¶1 There was evidence, offered by defendants tending to show that the title of payee, by whom plaintiff alleged the note was negotiated to him, was defective, in that its execution was procured by -the fraud of said payee, C. S., 3036; plaintiff contended that such defense was not available as against him, for that he is a holder of said note in due course. The presumption, by virtue of O. S., 3040, that plaintiff, as holder of said note was a holder in due course, and therefore held the note free from any defect in the title of the payee, C. S., 3038, did not apply, upon the finding by the jury, from the evidence, that the title of payee was ■ defective as alleged by defendants. The burden was upon plaintiff to prove that he acquired title as a holder in *230 due course, C. S., 3040. He was therefore required to prove that he took the note, by indorsement, of the payee, upon the conditions set out in C. S., 3033. See citations under respective sections of Consolidated Statutes.
¶2 His Honor so instructed the jury. Assignments of error based upon exceptions to the charge cannot be sustained.
¶3 We have examined the exceptions to the admission of evidence tending to show the circumstances under which the note was executed by defendants and transferred to plaintiff. This evidence was competent to sustain 'defendants’ allegations that the execution of the note was procured by fraud of the payee, and that plaintiff took the note with full knowledge of such circumstances. The exceptions cannot be sustained. Judgment affirmed. There is
¶4 No error.