Volume 128 — Iowa Reports

<p>Appeal from Dubuque District Court.— Hon. Bred O’Donnell, Judge.</p> <p>The opinion states the ease.— Modified.</p>

O. W. Vermillion, Judge. The plaintiff executed two leases of land to McDonald for fanning and tbe mining of coal for a term of three years beginning October 1, 1901, and on the 5th of March, 1902, the latter assigned his interest therein to the defendants. This action was begun in February, 1903, and raises the issues discussed in the opinion.

— Hon. James D. Gamble, Judge. The plaintiffs were trustees of the Guthrie County High School, and brought this .suit to recover for the tuition of pupils attending said school who resided in the defendant district. A demurrer to the petition was sustained, and the plaintiffs appeal.—

<p>Trusts: termination: burden of proof: evidence. Where one 1 purchases bank stock with funds of another taking title in his own name, he will be presumed to remain in possession of the same as a trustee, in the absence of evidence to the contrary; and the burden is on the trustee to show a determination of the trust. Evidence held insufficient to show that the trustee became the real owner of the stock. ■</p> <p>Trusts: statute of frauds. A resulting trust may'arise from the 2 investment by one of the funds of another in bank stock without the knowledge of the beneficiary, but where an investment is so made and title taken in the name of the trustee pursuant to an arrangement of the parties, an express trust is created which is not within the statute of frauds.</p> <p>Estoppel. The fact that one holding bank stock in trust became 3 a director in the bank on the strength thereof, did not estop the beneficiary to deny that the 'trustee was the real owner.</p> <p>Jurisdiction. A state court has jurisdiction to determine the own-4 ership of national bank stock as between individual claimants and where the bank is not a necessary party.</p>

<p>Appeal from lorn District Court. — Hon. O. A. Byington, Judge.</p> <p>Indictment for perjury. Trial to a jury. Verdict and judgment of guilty, and defendant appeals.—</p>

— Hon. J. E. Whitaker, Judge. Action at law to recover damages on account of personal injury. Verdict and judgment for defendant, and plaintiff appeals. — ■

<p>Mortgages: agency: evidence. After the execution of a note and 1 mortgage, the mortgagee refused to make the loan and assigned the papers, without consideration, to the agent of mortgagors who negotiated the loan. Such, agent used the same as collateral security for another loan from other parties who, are seeking in this action to enforce payment by foreclosure of the mortgage. On an issue as to the agent’s authority, to , make the latter loan the evidence is reviewed and held insufficient to show authority.</p> <p>Mortgages: bona fide purchaser: evidence. Where it appears 2 that the holder of a mortgage acquired title thereto without consideration and by fraud, his assignee in an action to enforce the same has the burden of showing that he acquired it in good faith, for value and without notice of his assignor’s defective title. Evidence held insufficient to show that the assignee acquired the mortgage in due course.</p>

<p>Appeal from Lyon District Court.— Hon. Geo. W. Wake-field, Judge.</p> <p>The defendant was convicted of seduction, and appeals.—</p>

— Hon. C. A. Bishop, Judge. Suit in equity asking that certain ordinances of the defendant city be declared void, and that the defendant railway company be enjoined from acting thereunder. A demurrer to the petition was sustained, and the plaintiffs appeal.—

— Hon. Z. A. Church, Judge. Action at law upon a bond given by the defendant Seidensticker for the faithful performance of his duties as cashier of the plaintiff bank. Judgment for plaintiff upon a directed verdict, and the defendant surety appeals. Since the appeal was taken, the surety F. C. Knepper has deceased, and his representatives have been substituted as appellants. — ■

<p>Objection to submission, of cause. Where a cause has been submitted to the jury on the issues presented by the pleadings and on the theory on which it was tried, it is too late to contend for the first time on appeal that it should have been submitted on a different theory.</p>

<p>Appeal from Polk District Court.— Hon. James A. Howe, Judge.</p> <p>Action to restrain the enforcement of a judgment. Decree for plaintiff, and defendant C. F. France appeals.</p>

<p>Election of remedies. To constitute an election of remedies there 1 must be two or more concurrent, inconsistent remedies, one of which the party, by bringing his action, or some other decisive act, has chosen after a full knowledge of all the facts. Under this rule an unsuccessful action to recover the price paid for property on the theory of a rescission of the purchase, will not preclude another action for breach of warranty, the former action being a mistake as to remedy.</p> <p>•Verdict. A verdict which has support, though the evidence' is ' 2 conflicting, will not be disturbed on appeal.</p>

— Hon. W. D. Evans, Judge. ■Action to enjoin and cancel a judgment entered on ■a transcript of a justice of the peace. Decree as prayed. The defendant appeals.—

— Hon. Edmund Nioi-iols, Judge. Proceedings to revoke the license of L. L, Mosher as an attorney-at-law. ■ Eour of • the nine specifications com tained in the accusation were held to be sustained, and judgment of revocation entered. He appeals.

<p>Appeal from Hamilton District Court.— Hon. J. H. Whit-taker, Judge.</p> <p>Petition in probate by plaintiff, as administrator of Priscilla Emerson, deceased, to sell certain real estate for tbe purpose of paying claims against her estate. Tbe defendants, claiming adversely to tbe title alleged to be in Priscilla Emerson, resisted tbe application. The case was tried by .consent as in equity, and decree was rendered ordering tbe sale of tbe property, from which defendants appeal.—</p>

— TIon. W. H. McHenry, Judge. Prosecution for the violation of an ordinance. The trial court held the ordinance unconstitutional, and discharged the defendant. The city appeals.

