1-3. This is an equitable proceeding, which, under the statute, is tried de novo here, and in the Circuit Court upon the record made in the County Court. The execution of the note being admitted, the only question presented is one of payment, and the burden of proof is upon the heirs of the deceased. The testimony is conclusive that soon after its execution the note was assigned by Apple as collateral to the Northwestern National Bank, where it remained until the 6th of January, 1916, during which time the three interest payments were made by C. M. Hollopeter. On that date the bank delivered the note to Apple, who has had actual possession of it ever since. Attorney Bannon testified that Apple exhibited the note to him at the time he prepared his petition to be appointed administrator of the estate of Eunice E. Hollopeter, which was soon after her death in August, 1916. That would entitle him to the statutory presumption under Section 799, Or. L., “that things in the possession of a person are owned by him, ’ ’ that is to say, the law presumes that Apple was then the owner and holder of the note. After hearing the testimony in open court, the county judge found that the claim should be allowed. He saw and heard the witnesses testify, and in.this kind of a case his finding is entitled to some weight. The Circuit Court found, as a fact, that “after the death of C. M. Hollopeter, said note was not paid by Eunice E. Hollopeter, deceased,” and there is no evidence that she ever paid the note, or ever claimed to have paid it. If the note was ever paid, it was paid by C. M. Hollopeter. The testimony is conclusive that soon after the execution of the note it was assigned, as collateral, to the bank, where it remained until *283January 6, 1916. It appears that Dr. Hollopeter died December 30, 1915. Claudia A., the daughter-in-law of Dr. and Eunice E. Hollopeter, testified:

“Q. Do you not know that for mere than a year prior to his death, Dr. Hollopeter received no money from any source; that he was not able to pay his taxes or his interest, and that he was absolutely without funds of any kind?

“A.. Yes. He was sick, and his'sons took care of him. He had lost all through his trades.”

The daughter, Mrs. Cadle, testified that he had softening of the brain and was in bed eight months prior to his death; that for the previous three or four months he was suffering from a stroke of paralysis.

“Q. What was the condition of your father’s health for the year or two years prior to his death?

“A. Well, I would say for three years before papa’s death he was not himself at all. He died from softening of the brain, and had been taken away from his work about three years before, I would say. He was not capable of attending to his business at all.

“Q. He was not doing any business during the entire year of 1915?

“A. No, sir.

“Q. Did he make any payments on this note during the year of 1915?

“A. No, I know nothing about it.

“Q. If any payments were made on the note it must have been made before that?

“A. Yes; he couldn’t have made any during that time. ’ ’

It is true that there is testimony of the daughter and the nurse, tending to show that the mother had said the note was paid; but there is no evidence that she ever claimed to have paid it, or as to when, how, or by whom it was paid. After the doctor’s sickness the Hollopeters were in straightened circumstances, *284and never had the money to pay the note, and the only assets of either of them were the $2,000, life insurance, which was collected by the widow after his death. The bank records show that both of them. were notified at the maturity of the note on February 11, 1915, and that it was then protested for nonpayment. There is no evidence of any claim that the note was then paid, or of any protest or objection by either of the Hollopeters, to the receipt of that notice. Dr. Hollopeter knew that the note was in the bank. It was there he. made his interest payments, and the testimony is conclusive that the note remained in the bank until some time after his death.

When analyzed, the evidence of the payment of the note is founded upon inference and suspicions, largely growing out of the actions and conduct of Apple and the manner in which he testified, all of which, standing alone, might be construed as sufficient evidence of payment. But the stubborn fact remains that soon after its execution the note was deposited in the bank as collateral, where it remained until the 6th of January, 1916; that C. M. Hollopeter died in December, 1915; that he made the three interest payments to the bank, which are credited uponx the note; that its records show, and its officers testify, that he never made any other payment to the bank, and that at its maturity, on February 11, 1915, the note was duly protested for nonpayment. If either of the Hollopeters had paid the note to the bank prior to January 6, 1916, they would then have been entitled to its possession, and in the ordinary course of business the. bank would have delivered it to them. The Hollopeters knew that the bank held the note as collateral. During that period, any payment should have been made to the bank. Having such knowledge, the tes*285timony as to the payment direct to Apple should he clear and convincing. There is no evidence that anyone ever claimed to have paid the note to him, or as to when it was paid, or how it was paid. The decree of the Circuit Court will he reversed, and one entered here against the estate of Eunice E. Hollopeter in favor of Apple, for the full amount of his note, with accrued interest, without costs to either party in this court, or the County or the Circuit Court.

Reversed. Decree Rendered.