Eothrook, J.
1. PRACTICE: foreclosure of mortgage: pleadings. Copies of the note and mortgage were attached to petition as exhibits. The signatures thereto were not denied under oath. It was not therefore in-cumhent on the plaintiff to show that the signatures were genuine. It appears that under these circumstances the genuineness of the signatures is tobe deemed admitted. Code, § 2730. It is therefore wholly immaterial whether the note and mortgage were formally introduced in evidence or not. There was no issue as to the genuineness of the signatures thereto. This disposes of one matter of which there seems to be some contention between the parties.
2. — : —: burden of proof. It is urged by the appellent that the burden of proof was on the plaintiff to establish the allegations of her petition as to the priorty of her mortgage. This we think is . . , , a mistaken view ox the issues made by the parties. Thé plaintiff as the mortgagee sought the forclosure of the mortgage and by the petition in a general way required the defendant to disclose whether he held.any claim upon the land. The defendant by way of cross-claim set up certain assignments of a contract to convey, and avers that his assignors were the owners of the land. -His rights appear to have accrued after [562]*562the execution of the mortgage. It was therefore incumbent on him to show that his claim was.superior to the mortgage. It seems to be assumed by counsel for appellants that the court determined that the burden of proof was on the plaintiff when the order for taking the testimony was entered. But the state of the pleadings does not appear to have been under consideration at that time, and the order does not determine the question as to the burden of proof. In our opinion the decree of the District Court should be
Affirmed.
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