— Hon. Hobert Sloan, Judge. The defendant was indicted for the crime of murder. Tbe jury found him guilty of manslaughter, and from the ' judgment entered on the verdict he appeals.—

<p>Husband and wife: separation contract: release of interest in husband’s property. Code section 3154 providing that neither the husband nor wife has such an interest in the property of the other that it can be the subject of contract between them, is in' effect a statute of descent and distribution, and an agreement of the wife upon separation to release, for a consideration paid, all interest in her husband’s property, is void, and will not preclude her from claiming her distributive share of his estate although the agreement may be valid in the jurisdiction where made and where the wife resided after separation.</p>

<p>Appeal from Buena Yista District Court.— Hon. W. B. Quarton, Judge.</p> <p>Action for the conversion, of certain personal property. Defendant is the sheriff of Buena Vista county, who sold the property in' question under an execution issued on a judgment against one Ellis, who originally owned the property. Plaintiff Ward, as cashier, bases his right of recovery upon a chattel mortgage on the property made to him as such cashier by Ellis, the then owner. Defendant pleaded that plaintiff’s mortgage was and is fraudulent both in law and in fact, and that plaintiff is estopped from relying thereon. On these issues- the case was transferred to the equity docket, and tried to the court, resulting in a judgment for the plaintiff, and defendant appeals.—</p>

— Hon. Edmund Nichols, Judge. Action in equity to rescind a contract for the purchase of certain real estate, and to recover back moneys paid on account of such contract. From a decree in favor of defendants, plaintiff appeals.—

— Hons. Z. A. Church! and S. M. Exwood, Judges. • • Ad quod damnum proceedings, originally instituted by tbe defendant to condemn certain land belonging to plaintiff Simons for railway purposes. Werthman was made a party because he held a lease for tbe land. Tbe sheriff’s jury did not allow Werthman anything, and be appealed to the district court. Hpon a trial in that court be was awarded a verdict of $24. He immediately moved for a new trial, and bis motion was sustained.

<p>Eminent Domain: appeal: parties. Where the notice of con-1 demnation proceedings was addressed to and served upon the land owner and wife, and also his tenant, and the sheriff’s jury was advised of their respective interests and made an award’ to the owner alone, ignoring the-tenant, a joint appeal by the owner and tenant was not necessary, .nor was either required to serve notice of appeal on the other.</p> <p>Consolidation of Appeals. The interests of an owner and tenant 2 in a condemnation proceeding are not joint but several, and the overruling of a motion to consolidate their appeals upon a refusal of defendant to agree to separate verdicts was not erroneous.</p> <p>Dismissal of Appeal. In a condemnation proceeding the service of 3 a notice of appeal on the adverse party and the sheriff confers jurisdiction on the court, and when the appeal has been properly docketed the appellee cannot have it dismissed or the award of the jury affirmed, on the ground that the transcript of proceedings before the sheriff’s jury was not filed in the case until it was reached for trial.</p> <p>Docketing Appeal: filing transcript: waiver. Where the court & obtains jurisdiction by service of the notice of appeal in a condemnation proceeding, a general appearance of the parties and agreements as to the disposition of the case which are made a matter of record will amount to a waiver of strict compliance with the statutes relating to docketing and filing a transcript, and the court’s discretion, under such circumstances, to dismiss and affirm, will not be interfered with.</p> <p>Pleadings: striking from files. Where appellee’s motion on ap5 peal, to dismiss and affirm for failure to file a transcript and pay the fee was correctly overruled, it was not prejudicial to strike from the files its answer raising the same question.</p> <p>Misconduct of Counsel: -opening statement. Without approving 6 the practice it is held under the circumstances that no prejudice resulted from the fact that plaintiff’s counsel told the trial jury, when first called for examination on voir dire, the amount of the award by the sheriff’s jury.</p> <p>Examination of Jury. A wide latitude is allowed in the. examina7 tion of jurors for the purpose of enabling litigants to intelligently exercise peremptory challenges, and unless there is want of good faith on the part of counsel or an abuse of the court’s discretion the appellate court will not interfere.</p> <p>Damages for Right of Way: evidence. In estimating the damage 8 to a farm by an appropriation of a portion for right of way purposes, evidence of the amount paid to others per acre for right of way where'the tracts were not similarly situated and the consequential damage was not the same,'is inadmissible.</p> <p>‘Same. Inconvenience resulting from the construction of an ele9 vated crossing is not an element of damage in a condemnation proceeding, and error in the admission of evidence relating thereto is not cured by an instruction that the same should not be considered w;here the instruction did not cover all the evidence on the subject.</p> <p>Damages: instruction. An instruction that the jury in a con-10 demnation proceeding should consider every element of annoyance and disadvantage resulting from a construction of the road, which would influence a purchaser in estimating the market value of the property, was erroneous, because it fixed no certain rule for ascertaining the market value, but left the matter open to conjecture.</p> <p>Instruction: evidence. It is error for the court in its instruc11 tions to single out a class of witnesses and give the jury an opportunity to magnify the importance of their testimony by reason of the fact that they were engaged in a particular occupation.</p>

<p>Appeal from Fremont District Court.— Hon. W. E. Green, Judge.</p>

— Hon. Z. A. Church, Judge. On the 23d day of October,-1900, Peter McCormick’s undivided one-fifth interest in a tract of land, of which his mother died seised, was sold to satisfy a judgment which the plaintiff' had obtained against him in 1889, and a certificate of sale issued accordingly.

— Hon. Obed Caswell, Judge. Action for damages for a personal injury..- In tbe main tbe facts are not involved in controversy. At tbe time of bis accident and injury plaintiff was in tbe employ of defendant as a freight brakeman. Tbe accident occurred in tbe yards of tbe defendant at Muscatine, and while tbe train crew to which plaintiff belonged was engaged.in switching to make up a train destined for Cedar Bapids.

<p>Marriage contract: evidence. The evidence in an action to con-1 strue a will is reviewed and held insufficient to establish a marriage,contract under the law of Nebraska defining marriage.</p> <p>Recognition of illegitimate child: evidence. On the question of 3 whether a putative father recognized his illegitimate child, the evidence is reviewed and held insufficient to establish recognition.</p> <p>Wills: construction oe “lawful issue.” The term “ lawful issue ” 3 as used in a will should be construed according to the intention of the testator as gathered from the language of the will and such extrinsic facts as may properly be considered, and while generally it may mean “ heirs of the body or lineal descendants ” it may be used in a restricted sense. In construing the will in question “ lawful issue ” is held to be synonymous with “ child ” and to apply only to such as are born in lawful wedlock.</p> <p>Bastards: effect of recognition: lawful issue. Code section 4 3385 which provides that an illegitimate child which has been recognized in writing by the father as his child shall inherit from him, is a statute of descent only and does not legitimate, the child so that he may take under a will giving property to his father and his “lawful issue,” which is construed to mean lawful children.</p>

— IIon. S. M. Elwood, Judge. Action on promissory notes signed by defendant D. Pi. Park, with E. C.'Park as surety.

