Volume 13 — Iowa Reports

The facts are stated in the opinion of the court. Contracts vitiated by fraud are voidable, and not void. The injured party may annul or enforce the contract, as the peculiar circumstances of the case may require. 1 Smith’s L. C. 276. An election to rescind or affirm must be made promptly on the discovery of the fraud. Id. 276; 2 Pars. Cont.' 278. A rescission can be effected only by placing the parties in statu quo or by an offer to do so.

The facts are fully stated in the opinion of the court. I. Testimony of a cotemporaneous parol agreement between defendant and Joseph Lambrite was inadmissible to change the legal character of the instrument made by the defendant to plaintiff.

Creditors’ Bill. The facts are fully stated in the opinion of the court. I. That evidence sufficient to overcome the sworn statements in the answers should be equal to the evidence of two witnesses, citing 2 Story Eq. Jur. § 1528; 3 Green], E. § 287, and the authorities there referred to. The State of Iowa, exrel.

Petition to foreclose a tax title upon certain real estate ' described as “ all the town lots and blocks included within Woods’ Addition to the city of Iowa city.” The petition set out twenty-two deeds executed by the treasurer of Johnson county, conveying the property mentioned to the plaintiff pursuant to a sale made for taxes; and alleged that “William H. Woods, James Thompson and Patrick Smith were owners, and still are owners, of said real estate.” To this petition the…

Petitioners seek to enjoin the collection of certain taxes for the years 1857, 1858 and 1859. The bill was filed on the 27th, and the cause decided on the 28th September, 1860. Whether an injunction was allowed in the first instance, and the decision found on the record made on the final hearing, or on the application for the writ, does not appear. There was no answer, nor other pleadings than the petition.

Action to foreclose a tax title. Defendants answered, admitting the tax sale, and alleging that the premises had been redeemed, on the 14th day of March, 1857, by one W. H. Woods, then claiming an interest therein, by the payment of taxes then due on said property, and by the payment to Thomas Hughes, the treasurer of Johnson County, the amount of taxes for which said land had been sold, the cost of such sale, and the interest which had accrued thereon, up to the time of…

This was an action to recover an amount paid by plaintiff as surety for tbe defendant, upon a note executed by tbe parties, to one Ferdinand Grether. Tbe other material facts are stated in tbe opinion of tbe court. 1. Tbat as tbe demurrer was to tbe whole answer, and ' as all but one count of the answer is admitted to be sufficient, it should be overruled.

<p>1. Special administrator. Under the Revised Laws of 1843, the powers of a special administrator were limited to .the preservation of personal property of the decedent until a regular administrator could be appointed; and an. order of the Probate Court directing the sale of real estate by a special administrator was without authority of law and was void. The regularity of such an order and the proceedings thereunder may be collaterally impeached.</p> <p>2. Jurisdiction oe probate -court. The jurisdiction of a probate court over the settlement of the estate of a deceased person attaches and •becomes effective only upon the granting of letters of administration; and the power to make an order directing the sale of real estate for the payment of debts, arises only upon the presentation, by the legal and regular ■administrator, of the petition prescribed by law.</p> <p>3. Saids. The presentation of such a petition by the administrator confers upon the court jurisdiction of the subject matter, and its subsequent •proceedings ■will be presumed as regular and conclusive as those of courts of general jurisdiction, When the jurisdiction so far attaches as to require the court to hear and determine the sufficiency of the facts relied upon to confer such jurisdiction, whether they relate to the law, the process, the notice, or the petition, the action of the court will not be collaterally reviewed.</p> <p>4. Evidence : tax deeds. Tax deeds regularly executed under the revenue law of 1841, are prima facie evidence of the regularity of all prior proceedings in the levy of the tax and the sale of the property; and when such deed is attacked the burden of showing a failure to comply with the requirements of the law, in such proceedings, is upon the party making such attack. When, however, no record of the levy of the tax, or of the sale, is in existence, the burden is upon the party claiming under the deed.</p> <p>5. Recitals in a deed. The failure to recite one of the requisites to a valid levy of a tax in a deed in which all the proceedings had in such levy and all others essential to its validity are set out, is evidence, by implication, that the requirement omitted was not complied with.</p> <p>6. Case followed. Uaybwn v. KuU et at, 10 Iowa, 92, as to tax deed, cited.</p>

