Since usury constitutes a defect in title under section 59 of the Negotiable Instruments Law, which defect apparently will be purged under the Tennessee law if the note gets into the hands of a holder in due course, there arises some questions as to the burden of proof in connection with establishing whether the holder is a holder in due course--Braswell v. Tindall is somewhat unusual in that the maker of the note is seeking by his affirmative action, as plaintiff, to dislodge the defendant-holder from his position as a holder in due course so that the defect in title will not be cut off. This, of course, is a necessary step which plaintiff must take in order to recover the usurious interest paid and in order to enjoin the collection of the usurious residue of the interest. Generally, of course, such defects of title are interposed by way of defense by the injured party when he is sued on the instrument by the holder. In order to free an instrument of a defective title, section 59 of the Negotiable Instruments Law simply provides that when it is shown that the title is defective the burden is on the holder to prove that he or some person under whom he claims acquired the title as a holder in due course.
Paul J. Hartman,
Bills and Notes -- 1957 Tennessee Survey,
10 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol10/iss5/8