<p>Kidnapping Defined: corpus delicti. Actual detention of a person 1 though for a short time, with the purpose and intent of extorting money as the price of liberation, .is a violation of the statute against kidnapping, regardless of how such person came to be in the place where detained.</p> <p>Identity of Defendant: evidence. On a prosecution for kidnap-3 ping for a ransom, the evidence is reviewed and held sufficient to identify the defendant as the perpetrator of the crime.</p> <p>New trial: newly discovered evidence. Newly discovered evidence 3 of an impeaching character and on a collateral issue is not ground for a new trial.</p>

— '■Hon. Obed Caswell, Judge. Suit to recover double damages for killing plaintiffs horse. Trial to a jury, and verdict and judgment for the plaintiff The defendant appeals.—

<p>Libel per se: falsity: malice: damage. A charge of crime is 1 not essential to render a publication libelous per se; nor is .plaintiff required to prove its falsity, or malice in its publication; neither need he prove damages.</p> <p>Libel per se: justification. A publication charging one with be 2 ing notoriously untruthful and unworthy of belief is libelous per se, and cannot be justified by a plea that the publisher did no more than express his personal belief.</p> <p>Plea of privileged publication: questions of fact. The plea that 3 a publication was privileged is in the nature of an admission and must be as broad as the charge of’ lib.el. It cannot be based on the admission of another and different publication which is privileged; and where such plea is properly entered the questions of malice and whether the privilege was exceeded are for the jury.</p> <p>Taxation of costs. The overruling of a motion to tax the costs to é plaintiff on the ground that defendants were sued in the wrong county, where one of them was in fact a resident of the county of trial, was not erroneous; and even if the motion had been proper defendants would only be entitled to recover that portion-of the costs incurred by reason of the fact that the suit was brought in the wrong forum.</p>

<p>Railroads: negligence of co-employe: liability statute. A car 1 repairer, injured by a moving engine at a time when actually employed at his work in the yards and upon the tracks of the company, is as a matter of law within the provisions of Code section 8071, relating to the liability of the company for the negligence of a co-employé; and where there is no dispute in the evidence as to the character of the employment, and but one-conclusion can be drawn therefrom by reasonable minds, the court may properly instruct as to whether or not the case comes within the statute.</p> <p>Negligence: instruction. In view of the- evidence an instruction 8 that if after the engineer knew or had reason to know that plaintiff was in a place of danger, he started the engine without signal, the company was guilty of negligence, was not erroneous.</p> <p>Contributory negligence. The evidence in an action for injuries to 3 one employed in repairing cars is reviewed and held to justify a submission of the question of plaintiff’s negligence.</p>

— Hon. W. G. Thompson, Judge. Action to recover the purchase price of certain horses. Defendant denied that he purchased the animals, and pleaded that they were sent him for sale on commission. He also pleaded other - matters, which, so far as material, will be referred to in the body of the opinion. The case was tried to a jury, resulting in a verdict and judgment for the plaintiff, and defendant appeals.—

<p>Appeal from Linn District CourtHon. Wm. G. Thompson, Judge.</p> <p>Action in equity to'foreclose mortgage. Cross-petition by defendant Wilson to quiet title in him under a tax deed. Decree for plaintiff, and Wilson appeals.—</p>

<p>Appeal from Lirm Districit Court.— Hon. Wm. G. Thompson, Judge.</p> <p>Judgment foi* damages, from which defendant appeals.</p>

— ¡Son. Wm. G. Thompson, Judge. Action for damages on account of change of grade in street abutting upon lots owned by the plaintiff. Verdict and judgment for plaintiff, and defendant appeals.—

— Hon. J. H. Preston, Judge. The petition alleged 'that the defendant, as treasurer of Linn county, caused notice to be served on plaintiff to the effect that a report had been made to him indicating that moneys, loans, and credits belonging to it had been omitted from assessment, amounting to $24,000 in 1899, to $2,800 in 1900, to $44,300 in 1901, and to $29,848 in 1902; and that, unless it appeared before him on the 22d day of January, 1904, at 10 o’clock a. m., and show…

<p>Bills and notes: settlement: evidence. The evidence in a suit 1 on notes due an estate to which defendant pleaded a settlement is reviewed and held to support a verdict for plaintiff.</p> <p>Appeal: review of question not raised below. Where there was 2 no ruling of the trial court with respect to the right of certain attorneys to take part in the trial of a cause, an objection thereto will not be reviewed on appeal.</p> <p>Argument: misstatement of counsel. In an action by an executor 3 on notes belonging to the estate against which defendant interposed a claim for services, an objection to a statement of plaintiff’s counsel that defendant could otherwise enforce his claim by filing the same against the estate, is held to have been without prejudice although the ordinary statutory time for filing claims had expired.</p>

— Hon. B. H. Miller, Judge. Action at law to recover damages for injuries received by plaintiff through, a fall upon a sidewalk in the defendant city. The answer was a general denial. The case was tried to a jury, resulting in a verdict and judgment for plaintiff in the sum of $5,219. Defendant appeals. —

— Hon. J. H. Preston, Judge. . Action by tbe administrator to recover damages for injuries alleged to bave been received by intestate by reason of a defective alley crossing in the sidewalk of defendant city, which injuries resulted in death. At the close of plaintiff’s evidence, on motion, a verdict was directed for defendant. Plaintiff appeals.—

— Hon.- F. M. Powers, Judge. Action in equity for the abatement of an intoxicating liquor nuisance. From an order refusing a temporary writ of injunction, the plaintiff appeals.—

— ■ Hon. A. S. Blair, Judge. Action at law to recover damages for the death of plaintiff’s minor son, alleged to have been caused by the defendant’s negligence. Judgment for plaintiff, and defendant appeals. — ■

— Hon. W. E. Miller, Judge. The nature of-tbe 'action and .remedy applied are stated in the opinion. J. W. Squire only appeals.—

— Hon. A. H^. MoVey, J udge. Suit at law' on a demaud certificate of deposit. A demurrer to the petition was sustained, and the plaintiff appeals.—

— How. James H. Bothrock, Judge. Action to recover damages for personal injuries alleged to have resulted from falling or being thrown to the pavement in attempting to alight from a street car operated by the defendant company. Verdict and judgment for plaintiff for $2,000. Defendant appeals. —

— Hon. A. LI. McVey, Judge. Action by plaintiff, as trustee in bankruptcy of tbe estate of William Johnson, bankrupt, to recover from tbe defendants tbe value of a stock of goods transferred by tbe bankrupt to defendants as creditors when insolvent and witbin four months of tbe adjudication of bankruptcy, with intent to give to defendants a preference over other creditors, and to binder, delay, and defraud all other creditors of said bankrupt.

