to pay to an administrator appointed in the District of Columbia, of an inhabitant of one of the States of the Union, the amount of a draft payable to the in

testate at the treasury out of an appropriation made by Congress, and held by such administrator. Wyman v. United States. Opinion by Gray, J.

UNITED STATES CIRCUIT COURT ABSTRACT. *

CHINESE- CONSTRUCTION OF STATUTE LAW APPLIES TO RACE. A Chinese laborer, born on the island of Hong Kong after its cession to Great Britain, is within the provisions of the act of Congress of May 6, 1882, restricting the immigration of Chinese laborers to the United States. The purpose of the act was to exclude laborers coming from China subject to the stipulations of the treaty of 1880 with that country, and to exclude laborers of the Chinese race coming from any other part of the world. U. S. Circuit Court, California. September 24, 1883. Matter of Ah Lung. Opinion by Field, J.

CONSTITUTIONAL LAW-STATE INTERFERENCE WITH SEA-GOING VESSELS. - The State board of railroad commissioners has no power to regulate or interfere

with the transportation of persons or merchandise, by a steamship company, between ports within the State, if they be in transit to or from other States, or when in navigating the ocean the vessel goes beyond a marine league from the shore. This power has been conferred upon Congress, and is exclusive. U. S. Circuit Court, California. September 17, 1883. Pacific Coast Steamship Co. v. Railroad Commissioners of California. Opinion by Field, J.

REMOVAL OF CAUSE-PRACTICE — GARNISHMENT OF JUDGMENT.-In cases removed from a State court the Circuit Court will not review orders made prior to the removal, if the State court acted within its jurisdiction. It will take the case precisely as it finds it, accepting all prior decrees and orders as adjudications in the cause. Hence, where the judgment of a Federal court had been garnished and the State court had made an order upholding the proceeding, the Circuit Court declined to review the propriety of this order. It seems however that the court whose judgment was thus garnished might properly disregard the writ. Duncan v. Gegan, 101 U. S. 810; French v. Hay, 22 Wall. 231; Brooks v. Farwell, 4 Fed. Rep. 166; Werthein v. Continental Railway & Trust Co., 11 id. 689; Milligan v. Lalance, etc., Co., 17 id. 465; Smith v. Schwed, 11, Rep. 730. U. S. Circuit Court, E. D. Michigan. October 15, 1883. Loomis v. Harrington. Opinion by Brown, J.

REMOVAL OF CAUSE-EMINENT DOMAIN PROCEEDINGS.-A judicial proceeding to appropriate private property to the use of a railway corporation is subject to the usual incidents of a civil action or suit, including the liability to removal into the Circuit Court. U. S. Circuit Court, Oregon. November 16, 1883. Northern Pacific Terminal Co. v. Lowenberg. Opinion by Deady, J.

the presumptions are in favor of a finding of the trial court that the appearance of the attorney at law is binding upon the defendant, yet if the uncontradicted evidence establishes that the attorney appeared for the defendant without his knowledge or authority, express or implied, and that the defendant never ratified the act of the attorney, and promptly disavowed it, such finding is without support. Butcher v. Bank, 2 Kans. 70; Railway Co. v. Streeter, 8 id. 133; Foreman v. Carter, 9 id. 674; Hanson v. Wolcott, 19 id. 207; Mastin v. Gray, id. 458; Shelton v. Tiffin, 47 U. S. 163; Critchfield v. Porter, 3 Ohio, 518; Harshey v. Blackmarr, 20 Iowa, 61: Lawrence v. Jarvis, 32 Ill. 304; Arnott v. Webb, 1 Dill. 362; Price v. Ward, 1 Dutch. 225; Pennywit v. Foote, 27 Ohio St. 600; Dobbin v. Dupree, 39 Ga. 394; Wiley v. Pratt, 23 Ind. 628. See also Wetherby v. Wetherby, 20 Wis. 526; Ferguson v. Crawford, 70 N. Y. 253; Clark v. Little, 41 Iowa, 497. Reynolds v. Fleming. Opinion by Horton, C. J. EVIDENCE PAROL-BAILMENT ESTOPPEL AS TO TITLE. -(1)While a written instrument which contains simply an acknowledgment of payment or delivery is only prima

CONTRADICTION OF INSTRUMENT BY

facie evidence of the fact, and may be contradicted by

oral testimony, yet when in addition to such acknowledgment it contains an agreement to do any thing in respect to the property delivered, then as to this latter matter it stands on the basis of any other written contract, and cannot be contradicted or varied by parol testimony. (2) The general rule is, that a bailee receiving goods from his bailor cannot set up title in himself at the time of the bailment, for the purpose of defeating a recovery by the bailor. Vosburgh v. Huntington, 15 Abb. Pr. 254; Simpson v. Wren, 50 Ill. 222; Kelly v. Patchell, 5 West Va. 585. Thompson v. Williams. Opinion by Brewer, J.

WHEN

INJUNCTION-LIABILITY ON UNDERTAKING SUIT DISCONTINUED.-Where a plaintiff, on commencing a suit and obtaining a temporary injunction, gives an undertaking to secure to the party injured the damages he may sustain if it be finally decided that the injunction ought not to have been granted, and subsequently appears in court and dismisses the action, without prejudice to a future action, and the court enters judgment dismissing the action, such judgment is equivalent to a final decision by the court that the plaintiff was not entitled to the temporary order of injunction, and after the judgment an action lies upon the injunction undertaking. Carpenter v. Wright, 4 Bosw. 655; Cunningham v. White, 45 How. Pr. 486; Dowling v. Polack, 18 Cal. 625; Loomis v. Brown, 16 Bark. 325; Sherman v. Central Mills, 11 How. Pr. 269; Coates v. Coates, 1 Duer, 644. See also Marbourg v. Smith, 11 Kas. 554; Fox v. Hudson, 20 id. 247. Mitchell v. Sullivan. Opinion by Horton, C. J.

PROBATE LAW-ADMINISTRATOR CANNOT COMPROMISE CLAIM WITHOUT CONSENT OF COURT. An administrator has no power to compromise any claim, debt or demand belonging to the estate in his hands to be administered, and accruing in the life-time of the deceased, so as to bind the estate, without the consent of the Probate Court. Fox v. Van Norman, 11 Kas. 214; Reitzell v. Miller, 25 Ill. 68; Clark v. Hogel, 54 id. 227; Stagg v. Lennefiser, 50 Mo. 341; Cape Girardeau County v. Harbison, 58 id. 90; Parham v. Stith, 56 Miss. 465. Etna Life Insurance Co. v. Swayze. Opinion by Horton, C. J.

MORTGAGE-PRIORITY AS BETWEEN RECORDED AND UNRECORDED-BURDEN OF PROOF.-One who seeks to have priority given to an unrecorded over a later and recorded mortgage, has the burden of proof, and must affirmatively show actual notice. A purchaser of a re