*93The opinion of the court was delivered by

Action in replevin, Vernon J. Miller, the plaintiff, claiming special ownership in certain cattle, and the immediate possession thereof by virtue of two chattel mortgages — one executed on the 5th day of August, 1886, by E. I). Green to S. G. Miller, to secure the payment of $417.85, but filed August 21, 1886, and the other given by Moses Hickman to Edwin Green, on the 2d day of November, 1887, to secure the payment of $930, but not filed for record until the 22d day of November, 1887. McElwain alleged he purchased, in good faith, the stock on the 15th day of November, 1887, before the filing of the mortgage. To the original petition, McElwain filed an answer containing a general denial. Upon the trial, plaintiff filed an amended petition, setting forth a further special interest in the property by virtue of the chattel mortgage of the 5th of August, 1886, given by Green to Miller. No answer was filed-to-the amended petition, but the case was tried by the court, and all the parties, without objection, upon the theory that the general denial filed to the original petition was also an answer to the petition as amended. Under these circumstances, we cannot, in this court, treat the defendant as in default of answer in the trial court.

It appeared upon the trial that the evidence was conflicting whether the cattle replevied were included in the chattel mortgage from Green to Miller of August 5, 1886; and it further appeared that the plaintiff obtained from Moses Hickman, under his chattel mortgage, 18 head of cattle, but he did not show the value of them. The exact value thereof was not shown by either party. The court instructed the jury, among other things, as follows:

“It is claimed in this case that 18 head of these cattle were turned over to the plaintiff in the ease. If you find that such was the fact, and also find that the purchase of McEl-wain was in good faith and prior to the filing of the second mortgage, then I instruct you that it is the duty of the plain*94tiff to show by a preponderance of the testimony the value of the 18 head turned over to him in this case; and if you find that the value exceeds the amount due on the $417 note, then I instruct you that your verdict must be in favor of the defendant.”

If the plaintiff took possession of any part of the mortgaged property, but did not advertise and sell the same, according to the statute, he is responsible for the actual cash value of the cattle at the time and place of taking possession. If such value equaled or exceeded the debt, that satisfied the same, and no further seizure under the chattel mortgage could be had. (Denny v. Faulkner, 22 Kas. 89.) The burden was not upon the plaintiff to show the value of the cattle turned over to him, but the defendant might have shown the value, and if the amount thereof equaled or exceeded the mortgage debt, the defendant ought to have recovered. The instruction was erroneous and prejudicial, in placing the burden of proof of the value of the 18 head of cattle upon the plaintiff, when this was a matter of defense and 'ought to have been established by the defendant. Where the defense is the payment or satisfaction of a note or mortgage sued on, by money, or otherwise, such defense is to be proved by the party making the same.

The judgment of the district court will be reversed, and1 the cause remanded for further proceedings.