by a party thereto that the same may be termed an alteration and result in avoiding the note. Andrews v. Galloway, 50 Ark. 358; 2 Dan. Nego. Instru, par. 1373. We du not think, however, that the error committed in this instruction was prejudicial, for there was no contention about who made the change in the note. All the evidence is that the word 'ten' was struck out by Connors, the payee, 'eight' inserted by him. The conflict in the testimony is as to when said change was made. The evidence of plaintiff is that it was before the execution of the note and the evidence of the defendant is that it was afterwards There was no contention that the change was made by a stranger to the note. The court instructed the jury that the burden of proof was upon plaintiff to show by fair preponderance of the evidence that the note was properly executed: that it was assigned to plaintiff in due course of business; and that the transfer was made before maturity. Therein court committed error for which the cause must be reversed. Plaintiff attached to his petition a copy of the note as an exhibit, and the assignment was by written indorsement on the note of date, Sept. 4, 1907. The note by its terms did not mature until Nov. 1, 1907. Defendant's answer was unverified. In all actions based upon written instruments the execution of such instruments and indorsments thereon are admitted, unless denial of the same, verrified by affidavit of the defendant, is made in his answer. Wil. Stat. sec. 4315. The execution of the note was not an issue under the pleading. The note and the indorsements were introduced in evidence. Under the state of the evidence and pleadings, the burden was not upon plaintiff to establish the execution of the note, its assignment before maturity, for its execution and that of the indorsement on the note, not having been denied under the pleadings, admitted; and the indorsement established the assignment of the note before maturity. It was also immaterial whether the note was transferred before or after maturity. The sole question in this case is: Was, the change which had been made in this note, made after execution thereof by defendant? If so, plaintiff cannot recover; otherwise, it can. The judgment of the trial court is reversed and the cause remanded. Dunn, C. J., Williams, Kane and Turner, JJ., concur. J. E. MCCARTY, et al., Plaintiffs in Error, VS. J. H. CAIN, et al. Defendants in Error. No. 1483 Affirmed. 1. A majority of the qualified electors of a school district not having a school house, may designate a site for the same at an election called for that purpose. 2. Where a special election is assailed on the ground of lack of compliance with all of the statutory requirements in reference to notice, but there is no averment or showing that the electors did not have actual knowledge or notice of the election and failed to participate therein by reason thereof, the same will not be held void on this account. (Syllabus by the Court.) H. A. Ledbetter & Stuart & Bell, Attorneys for the plaintiffs in error. Potterf & Walker, Attorneys for Defendants in error. OPINION OF THE COURT, by DUNN, C. J. This case presents error from the district court of Carter County. March 8th, 1909, plaintiffs in error as plaintiffs filed their petition in which they averred that they were citizens, property holders, and tax payers of Lone Grove School District No. 32, of Carter county; that defendants were the trustees of said district; that the said district owns a school house worth at least $700 situated within one-half mile of the center and that the same was being used as the school house for that district. That the property owned by said district within the said house was worth $400.00; that the defendants without having obtained the requisite number of qualified voters in the said district are threatening to move the location of said school and are threatening to buy a site upon which to to locate said school which will cost $300.00 and to erect a building thereon to cost about $8,000.00, and are threatening to draw a warrant for $300.00 to pay for said site. That this action on their part is illegal and without authority of law, and if permitted will make a charge against the property of these plaintiffs. That the defendants are about to take a deed to the said lots and have ordered a warrant to pay for the same against said school district, and unless prevented the same will be consummated, and pray that an injunction issue restraining defendants from purchasing the lot and from removing said school site or taking any action in reference to the same. On this petition a temporary restraining order was granted. The defendants filed answer in which they denied that the school district owned a school house and averred that they were acting in accordance with the decision of an election duly held by the qualified voters of the district providing for the purchase of and the location of a school house site and building. That in pursuance of said election the defendants had purchased the site selected and had taken a deed therefor from the owner which had