<p>Negligence: safe place to work. A street car company which 1 by arrangement with the postoffice department collects mail in boxes attached to its cars, to be taken therefrom at the car barn by a postal carrier, is bound to provide safe access to such cars. Under the evidence the question of defendant’s negligence was properly submitted.</p> <p>Instructions: verbal inaccuracies. The mere clerical omission 2 of a word which could not have led the jury to a misunderstanding of the court’s instruction, will not constitute reversible error.</p>

<p>Minor’s contracts: disaffirmance: fraud. In a proceeding to 1 disaffirm a minor’s contract for the purchase of corporate stock and to recover back the consideration paid therefor, the evidence is reviewed and held sufficient to show that the indorsee of the minor’s note, given as part consideration for the stock, obtained the same with knowledge of the minority and that it was originally procured by fraudulent representations as to the solvency of the corporation.</p> <p>Disaffirmance: release of minor and surety. Timely disaffirm2 anee and a return or offer to return the consideration received will relieve both a minor and his surety from further liability on the minor’s contract, even though the obligation is held by an indorsee where such indorsee took the same with notice of the minority, that disaffirmance was about to be made, and also knowing at the time it took a renewal obligation that the payee was insolvent.</p> <p>Insolvency: preferences. Neither a claim for damages for false 3 representations in the sale of corporate stock, nor for money paid in the purchase thereof by a minor on a contract which he afterwards disaffirmed, nor the claim of an indorsee of such contract who has been denied recovery thereon because of the disaffirmance, are entitled to preference in the distribution of the insolvent estate of the corporation.</p>

Fremont District Court.— Hon. W. R. Griben, Judge. Plaintiff commenced his action before a justice of the peace of Fremont county to recover of the defendant the sum of $22.50, alleged to be due on account of the unused portion of a certain railroad ticket purchased by him of the defendant. The defendant appeared, and answered, denying generally, and also setting up affirmative matters of defense.

— Hon. W. D. Evans, Judge. Action at law to recover for the use and occupation of real estate. Many defenses were interposed, to some of which we shall advert during the course of the opinion. A jury was called, and at the conclusion of the evidence the trial court directed a verdict for plaintiff, and defendant appeals.&wkey;

Scott District Court. — ■ Hon. J. W. Boling-er, Judge. Action to set aside an order admitting to probate an instrument purporting to be a codicil to a will.. The record makes it appear that in January, 1900, Maria Busse, a widow, then living in Davenport, executed her will, by the terms of which, .among other things she made bequests to her four children, the appellant Carl Busse, and the appellees, Minna Doering, Marie Mielitz, and Wilhelm Schaeffer.

— -Hon. F. E. Gay-nor, Judge. Both of these cases are suits in equity, asking that the defendants be restrained from selling the northeast quarter of section 13, township 93, range 48, Blymouth county, Iowa, on general executions issued on 'judgments against Joseph McCorkell in favor of the defendants North and the Chicago Lumber Company, one of which was rendered in 1880, and the other in 1883.

— Hon. A. H- McVey, Judge. Suit in equity to enjoin defendants from levying and collecting special assessments against plaintiff’s property for the paving of a street known as “ West Grand Avenue,” in •the city of Des Moines. There was a trial to the court, resulting in a decree dismissing plaintiffs’ petition, and they appeal.- — •

<p>Pledges: foreclosure: notice. One in possession of corporate 1 stock as a pledge to secure the payment of money borrowed by him to meet assessments thereon, cannot cut off the own■er’s rights therein by a simple notice to him that if he fails to pay the same within a specified time the pledgee will do so and claim the stock as his own.</p> <p>Corporate stock: proof of ownership. On an issue of the owner-2 ship of corporate stock, where both parties claim title through a receiver’s sale, it is unnecessary for plaintiff to prove the receivership, as the same is a collateral inquiry.</p> <p>Receiver’s sale: purchase by receiver. Although the indirect 3 purchase of property by a'receiver at his own sale is irregular and voidable, it is not necessarily void, nor is it subject to collateral attack. .</p> <p>Estoppel. In an action to recover the proceeds of corporate 4 stock pledged to defendant, plaintiff’s conduct in failing .to prosecute his claim is held insufficient to estop 'him from claiming title to. the stock.</p>

<p>Evidence: waiver of objection. Error in admitting incompetent 1 testimony on the statement of counsel that its relevancy will be made to appear later, is waived by a failure of the objecting party to move to strike it out.</p> <p>Evidence of value: competency. Where, a witness was shown to 2 have assisted in invoicing a stock of goods shortly previous to its destruction by fire, to have handled and known its value at that time, and to be engaged in the sale of similar goods, her competency on the question of value was established.</p> <p>Appeal: denial of additional abstract. Where there is a denial 3 by the appellant of the appellee’s additional abstract, which relates to the evidence, the transcript of the evidence should not only be certified, but'the denial abstract or printed argument should point out the specific pages of the transcript relied on to sustain the denial.</p>

— Hon. A. H. McVey, Judge. Action at law to recover 'a commission for finding a purchaser for defendant’s property. Trial to a jury. Verdict and judgment for plaintiff, and defendant appeals. — •

: — How. A. H. MoVey, Judge. ' Action at law to recover damages as a result of defendant’s placing six car loads of cattle belonging to plaintiff in certain yards in the city of Des Moines, wbicb it is claimed were infected with Texas fever. Trial to a jury, verdict and judgment for plaintiff, and defendant appeals.

— Hon. W. D. Evans, Judge. Action for damages resulted iu a directed verdict for defendant, upon which, judgment was entered. The plaintiff appeals.—

<p>Receiving stolen property: guilty knowledge: felonious intent. 1 To convict of the crime of receiving stolen property, it is necessary to show defendant’s guilty knowledge of the man’ ner in which the property was obtained; and receiving property under such circumstances implies a felonious intent.</p> <p>Evidence of guilty intent. On a prosecution for receiving stolen 2 property, evidence which tends to show defendant’s guilty . knowledge, intent, purpose, or design, is competent although it may show that defendant has committed some other crime.</p> <p>Felonious intent: evidence. On a prosecution for receiving stolen 3 goods, it is. competent to prove that the defendant 'received other stolen property belonging to the same "prosecutor although not from the same person, where defendant knew that the person from whom he purchased it had no authority to sell the same, as bearing on defendant’s intent.</p> <p>Presumption as to stricken evidence. Where the jury was directly 4 told not to consider evidence which had been stricken out, it will be presumed on appeal that it did not do so. •</p> <p>Larceny. In a prosecution for receiving stolen property the de5 fendant cannot complain of the court’s statement, 'that it is not necessary to use the word “ steal ” to convey the impression of larceny, when made in connection with a ruling in his favor.</p> <p>Receiving stolen property: evidence. On a prosecution for re-6 ceiving stolen goods, it was not error to refuse to permit the prosecutor to state who besides himself handled the goods stolen.</p>

