Before entering upon the consideration of the issues raised by the pleadings in this case, we wish to remark in relation to the testimony of the witness Conkey, with regard to an agreement as to which of these mortgages were to be first filed for record, that we are not at liberty to view the evidence of this agreement, in the light in which defendant insists that it must be viewed. We can consider this agreement, only as a circumstance tending to show that defendant’s mortgage was first executed, and not as a valid agreement, whereby the priority of plaintiff’s lien may be affected, provided that defendant’s mortgage was subsequently executed, with notice to bim of plaintiff’s prior lien. The reason of this is, that defendant has not by his answer, tendered any such issue as that, although plaintiff’s mortgage was first executed, yet it was agreed between, the parties, that defendant’s should have priority of lien. Had such' issue been tendered to plaintiff, he might perhaps have been ready with proof to meet it. Not being tendered, it was' not incumbent upon him to be so. The issues made by the pleadings, are those only which the court can determine. Had such an issue been made, the evidence of Conkey should be viewed in a different light than it can now be viewed. We think the legitimate questions that arise from the pleadings are, has the plaintiff' shown by the evidence, that his mortgage was first executed, and that defendant took his mortgage with notice of plaintiff’s lien ?

However the rights of Iona fide purchasers might be affected, on account of the defendant’s mortgage being first recorded, as between the immediate parties, we cannot regard it very material in a court of equity which was first recorded, provided the party procuring his to be first recorded, had actual notice of the existence of the mortgage of the other party, at the time of procuring his, and causing it to be recorded. The mortgage of defendant, bearing the same date with that of plaintiff, and bearing filing for record a half hour previous to that of plaintiff, in the absence of other proof, raises the presumption that defendant’s was first exe*392cuted. To overcome this presumption, the burden of proof rests with the plaintiff.

Has he shown that his mortgage was, in point of fact, first executed ? We can arrive at no other conclusion than that he has. The mortgagor distinctly swears to this, and the statement of Camp, which is received in evidence by agreement, shows that defendant’s mortgage was subsequently drawn; and the inference is quite irresistible, from this statement, that it was drawn while plaintiff was procuring his to be executed. The answer, not being upon oath, the testimony of these witnesses leaves the fact almost unquestionably proved. With regard to the fact, as to whether the defendant had notice of the execution of plaintiff’s mortgage, at the time of the execution of defendant’s, we think the evidence is quite conclusive.

These facts existing, plaintiff had unquestionably a priority of lien. Having proved them to exist, the presumption arising from the date of filing for record, was overcome, and a prima facie case made out for plaintiff. To overcome this, it was competent for the defendant, in his answer, if it were the fact, that plaintiff had divested himself of this right of priority by agreement, to have confessed notice, and avoided, by setting up the agreem ent. He did not choose to do so, and we axe to try the issues joined by the parties. It would be fully as proper, if we so believed from the evidence, which we are strongly inclined to believe, and which reconciles all the evidence in the case, to hold that a mistake was made in giving directions to the recorder, the plaintiff not having set up a claim of this kind in his bill, as to bold that plaintiff’s priority of lien, had been divested by an agreement, tbe defendant not having set up tbis claim in bis answer. We conclude, therefore, tbat the equity of the case is with the complainant. The decree of the District Court will be reversed, and a decree entered in this court in accordance with the prayer of the petition.