VIELE '11. VAN STEENBERG.
that he did not examine the tickets, but it nowhere appears that the carrier's agent resorted to any artifice to prevent him from so doing. What occurred in the case of the purchase of· these tickets is probably the same that occurs in nearly every instance of the purchase of tickets for a long railroad journey, involving a passage over several connecting railroads. Now, conceding that the acceptance of a through fare by the initial carrier is some evidence of an undertaking on its part to become responsible beyond the terminus of its own line, though by no means conclusive evidence on that point, and conceding, further, that the written and printed contract attached to the coupon tickets is not to be taken as the sole evidence of the agreement, inasmuch as claimant did not read the contract or have his attention expressly called to the same, still the evidence is insufficient to prove such special agreement as the claimant relies upon to extend the initial carrier's common-law liability, and make it responsible for losses beyond the terminus of its own line. Although the written and printed stipulations on the face of the tickets are not to, be regarded as the sole evidence of the contract, yet such stipulations may be considered, in connection with what transpired when the tickets were purchased, for the purpose, at least, of determining what were the carrier's intentions at the time, and what liability it intended to assume. Referring to the contract attached to the tickets solely for that purpose, and reading the same in the light of all that was said anq done on that occasion,and it is manifest that the carrier did not intend to assume any liability beyond its own line, and never gave its assent to an agreement for sate carriage over the entire route. rrhere was no meeting of minds on that proposition, and for that reason no express agreement to that effect. In the absence of such an undertaking, assented to by both parties, (the carrier and the passenger,) the former is only subject to its common-law obligation to safely carryover its own . line, and safely deliver to the connecting carrier. The master's report is accordingly confirmed.
VIELE V. VAN STEENBERG.
«(Jircuit Oourt, No D. IOUJa,
May Term, 1887.)
A conveyance by a county of swamp lands in violation of the act of Legislature of Iowa of January. 1855. prohihiting the sale or rlisposal of SIKh lands until the title thereto is perfected in the state. is void.
Where the conveyance by a county of certain lands is expressly forbidden by l)Ct of the legislature, purchasers are bound to know that the county cannot convey. B. received a conveyance. of certain swamp lands from a county violating said act; and by mesne conveyances the title vested in one S. The conveyance
o. DEEDS-QPERATION-AFTER-ACQUIRED TITLE-PUBLIC LANDs-TAXATION.
FEDERAL 'REPORTER. ,
by the county to B. was set aside in a suit brought for that purpose. Subsequent]y thereto the county became empowered to grant a valid deed of the lands. and a new deed was given by the county to B. The latter again conveyed the premises, and by mesne conveyances they became vested in the complain. , ant. In a suit by him, under Code Iowa, § 893, to redeem the lands from a tax sale and deed given by the treasurer, held that. as the original conveyance by the county was void, the grantees thereunder obtained no title by reason of sec· tion 1931, Code, providing that "when a deed purports to convey a greater interest than the grantor Was at that time possessed of, any after-acquired in· terest of such grantor, to the extent of that which the deed purports to con· vey, inures to the benefit of the that the proper title was in com· plainant to allow him to bring the suit under section 897 of the Code, provid· ing that no person shall be permitted to:que$tion the title acquired by a treas· urer's deed without first showing ,that 4e or 4is grantor haq title at the time of the sale, etc. ' ,
Where a conveyance of land is made' to one who knows that his grantor has no title, a court of equity, in the absence of evidence of good faith, or that said p;rantee claimed any interestin ,the lands, is not bound to hold that the acquisition of a' guod tlt]e by the grantor, long after the date of the deed, shall at once inure to the benefit of said grantee. ,
Where, in a suit relating to thethle. of lands, a decree Is sought to bind the parties, not through jurisdiction of the land, and a sale thereof, but by en. Joining defendant from assertinga'rlght. ortit]e to the land, the suit is a personalone; and if defendant was served ,onlv by publication. and made default. the right of himself or his successors In title to appear and be heard in a suit to redeem the lands froin a tax sale hi not barred. 6. SAME-NoTTCE OF OF PUBLICATION. The requirement of Code Iowa. § Sw" providing that in the case of non·residentR the notice of the time for the expiration of the period of redemption to be given by the holders of certificates of tax sales may be made by pUblian atlldavit cation, that service of such notice shall be deemed complete of such service, and of the mode theJ;'eof" verified by the holder of the certificate of Bale, hiB agent 0'1' atto'l'ney, is filedwiih the treasurer. is not satisfied by the mere filing with said treasurer of the atlldavitof publication by the publisher of a newspaper. 7. SAME-FILING NEW AFFIDAVIT. Nor is the failure to fi]e such atlldavit cured, as against one suing to reo deem, by filing an affidavit in due form, and obtaining a second treasurer's deed, the suit for redemption having been commenced, before such or deed given, and after a formal tender b;r complainant, within the time limIted by the statute for the bringing such SUitS.