—-IIon. J. E,. Whitaker, Judge. Suit on a fire insurance policy. Trial to a jury, and a verdict and judgment for the plaintiffs. The defendant appeals. —

— Hon. James A. Howe, Judge. Action to enjoin the defendant lodge and its trustees from removing or barricading a stairway in a building owned by the defendant lodge, in which stairway the plaintiff, who owns an adjoining building, claims to have an easement. Decree for plaintiff, from which defendants appeal.—

— How. F. M. Powers, Judge; Action to recover damages for the destruction by fire of a dwelling house and contents upon which plaintiff had a fire insurance policy in the sum of $1,000, which indemnity it paid to the original owner of the property destroyed. Liability on tbe part of tbe company is predicated upon its setting out tbe fire. Defendant denied that it was responsible for the fire, and denied all negligence on its part.

— Hon. A. H. McVey, Judge. Suit to recover damages for personal injuries. There was a directed verdict for the defendant, and the plaintiff appeals. —■

Action of certiorari originally brought in this court to determine the correctness of certain proceedings had before the defendant, as judge of the Eighth Judicial District, and all as more fully stated in the opinion. —

<p>Appeal from Blade Haivlc District Court. — Hon. E. C. Platt, Judge.</p> <p>Action at law to recover damages for failure to couvey real estate pursuant to a contract alleged. The facts are stated in the opinion. There was a jury trial, and verdict and judgment in favor of plaintiff. The defendant appeals.</p>

— Hon. N. W. Macy, Judge. Action to recover damages growing' out of a sale and conveyance of real estate by defendant to plaintiff. Trial Was'had to a jury, resulting .in a verdict for plaintiff. A motion by defendant to set aside the verdict as rendered, and for a new trial, was sustained on condition, and from the order thus made the plaintiff appeals. — -

— ■ Hon. Franklin C. Platt, Judge. Action to recover damages for a personal injury caused by a defective sidewalk. From a judgment on verdict in favor of plaintiff, defendant appeals.

<p>Appeal from Hamilton District Court.— IIon. J. H. Whitaker, Judge.</p> <p>The opinion states the case.</p>

— Hon. W. D. Evans, Judge. Certiorari proceedings to prevent the assessment and collection of the cost of constructing a ditch pursuant to the provisions of chapter 2, title 10, .of the Code, and acts sup-1 plementary thereto. The district court found for the defendants, dismissed the petition, and plaintiff appeals.—

Appeal .from Buena Vista District Court.— Hon. A. D. Bailie, Judge.

— Hon, G. W. Burn-ham, Judge. Action to recover moneys had and received.' The opinion states the case. There was a trial to the court without the intervention of a jury, resulting in judgment in favor of defendants. The plaintiff company appeals.

''Appeal from Cherokee District Court. — Hon. Geo. W. Wakeeield, Judge. Action of replevin originally brought against Miller & Sachse as a firm, notice being served on E. G. Sachse as a member of said firm. Subsequently,. by amendment, the members of the firm were made defendants, without further service of notice.

— Hon. Wm. R. Hutchinson, Judge. Habeas corpus proceedings instituted in the name and oh behalf of Anna Van Auken, a minor child, by E. Van Auken, her father and next friend, to determine the question of her custody. Erom a judgment in favor of defendants, plaintiff appeals. —

<p>Parent and child: emancipation: evidence. A father’s emancipation of his minor son may be in writing or by parol, and may be proved by circumstantial-evidence or implied from con.duct. Evidence reviewed and held to require submission of the question of emancipation.</p>

—- Hon. J. H. Rothrock, Judge. Action to recover damages for injuries alleged to have been received by plaintiff while in the employ of defendant in attempting to couple a locomotive tender provided with a link and pin coupling to a car provided with an automatic coupling.

<p>Parent and child: loss of services: injury to clothing: recov1 ery of damages. The father of a minor may recover damages for any injury to the child’s clothing, loss of services and medical attendance, occasioned by the wrongful act of another.</p> <p>Conspiracy: evidence: liability of conspirators. Evidence re-3 viewed and held admissible for the purpose of showing that plaintiff conspired with another to deprive defendant of the custody of his daughter, and also to warrant a finding of liability for injury to the clothing and health of defendant’s daughter, which, was the natural result of executing the common design.</p> <p>Assault: mitigation of damages. One who makes a deliberate 3 assault upon- another cannot show a provocation in mitigation of damages.</p>

— Hon. Byron W. Preston, Judge. Action on a promissory note, aided by attachment. Tbe defendants, in tbeir answer, because of want of information, denied that plaintiff was owner of tbe note, and by way of counterclaim alleged tbat tbe writ of attachment was sued out wrongfully and maliciously, and prayed judgment for damages. Judgment by default was entered on tbe note, and tbe counterclaim dismissed.

<p>Appeal from Montgomery District Court. — Hon. N. W. Macy, Judge.</p> <p>Action at law to set aside the probate of a will, and to have the will held for naught, as having been procured by fraud, duress, and-undue influence. At the conclusion of the evidence offered for plaintiffs, the court, on motion, directed a verdict for the defendants, and plaintiffs appeal from a judgment on such directed verdict.—</p>

<p>Appeal from Marshall District Qowrt.— Hon. G. W. Burn-ham, Judge.</p> <p>Action to recover damages for injuries received by plaintiff while in defendant’s-employ, resulting, as alleged, from defendant’s negligence. At the close of plaintiff’s evidence the court, on motion of defendant, directed a verdict in its favor, and the plaintiff appeals.</p>

— ■ IIon. O. A. Bying-ton, Judge. Dependant was convicted in a prosecution for seduction, and appeals from the sentence, of three years’ imprisonment in the penitentiary.

— Hon. W. S. Withrow, Judge. Dependant was charged with willfully, unlawfully, maliciously, and mischievously pulling up, carrying away, ..and severing from the land of one Anderson 41 fruit trees -then and there standing and growing, and on a trial to a jury -had in 1901 was convicted. This conviction was set aside on appeal to this court. See 119 Iowa, 330. He was again ■ tried in 1904, and. convicted, and now appeals from the judgment.

