I concur in the result. Plaintiffs claim that the note and mortgage given in 1926, as well as their joint note and mortgage of June 6, 1938, are void for want of consideration. The burden of proving failure of consideration is on the party asserting it. In re McLaughlin's Estate, 182 Mich. 707; 2 Jones on Mortgages, § 764, p. 24; 41 C. J. § 212, pp. 390, 391. Plaintiffs have failed to *Page 451 establish the claim. If the notes and mortgages, given by plaintiffs to the bank, depended for consideration solely on the debt owed the bank by Elizabeth Turner's husband when he died insolvent, they would be void for want of consideration.
"A promissory note, given to a bank by a widow to take up a note given by her husband, who died insolvent, is void for want of consideration; the husband's note being worthless, in surrendering it nothing of value was parted with." Newman Snell's State Bank v. Hunter, 243 Mich. 331 (syllabus) (59 A.L.R. 311).
The same rule applies to a mortgage. Rosenberg v. Ford,85 Cal. 610 (24 P. 779).
However, Mrs. Turner received consideration from the bank for the 1926 mortgage when the bank allowed her to take title to the Beecher property. The bank held the Beecher mortgage, as security for her husband's debt, and, in effect, relinquished this security to Mrs. Turner.
The record sustains the conclusion that there was an understanding between Mrs. Turner and the bank to the effect that she was to give the bank a mortgage on her own property in consideration for this title. This has some support in the fact that the Turners did not question the validity of the 1926 mortgage until 12 years later, after they had given the bank the renewal mortgage in 1938.
I agree with Mr. Justice CHANDLER that plaintiffs' other claims are without merit.
Defendant may have a decree against both plaintiffs (cross-defendants herein) for foreclosure of the 1938 mortgage as prayed for in the cross bill, with costs of both courts. *Page 452