been duly filed for record in the office of the register of deeds. Defendants further plead that the district had voted bonds in the sum of $8,000.00 for the purpose of providing school house facilities for the district. On a trial of the issues thus made the court, on the 13th of March, 1909, denied the prayer of plaintiffs' petition and vacated, set aside, and dissolved the temporary injunc tion. It is to review this action that the case has been brought to this court by proceedings in error. From the record it appears that some time prior to the erection of Oklahoma into a State a number of citi zens residing in the neighborhood of and within the territory of this school district joined together and by popular subscription erected a building to be used by the people generally for school purposes, for the holding of church, and for the Masonic Lodge. After statehood and on the organization of the school district this building was continued to be used as it had been, but the title to it nor its site was not in the district. After the organization of the district and on February 18th, 1909, notices were posted calling for a special meeting of the electors for the purpose of voting for a school site. The election thus called was duly held. The record shows that there are about two hundred and fifteen electors residing in the district; that one hundred and seventy-eight votes were cast, of which one hundred and four were in favor of purchasing the site involved and seventy-four against it. Counsel for plaintiffs rely upon the provisions of sec. 8058, Compiled Laws of Oklahoma, 1909, which provides: 66 'In school districts having school houses the value of which is not less than five hundred dollars, the school house site shall not be changed except by a vote of at least three-fifths of the legal voters of such district in favor of such change." As noted above, three-fifths of the legal voters of the district, computing their number at two hundred and fifteen, did not vote in favor of the change, and the question presented is, what is the meaning of the phrase "in school districts having school houses?" If the character of the tenure held by this school district in the use of this building will meet the requirements of the statute, then it will be seen that the site was not changed or affected by the vote cast. The other section relating to the same subject, sec. 8056, provides that the inhabitants qualified to vote at a school meeting "shall have power to designate by vote a site for the district school house." If the school district had no school house, then a site could be selected under this section by a bare majority of the qualified electors, and it is on this theory that the defendants are proceeding. Stayton vs. Butchee et al., 16 Okla, 232. Under the section last quoted in the first instance a majority of the qualified electors of a district have power to select a school house site, and sec. 8058, it appears to us, contemplates that after the school site has once been selected by the voters of a district and a school house erected thereon it thereafter can not be changed except by the increased vote provided for therein. In any event it is essential that the district have some tangible substantial title in a school house before sec. 8058 would apply in an election to change. So that in this instance a majority of the qualified electors of the district, not owning the school site nor having a school house, were vested with authority to locate it. Counsel for plaintiffs in their brief seek to make the point that there was lack of compliance with all of the statutory requirements in the giving of the notice of the special election, but as there is no averment to support the same in their petition and no showing made in the evidence that the electors did not all have actual notice or knowledge of the election and failed to participate therein by reason thereof the same can not be avoided on this ground Town of Grove vs. Haskell et al., 104 Pac. (Okla.) 56. Finding no error in the judgment of the trial court, the same is accordingly affirmed. Kane and Hayes, JJ., concur; Williams, J., concurs in conclusion; Turner, J., absent. MERIDIAN OIL COMPANY, Plaintiff in Error, VS. No. 523 T. F. RANDOLPH, Trustee, Etc., Defendant in Error. (Rendered Sept. 13, 1910.) Error from the District Court of Okmulgee County. John Carruthers, Judge. Affirmed. Where in an action to foreclose a mortgage on certain land after condition broken, the mortgage provides: "It is further agreed that the" mortgagor "shall deliver to the" mortgagee "50 per cent of the oil produced by it, that is, the" mortgagor, "in tanks on the land herein described and reserved by the" mortgagor "or the proceeds of said 50 per cent, at the option of the" mortgagor, and the same "or its proceeds shall be applied by the" mortgagee "as a credit on" the mortgage note: Held, That in addition to the mortgage lien on said land an equitable lien was thus reserved on 50 per cent of the oil so produced or its proceeds as security for the mortgage debt. And where, on an application to appoint |