— Hon. A. D House, Judge. Defendant was indicted, ■ tried, and convicted of the crime of embezzlement, and from the judgment imposed on the verdict appeals.—

— ■ Hon. M. A. Roberts, Judge. Indictment charging defendant with larceny from a building in the daytime. Verdict and judgment of guilty, and defendant appeals.—

<p>Appeal from Cherolcee District Court.— IIon. George W. Wakefield, Judge.</p> <p>From a judgment of guilty of assault with intent to inflict a great bodily injury, defendant appeals.—</p>

— Hon. O. A. Byington, Judge. Action iu equity for an accounting, etc. The opinion states the case. The trial resulted in a decree for defendants, and plaintiffs appeal.—

<p>Appeal from Keokuk District Court.— How. B. W. Preston, Judge.</p> <p>The defendant was convicted'of the crime of adultery, and appeals.—</p>

— Hon. H. M. Towner, Judge. Suit at law to recover for services rendered in divorce proceedings between the defendant' and his vúfe. The plaintiff Barngrover is an attorney and the plaintiff Hughes is a detective.

— Hon. G. W: Wakneield, Judge. Action brought by the State against a non-resident of • the State, who has. been confined in the hospitals for the insane at Independence and Clarinda, to recover the amount expended -for him and on his behalf while thus confined. Judgment for the defendant, from which the State appeals.—

<p>Appeal from WmneslieiJc District Court. — Hon. L. E. Fellows, Judge.</p> <p>The defendant was convicted of seduction, and appeals.</p>

— Hon. W. G. Clements, Judge. The State appeals from a verdict of not gnilty and a judgment dismissing an indictmént against the defendant for the crime of obtaining property by false pretenses.—

— Hon. James W. Bollinger,' Judge. Mary A. Scott, a widow, died intestate May 13, 1903, seized of the following real estate: Lot 9 in block 11, in the city of Muscatine; also lot 8 and the east half of lot 9 in block 106, and lot 8 in block 101.

— ■ Hon. Jambs W. Bollinger, Judge. Suit in equity to foreclose a mechanic’s lien. The •defendant Bruno Zoeckler entered into a written contract with one F. C. Nhare, by the terms of which Nhare agreed to erect a dwelling house for him for the sum of $1,850, $1,200 of which -was to be paid as the building progressed, and the balance, $650, when the building was completed. The intermediate payments were made as agreed, but the building was never completed.

<p>Banks and banking; payment of taxes by bank: recovery from 1 stockholders. It is the legal duty of a national bank to pay the taxes assessed against its stock, and it is authorized to deduct the same from dividends due the stockholders, without a resolution of the board of directors to that effect; and where such payment has been made the claim for reimbursement is a bank asset for the recovery of which an individual stockholder cannot maintain an action against the bank for his own benefit, unless, possibly, the bank has refused to act.</p> <p>Appeal: amount in controversy: remittitur. A remittitur filed Z after judgment has been entered is too late to affect the amount in controversy so far as the right of appeal is concerned.</p>

— ■ Hon. J. H. Preston, Judge. Action by plaintiff as beneficiary under a certificate of insurance in the defendant association issued to one Prank Knapp, husband of the plaintiff, now deceased. Verdict and judgment for plaintiff, from which defendant appeals. — -

— Hon. M. A. Rob- „ erts, Judge. Suit in equity to quiet plaintiff’s title to a strip of land,, and to one-half of a brick and stone wall standing thereon, on the theory that the wall is-a party one. The trial court denied the relief asked, and plaintiff appeals.—

— Hon. M. A. Roberts, Judge. Suit on a fire insurance policy. Trial to a jury, and verdict and judgment for the plaintiffs. The defendant appeals.—

— ■ Hon. B. H. 'M'tt.t.e'r.j Judge. Action by plaintiff, as the administrator of the estate of W. L. Overhouser, deceased, to recover damages caused, as alleged, by negligence on the part of defendants, and resulting in the death of said W. L. Overhouser.

<p>Appeal from Warren District Gourt.— IIon. Edmund Nichols, Judge.</p> <p>Ti-ie opinion states the case.—</p>

<p>Appeal from Calhoun District Court.— Hon. Z. A. Church, Judge.</p> <p>The opinion states the case. From a judgment in favor of interveners, the plaintiff appeals.</p>

— Hon. W. E. Miller, Judge. P. H. Bevin was appointed receiver of the insolvent estate of T. C. Reid, which was reduced to money prior to June 1, 1898, and deposited in the Corning State Savings Bank. The account continued until the bank closed and C. F. Andrews was appointed receiver'in February, 1904, at which time there was a balance of $1,466.63. The course of the litigation necessitating this long delay appears in First Nat.

<p>Quieting title: redemption from ta\x sale. In an action to quiet 1 title under a tax deed, the evidence is held to show sufficient claim of right and color of title in defendant, coupled with possession, to justify an attack upon the tax deed and to sustain his right to redeem therefrom.</p> <p>Redemption from tax sale: payment of taxes. One seeking to re-2 deem from a tax deed, where proper notice of the expiration of the period of redemption was not given, is not required to show payment of taxes.</p> <p>• Same. One who has faiied to show himself entitled to notice of the 3 expiration of the period of redemption from a tax sale cannot-question a tax deed issued thereunder.</p>

<p>Sales: action for fraud. The mere expression of opinion by an. 1 agent concerning the service, ability and capacity of a machine, cannot be made the basis of an action for fraud in procuring the contract of sale, especially where the statements are covered by a written warranty upon which the right to rescind is-predicated.</p> <p>Breach of warranty: evidence. The evidence in an action to en-2 force payment for a threshing engine is reviewed and held insufficient to entitle the defendant to rescind the contract of sale on the ground of breach of the warranty or to entitle-him to any affirmative relief.</p>

— Hon. William Hutoiiinson, Judge. The parties hereto entered into a written agreement by the terms of which the plaintiffs were appointed the defendant’s agents for the sale of engines and threshing ma* chinery in Akron, Iowa, and the trade tributary thereto. They were to canvass the territory for the sale of said machinery, and bound themselves not to sell or take orders for the sale of other machines of the same character.

