Dissenting. — I do not concur in reversing this judgment, for the reason that on the whole record the judgment was unquestionably for the right party. I make no question as to the rule of shifting the burden of proof, as declared in the majority opinion. The possession by plaintiff of the note in question, it being a negotiable promissory note, under the endorsement of Bassett as payee, was prima-faeie evidence that plaintiff acquired it in the due course of trade before maturity, and that he was an innocent holder for value. This imposed upon defendant the burden of showing such facts as would rebut this presumption. Even if it be conceded that Bassett fraudulently procured the contract of lease, which was the consideration of the note, the record shows that the defendants did not stop there, but undertook to show affirmatively that plaintiff was nob an innocent holder, freed from any equities between defendants and Bassett, by putting in proof a conversation had between plaintiff and one of the defendants in the city of St. Joseph. The sum and whole substance of this admission of plaintiff was, that he may have taken the note in settlement of an antecedent debt from Bassett to him. Conceding this to be true, and this is all defendants can claim, this fact did not disprove that plaintiff was an innocent holder.
Whatever may be the better rule touching the vexed question of taking a note merely as collateral security for a preexisting debt, without more, the rule of law is now quite universally conceded to be, that a negotiable note taken prior to maturity in payment of an antece*371dent debt is not subject, in the hands of the transferee, to any equities between tbe original bolder and maker. 1 Daniel on Neg. Inst., secs. 826, 827, 831, 832; Blanchers v. Stevens, 3 Cush. 168; Manning v. McClure, 36 Ill. 498; Bank v. Heald, 25 Md. 563; Insurance Co. v. Church, 81 N. Y. 226; Bank v. Crow, 60 N. Y. 85.
As the evidence on tbe part of plaintiff was without contradiction, and, in fact, was hardly contested by defendants, at tbe trial, as evidenced by tbe fact that tbe defendants only sought, by tbe evidence introduced by them, to show that plaintiff bad merely taken tbe note in payment of an antecedent debt, there was really no issue of fact for tbe jury to pass upon. Tbe only fact, as admitted by the - majority opinion, which tbe plaintiff was called upon to prove in rebuttal of tbe defendants’ evidence, that tbe note was fraudulently obtained, was, that be bad taken tbe note before maturity for value. As already stated, this fact was virtually conceded by tbe defendants by their course at tbe trial. Besides, tbe evidence was so one-sided as to this fact, that it would have been tbe plain duty of tbe trial court to have set aside, on motion, a verdict of tbe jury finding otherwise. In such instance it cannot be error for tbe trial court to direct a verdict for the plaintiff. Tbe defendants were only relying upon tbe fact of tbe claimed admission of plaintiff as to bow be held tbe note. The law is, that such admission still made him an innocent bolder. Then why, when a judgment is so manifestly for tbe right party, and on tbe very theory on which defendants tried their case, should this court, on an empty technicality, reverse tbe judgment ? This is, in my opinion, sacrificing substance for mere form-a naked abstraction.