In Equity. Bill to redeem land from tax sale and deed. J. W. Cory, for complainant. J. H. Swan and W. H. Bauy, for defendant.
SHIRAS, J. In this cause the complainant seeks to redeem certain realty situated in Dickinson county, Iowa, from a tax sale made October 2, 1876, for the delinquent taxes of 1875, the,bill herein being filed under section 893 of the Code of Iowa. By section' 897 of the Code it is provided that "no person shall be permitted to question the title acquired by a treasurer's deed without first showing that he, or the person under whom he claims,title, had title to the property at the time of the sale, or that the title was obtained from the United States or this state after the sale. " The first question .pl'esented for determination is whether complainant shows himself .entitled tQquestion the treasurer's deed to defendant under the provisions of this section. The land in controversy
V. VAN STEENBERG.
is situated in county, and forms part of the swamp land comingto that county under the act of cpngress of 1850, and the state legis. lation based thereon. . The title to the land under, the swamp-land act was perfected in the. state of Iowa in 1874. Dickinson county was or. ganized in August, 1857. By the act of the legislature passed January 25, 1855, it was enacted. "that no swamp or overflowed lands granted to the state, and situated in the present unorganized counties, shall be, sold or disposed of till the title to said lands shall be .perfected in the state, title to said be transferred to the said counties where they are situated." In 1861 the county,deeded the land to Henry Barkmab, but, under, the provisions pf the act just cited, the county had no power to sell the land, and its attempted conveyance was void. In November, 1861, Barkman executed It deed of the premises, with covenants of warranty, to one Henry Brewster, and he and his grantees executed like conveyances; the last thet:eof being to William B.Sigley, in 1862. After the completion of the title in the state in 1874, a patent was issued to the county, and thereupon the county, by warranty deed, conveyed the premises to Henry Barkman on the twenty-first day of Nl)vember, 1874; and on August 6, 1875, Barkman and wife, by warranty deed, conveyed the land to A. B. Lambertson, by whom it was conveyed to L. E. Nichols, and by said Nichols. to complainant, on the fourteenth day of May, 1883. August 29, 1885, the complainant procured a quitclaim from William B. Sigley of the lands in dispute, but this deed was not taken until after the commencement of this suit, and defendant claims that it cannot be considered in determining the case, because it was the suit was brought. Defendant's position is that when the county, in 1874, conveyed the land to Barkman, such title inured to his grantees the deed executed in 1861, under the provisions ofsection 1931 oOhe CodeofIowa, which enacts that, "when a deed purports to convey a greater interest than the grantor was at that time ppssessed of, any after-acquired interest of such grantor, to the extent of that which the deed purports. to convey, inures to the benefit of the grantee." . In Rice v. Nelson, 27 Iowa, 148, it is held that "any right which, in law or equity, amounts to ownership in the land, any right ofentry upon it, to its pOi3session, or the enjoyment of any part of it which can be deemed an estate, makes an owner ,of it, so far as it is necessary to give the right to redeem;" and in ,Foster v.Bowman, 55 Iowa, 237, 7 N. W. Rep. 513, it is said: "The statutes providing for redemption from tax sales should be liberally construed." In the case at bar it is shown that in 1874 the title to the lands in controversy was perfected in the state of Iowa, and in Dickinson county, which then for the first time became clothed with the right and power to sell tbe same; that in November, 1874, the county conveyed theland to Barkman, and in 1875 he conveyed same to Lambertson, who in time conveyed to Nichols, the immediate grantor of complainant. Thus we have a perfect and unbroken chain of conveyances from the state and county to complainant.
