Epitomized Opinion

This was an action to determine the priority of mortgages. Aston and wife sold certain premises to Emanuel Weiss. On the day that the deed was delivered, Weiss paid to the Astons $6,000 and executed and delivered to them a mortgage on the property for $9,000. On the same day, Weiss executed and delivered to the Home Savings & Loan Co. of Galion, Ohio, a mortgage on the same premises for .$6,500. Neither of these mortgages refered to the other, and in both mortgages the grantcr warranted the premises to be free and clear- of incum-brances. The deed and mortgages were all filed for record on the same day. The deed was filed for record at 10:19 a. m., the Aston mortgage at 10:25, and the mortgage to the loan company was filed at 11:04 a. m. As the Common Pleas Court of Summit county held that the Aston mortgage took priority, the loan company appealed. In sustaining the lower court, the Court of Appeals held:

' 1. Where the record shows the priorities of mortgages, the burden of proof is upon the one asserting a different priority to prove it, and where the evidence leaves the point doubtful, the priorities will be adjudged according to the record.

2. As the loan company did not sustain the burden of proof, the priorities must be adjudged according to th“ record.