— Hon. James D. Gamble, Judge. Action to recover the expenses incurred by plaintiff as sheriff in the payment of railroad fare and livery hire, hotel bills, etc., in the execution of criminal process. A demurrer to the petition was sustained, and judgment rendered for the defendant, from which plaintiff appeals.—

<p>. Appeal from Mahaska District Court.— Hon. W. G. Clements, Judge.</p> <p>Proceeding to obtain construction of will. The material facts are stated in the opinion.</p>

<p>Wills: Undue influence: burden of proof.. The burden is upon 1 one contesting a will on the ground of undue influence to prove such influence, and that it operated upon the mind of the testator at the time of making the will so as to change his real desire and intent.</p> <p>Undue .influence: evidence. Neither opportunity to exercise un2 due influence over a testator nor advice nor solicitation will vitiate a will, unless it be further shown that the real purpose and intent of the testator wrere destroyed thereby.</p> <p>Same. The fact that a testator was exceedingly fond of the con-3 testant and that his will was unjust to her are not enough standing alone to defeat a will.</p> <p>Same. Where it is conceded that a testator was of strong mind 4 and not easily influenced and up to the time of his death a prosperous business man, the evidence of undue influence must bé clear and convincing to defeat his will.</p> <p>Same. Evidence reviewed and held insufficient to support a ver5 i diet and judgment setting aside a will on the ground of undue influence.</p>

— IIon. Eranklin C. Platt, Judge. This is an appeal from an order in probate. The record makes it appear that S. J. Eisher died testate in April, 1902, and that by his will Amanda K. Eisher, his widow, was nominated as executrix without bond. The will was duly probated, and Mrs. Eisher qualified as executrix May 29, 1902; the last publication of notice thereof being had on June 12, 1902.

— ITon. John T. Scott, Judge. The defendant was accused, in an information filed in the mayor’s court, of having violated section 4 of Ordinance No. 43 of the incorporated town of Sharon “by operating as a peddler.” Trial resulted in judgment of conviction. from which he appealed to the district court, where he was acquitted. The state appeals.—

— Hon. J. H. Apple-gate, Judge. . • • Action to recover commission for the sale of real estate. Verdict and judgment for defendant. Plaintiff appeals.—

— Hon. W. G. Clements, Judge. Action in equity to set aside and cancel a release of a chattel mortgage, and to set aside a judgment, and to recover of the defendants on a promissory note. The release and judgment were canceled, and judgment was rendered for the plaintiff against the defendant Taylor, and the action was dismissed as to the defendant Moore. The plaintiff and Taylor apeal; the plaintiff will be designated as the appellant.

— Hon. W. L. MoNamaran, Judge. Suit in equity to set aside a deed made by the deceased, Sarah C. Conley, .to the defendant Ida M. Crocker; for an accounting from E. W. Crocker, who, it is claimed, was an agent for the deceased; and to cancel a mortgage made by defendant Ida M. Crocker to one Schweite. The trial court dismissed the petition, and plaintiff appeals.

<p>Appeal from Taylor District Court. — ■ Hon. H. M. Towner, Judge.</p> <p>The opinion states the ease.</p>

— Hon. George W. Wakefield, Judge. Action in equity for partition of real estate. Dfecree dismissing bill, and the defendants Ermine E. Bartels and August Bartels appeal.—

<p>Insurance: mortgage of insured property: delivery. Where an 1 assured executed a chattel mortgage upon the property cov-t ered by the insurance policy in violation of the terms of the policy and delivered it to the party beneficially interested with intent that it should become effectual as against him, concerning which fact of delivery there was np dispute in the evidence,, the question of delivery- became one of law rather than of fact and the • company was entitled to a directed verdict.</p> <p>Mortgage of insured property. The execution and delivery of a 3 mortgage on insured property in violation of the terms of the policy will render the same void, and it is immaterial that the mortgage was given to a trustee without his assent or that he afterward refused to accept the trust.</p>

— Hon. C. W. Vermillion, Judge. Action at law to recover commissions for services rendered in procuring a purchaser for defendant’s real estate. Trial to a jury, verdict and judgment for plaintiff, ¿nd defendant ' appeals.—

— Hon. M. A. Roberts, Judge. The plaintiff presented a plat, designated 'as “ Giltner’s Second Addition to Albia, Iowa,” to the council of that city for approval. This being refused, action in mandamus was instituted- to compel such approval and certification thereof by the mayor and clerk. The petition was dismissed, and plaintiff appeals.—

<p>Appeal from Madison- District Court.— IIon. J. H. Apple-gate, Judge.</p> <p>Action in equity to recover the value of personal property sold to satisfy an execution against the plaintiff’s hpsband. There was a judgment for the defendant, and the plaintiff appeals. — ■</p>

<p>Execution sales: . enforcement of bid. No one but a judgment 1 holder or his attorney can proceed under Code, section 4033 against a bidder at an execution sale to enforce payment of his bid; and if neither of these parties act in the premises it is the duty of the sheriff to resell the property.</p> <p>Refusal or withdrawal of bid. A sheriff, for satisfactory reasons, 2 may refuse a bid at an execution sale, or if accepted may permit its withdrawal and resell the property.</p> <p>Mortgage foreclosure: disposition of surplus. The owner of land 3 is not entitled to any surplus arising from a sale on foreclosure of a mortgage, until all valid liens against the property are paid.</p> <p>Sale in bulk: vacation. A sale on mortgage foreclosure of 100 4 acres in bulk, without being subdivided and offered in separate tracts, may be vacated on proper application.</p> <p>Enforcement of bid: privity. .There is not such privity between. 5 the purchaser of property subject to a mortgage which he assumes and the bid' made by the mortgagee on foreclosure, as will entitle the purchaser to insist on the acceptance of the bid by the sheriff.</p> <p>Agency of sheriff. In the sale of property under foreclosure of 6 mortgage, the sheriff represents the owner as well as the other parties, and having reported a certain bid and sale as a nullity, neither he nor the owner can afterward enforce the same.</p> <p>Withdrawal of bid: costs. A mortgagee purchasing at his own, 7 sale under a judgment of foreclosure is not required to pay. the costs to be relieved from a bid made by mistake.</p>

— 'Hon. B. H. Miller, Judge. Action to recover the value of certain sheep alleged to have been converted by defendants to their own use. A trial to the court resulted in a judgment in favor of plaintiff, and the defendants appeal.—

— Eon. James W. Bollinger, Judge. Suit to recover damages for personal injuries. There was a trial to a jury, and a verdict and judgment for the plaintiff. • Defendants appeal.—