But it is nrged that title did not pass to complainant by means of these conveyances, because Barkman had in November, 1861, executed a deed of the land, with covenants of warranty, to Henry C. Brewster; and that although he had not then any title upon which this deed could operate, yet, when he subsequently acquired title from the county, in 1874, it at once inured to the benefit of Brewster and his grantees. As already stated, when the county, in1861, deeded the land to Barkman, it had no right or authority to convey the same by reason of the restrictions in the act of 1855, and Barkman and his grantees knew, or were bound to know,. that the county had no right to then sell or convey these lands. Moreover, it is shown in the record that in 1811 a suit was brought in the district court of Dickinson county, in favor of the county against Henry Barkman and others, for the purpose of canceling and setting a.side the conveyances of the swamplands previously made to defendants, and the contracts upon which the same were based, upon the grounds that the same were unauthorized, fraudulent and void; and at the October term, 1871, of said court, a decree, 'as prayed for, was entered in said cause. It is thus clearly shown that when Barkman executed his deed to Brewster, in 1861,ofthe lands in dispute, he had no title therein, and for reasonS which Brewster was bonnd to take notice of. The latter knew that the deed from the county to Barkman was wholly void, and that the'lands belonged to the county. Under such circumstances, without any proof that Brewster paid anything for the land to Barkman, does it follow that a court of equity is bound to hold that when, 13 years after, the county conveyed the lands by a good title to Barkman, the title thus acquired at once inured to Brewster? It does not appear that Brewster or his grantees ever claimed any interest in the lands, and it certainly would be going to an extreme length to hold that when Barkman, in1874,procured the title of these lauds from the county, his title at once passed to Brewster by reason of the deed executed in 1861, although the latter made no claim to the land under such deed. All that can be claimed is that perhaps, if Brewster or his grantees had asserted a right to the land, they might have sustained the same; but such possibility should not be held sufficient to overcome the evidence 6f direct title offered on behalf of complainant, and to defeat his right to redeem. Certainly complainant has a good title, unless a claim should be asserted under the conveyance to Brewster. Even if complainant had not procured the quitclaim frc;>m Sigley, there is nothing to show that any adverse claim would ever have been made by Sigley to the land; so that it cannot be held that complainant and his grantees did not have sufficient interest to entitle him to redeem. Sufficient title 1nd ownership in the land to entitle him to be heard upon the question of the right of redemption having then been shown in complainant, we are brought to the consideration of the effect of a decree rendered in the case of Van Steenberg v. Nichols and Sigley, brought to the September term, 1880, of the district court of Dickinson county, for the purpose of quieting the title of complainant in the land in question. The defendant Nichols was a non-resident of the state of Iowa, and the
VIELE 11. VAN STEENBERG.
only service of notice had witS by publication under the statute of Iowa. The action was a personal one. The decree seeks to bind the parties, not through jurisdiction of the land, and a sale thereof in any form, but by enjoining and estopping the defendants from asserting any right or title to the land. As the defendant Nichols did not appear to the action, and waS'not served with notice other than by publication, and as the decree is personal ill its character, it comes within the rule announced in Hart v. Sansom; 110 U. S. 151, 3 Sup. Ct. Rep. 586, and does 'not bar the right of Nichols or her grantees to be heard in this court, the same as though such decree had not been rendered. The sale for taxes undel' which defendant claims title was made in 1876. Section 894 of the Code of Iowa provides that, after the expiration of two years and nine months from date of sale, the holder of the certificate Of sale shall give notice of the expiration of the period of redemption; that, in case of non-residents of the county, service of suoh notice may be made by publication; that service ofstich notice shall be deemed to be complete when an affidavit of such selvice, and of the mode thereof, verified by the holder of the certificate of sale, his agent or attorney, is filed with the treasurer; and the right to redeem shall not expire until 90 days after service of such notice. As construed by the supreme court of Iowa, the 90 days allowed for redemption under tllis section of the statute does not begin to run until preiper evidence ()f service of notice is filed with the treasurer, and an affidavit of publication by the publisher of a newspaper is held net sufficient evidwce of service, as the section expressly requires the affidavit to be made by the holder of the certificate of sale, his agent or attorney. American JlfilR,ionary AS/I'n v. Smith, 59 Iowa, 704, 13 N. W. Rep. 849; Ellsworth v. Van Ort, 25 N. , . W. R e p . 1 4 2 . ' It is admitted in this case that the only proof of the service of notice to redeem, filed with the treasurer of the county in 1879, when the deed of that date was issued, was an affidavit by the publisher ofthe13eacon newspaper. The treasurer was not authorized to execute the deed, and the right to redeem was not terminated by the issuance thereof.' The petition in the present case was filed in August, 1883, before the expiration of :live years from the delivery of the deed, and before the period of 90 days had been set to running against complainant. The fact that in January, 1884, the defendant filed with t:be treasurer an affidavit in due form, showing completed service of the notice to redeem, and in April, 1884, obtained a second treasurer's deed, cannot avail him as a defense. He then knew that complainant WAA claiming the right to redeem, and had brought an action to establish such right, and stood ready to pay whatever sum was needed to perfect redemption. Before the suit was brought, the complhinant's agent and attarney had called on defendant, and offered to redeem the land,. being pr<>pared to make a formal tender; but the defendant refused to allow redemption, or to state the amount he claimed to be due, saying he would Dot allow .redemption unless the courts compelled it, etc, Complainant hll,dalso, before bringing suit, made a tender to the auditor of the county who
: FEDERALREfORTER. ,
re!usedtoreceive. the, same, and dellied that the right to redec;lIU existed. Complain$nthas deposited with .the clerk of the courts the amount tendered, 'an<lgertainly, under these ctrcumstances" it cannot be, said that ,entitled to hold the.land under the second deed, becl;l.use the same hasl.not been redeemed. ",Defendant denied complainant's right to redeem, ,anQ. compelled him to resort to a suit in equity to establish and enforooi"!uahrightj and, as a defendant to such suit, he is even now claim to the right of redemption. He.cannot now be permitted to take advantage of fa.ct that he has procured a second deed from the treasurer under the circhmstances disclosed in the evidence. The amount deposited with the clerk by complainant is,as·lunderstand the record, the sum which is sufficient to COVer the amount for taxes, penalties, etc. Decree therefore is ordered for complainant, the defendant being entitled to the money on deposit; and the total costs, both in state and federal courts, will be equally divided, each party paying one-half.
SOUTH BEND ,
WORKS v. CoTTRELL and others.. '(WARDER and others; Jntervenors.)
(Oircui' (Jom, No D. Iowa,
CoNDITIONAL SALE-MACIDNE CONTRACT-PRINCIPAL ANDAGENT-GARNISUMENT. ,:
A contract creating an agency for the sale of agricultural machines provided that all unsold machines were to be purchased by the agent at the expiration olthe contract, and that they were to remain the property of the principal until paid for according to the. terms of the agreement. Held, that such unsold machines, and the proceeds of machines sold to third pa.rties, were not subject to garnishment in the hands of a SUbagent for the individual indebtedness'of the agent. '
CONSTRUCTION 'OF CONTRACT-USAGES OF TRADE-EvIDENCE.
Said contract provided that such unsold machines were to be ,Paid for in stipulated installments, during the years 1888 and 1884, and contamed a marginal modification to the effect that the principal a§reed "to carryover all machines left unsold at the end of the season of 1883.' Held, that such modification wasstanding alone, somewhat equivocal and obscure, and that resort might be had in such instance to the well-defined and known usap;es of the trade as an aid in reaching a true interpretation of the contract.
Said contract further provided that the agent in seUingthe machines should take notes for the deferred payments upon blanks furnished by the principal containing certain provisions and stipulations. Held, that notes taken on other blanks, and of a different form, payable in Bome instances to the order of the ag-ent,did not defeat the'right of the principal to waive objection to the variance]n form, and to maintain his ownership in the notes so lOng as the rights ofinnocent purchasers for val.ue were not involved. 4. CONDITIONAL SALE-SECTION 1922; CODE IOWA-GARNISHMENT. Section1922, Code Iowa, provides that "no sale, contract, or lease, wherein the transfer·of title or ownership of personal property is made to depend upon any condition, shall be valid against any creditor or purchaser of the vendee or lessee in actual possession obtained m pursuance thereof without notice,
PRINCIPAL AND AGEN'l'-OWNERSHIP OF NOTES-WAIVER OF VARIANCE.