<p>Railroads: assumption of risk: evidence. The burden is upon 1 the one pleading the assumption of a risk not usually incident to the employment, and unless the evidence in support of the plea is such that reasonable minds can reach but one conclusion, a verdict should not be directed. Evidence held insufficient to show assumption of the risk as a matter of law.</p> <p>Contributory negligence. Where there is a conflict in the evidence 3 the question of contributory negligence is for the jury, and the court cannot direct a verdict.’</p> <p>Negligence: instruction. In an action for the death of an engi3 neer, who was run over while crossing a track in defendant’s yard, the court’s instruction regarding various phases of the negligence charged, when construed as a whole, is not open to the objection that the jury was authorized to find defendant negligent unless it provided a man or guard at the, crossing and also a lookout on the engine.</p> <p>New Trial: newly discovered evidence. It is not error to refuse 4 a new trial on the ground of newly discovered evidence, where the same is merely cumulative.</p>

<p>Appeal from Scott District Court.— IIon. J. W. Bollinger, Judge.</p> <p>Action at law to ¡recover damages for personal injuries received by plaintiff while acting as a brakeman on one of defendant’s trains. The alleged negligence consisted of defects in a side track or switch over which plaintiff was riding, rapid and unsafe speed of the train, and failure to provide a sufficient number of employes to assist in the work. Defendant’s answer was a general denial, a plea of assumption ■of risk, and a contract bar of the right of action. On these issues the case went to trial to a jury, resulting in a verdict .and judgment for plaintiff, and defendant appeals.—</p>

— IIon. A. H. McVey,. Judge. Action in equity to recover judgment upon a promissory note and to foreclose a mortgage given to secure the same. 'There was a decree in favor of plaintiff, and the defendants appeal.—

<p>Appeal from Monroe District Court.- — Hon. O. W. Vermillion, Judge.</p> <p>Action in equity for specific performance of a contract to convey an interest in real estate.' The plaintiff appeals.</p>

<p>Appeal from Mahaska District Court.— How. W. G. Clements, Judge.</p> <p>Action in equity to foreclose a mortgage on real estate. The opinion states the facts. There was a decree for plaintiff, and the defendant Downs alone appeals.—</p>

<p>"Vendor and vendee: fixtures: deeds: breach of covenant. Fixtures of a permanent character, fitted and suited to the building in which situated so that one without knowledge to the contrary would, from an inspection, be led to believe that they constitute a part of the building, will pass with a deed to realty, and the purchaser of the building, without knowledge of a tenant’s ownership of such fixtures, has a right of action therefor on the covenant of his deed.</p>

Boone District Gourt..— TIon. «T. R. Whitaker, Judge. Action for damages resulting from the discharge of plaintiff before the expiration of the time he was to work for defendant as a butter maker. Judgment for plaintiff. The defendant appeals.

— Hon. J. E. Whitaker, Judge. Action to recover tbe price of a machine alleged to have been sold and delivered. Verdict and judgment for the defendant, and plaintiff appeals.—

<p>Appeal from, Boone District Court.— Hon. J. K. Whita- . her, Judge.</p> <p>The defendant was tried on an indictment charging him with an assault with intent to commit murder. He was found guilty of an assault with intent to commit manslaughter, and from a judgment on the verdict he appeals.</p>

<p>'Appeal from Polk District Court.— Hon. W. H. McHenry, Judge.</p> <p>Dependant was indicted, for assault with intent to commit manslaughter, and convicted of assault with intent to commit great bodily injury. From a judgment on this conviction, imposing a fine of $100, defendant appeals. — •</p>

— Hon. A. S. Blair, Judge. Action at law to recover the value of certain real estate, which it is claimed defendant agreed to give plaintiff in exchange for other real estate. Defendant denied the allegations of the petition and pleaded performance on his part by the execution of a deed to plaintiff for the real estate in question, which was accepted and retained by'plaintiff and is now held by him.

— Hon. J. F. Clyde,. Judge. Action in equity to quiet the title to and to iecover the possession of real estate. There was a judgment for the defendants, and the plaintiffs appeal.—

— Hon. O. W. Vermillion, Judge. Suit in equity to foreclose a mechanic’s lien. There was a trial, and a judgment for the’ railway company. The plaintiff appeals.—

<p>Taxation: consigned property: to whom- assessable. The prop-1 erty of a non-resident stored with a consignee in this State for an indefinite period and for the purpose of distribution on sales by the owner is properly assessable to the consignee under the provisions of Code sections 1314 and 1318.</p> <p>Inter State Commerce i taxation of property in transit. Proper-2 ty of a non-resident while actually in transit is not subject to taxation, but when stored with a consignee within the state, for an indefinite period, awaiting sale by the owner and distribution by the consignee, it cannot be said to be in transit and its taxation in the district where so stored is not an infringement of the interstate commerce law.</p>

— Hon. B. W. Preston, Judge. The defendant was convicted before the mayor of the town of Sigourney of having violated an ordinance of said town, and he appealed to the district court, where he was again convicted. He now appeals to this court.—

— • Hon. A. H. McVey, Judge. Action for damages occasioned by tbe refusal to allow plaintiff to eat at tbe defendant’s table. Verdict and judgment for plaintiff, and defendants appeal.—

<p>Wills? life estate: construction. A life estate will not be enlarged into a fee by an additional power of disposal however broad, where the will contemplates a remainder and provides for its distribution but such portion of the estate as shall be undisposed of at the termination of the life estate will vest in the remaindermen. The will in the instant case is construed and held to create only a life estate with power of disposal. ' Justices Deemer and Bishop dissenting.</p>

<p>Will: life estate: power of disposal. Under a will creating in 1 the wife a life estate in all property, real and personal, with full power of disposal for her own use and the maintenance of the family, she has power to sell and convey the real property at any time during her natural life, especially where there is a further distribution of any property “ remaining in her possession and the proceeds thereof.”</p> <p>Quieting title: adverse possession. An action to quiet title based 2 on a claim of adverse «possession under a deed conveying absolute title and made in good faith and for an adequate consideration, cannot be defeated by a-mere showing that the grantee at the time of the conveyance knew of the possibility that some adverse claim to the land might be made in the future.</p> <p>Laches-: One, who, cognizant of all the facts, has slept upon his 3 rights for twenty years, cannot assert an interest in real property against a party in possession under good faith conveyance for that time. »</p>