<p> Appeal from Dubuque District Court. </p> <p>The facts are stated in tbe opinion of tbe court.</p> <p>I. That the calculations of the commissioner in finding the amount due were erroneous; 2. That the installments which matured after the commencement of the action should not have been included; 3. That the sums paid to plaintiff’s agent, his authority never having been revoked, should be charged to her; 4. That as plaintiff refused to receive the installments as they matured, she should not recover interest thereon; 5. That the referee should have found the facts, citing Lambert v. Smith et al, 3 Calf. 408; 6. That the charge for attorney’s fees should not have been allowed by the clerk; citing Special laws. Eighth General Assembly, p. 34.</p> <p>Exceptions to the final report of a master in chancery should be first taken in the District Court, in order to bring the objection to the Supreme Court. Blake v. Borgan, 1 G. Greene, 547; Wilkes v. Rogers, 6 John. R. 591; Byington v. Wood, 1 Paige, 145 ; Methodist Episcopal Church v. Jaques, 3 John. Ch. 79 ; Jungk v. Jungk, 5 Iowa, 543 ; White v. Hampton, 10 Id. 242.</p>

<p>1, Lease: covenants: reservation oe rents. In a contract of lease a reservation of rent was in the following words: “Ata yearly rent of one thousand dollars for the first ten years, and twelve hundred and fifty dollars for the remaining nine years, payable at the expiration of each and every year of the lease. ***** The said lessees well and truly keeping and performing their part of these premises, to be by them performed as aforesaid.” It was held, that the language amounted only to an implied covenant to pay the rent, and the liability of the lessee determined on the assignment of the lease to another, and the acceptance of-rent by the lessor from the assignee. .</p>

<p>1. Appointment op administrators. The Probate Court may appoint one ■ -or more administrators of an estate, and an appointment of an additional administrator, against the protests of the one first appointed, will not be disturbed when it does not appear that the court has abused its discretion in making such appointment.</p> <p>2. Agreement oe separation. An agreement of separation does not dis- ' solve tlie marital relation of the parties, nor divest the wife of the first ■ right to administer upon the' estate of the husband.</p>

<p>1. Lease : homestead : assighment. P. leased to S. a certain lot for a term, of five years, for an annual rent agreed upon, and in the contract it was further agreed that if S. should erect a building suitable for a family, and a stable on said premises, the lessor should pay to the lessee the value of the same on the expiration of the term. The lessee made the proposed improvements and occupied the house as a homestead: Held,</p> <p>1. That the right to the possession of the premises during the term under the lease could not be assigned by the husband without the concurrence of the wife.</p> <p>2. That an assignment by the husband alone would carry to the assignee the right to recover of the lessor the value of the improvements at the expiration of the term.</p>

On the 8th of July, 1856, Waples and Walmsley made a mortgage on certain real estate, to secure a debt, then owing by them to the complainant, English. This mortgage was duly filed for record, July 7,. 1858. These same parties (mortgagors,) on the 14th of October, 1856, mortgaged the same, with other lands, to Dennis N. Oooley. In October, 1857, Cooley assigned his mortgage to Samuels, who in February, 1859 assigned the same to Mason.

<p>1. Judgment : joint obligation : merger. A decree itt foreclosure which, finds and determines the order and amount of the several liens on the mortgaged premises, and finds and adjudges that there is due from a firm of which the mortgagor is a member, to another defendant, a certain sum on a copartnership note, secured by a junior mortgage, and orders a sale of the mortgaged property for the payment of the same, without giving the holder a full and complete remedy against such mortgagor, does not operate to discharge the other joint obligors.</p>

<p> Appeal from Dubuque District Court. </p> <p>Plaintiff seeks to recover the value of certain real estate, appropriated by the city for the purpose of extending a street. The errors assigned relate to certain instructions given and refused, for which, see the opinion.</p> <p>I. The plaintiff could not recover without tendering a deed of the land alleged to have been taken. The ordinance, § 4, provides that the city shall have deeds of the property taken. Independently of the statute or ordinance, the common law makes the tender of a proper conveyance the condition precedent to the recovery of the purchase money. Benedict v. Weston, Morris, 490; School District No. 2 v. Bogers, 8 Iowa, 316; Parlcer v. Parmalee, 20 John. 130.</p> <p>II. The city council never laid out or established the street by any order or resolution; the property, therefore, was never appropriated; and plaintiff had no cause of action. Laws of the Sixth General Assembly, p. 353.</p> <p>1. There was no issue in the pleadings upon the question of tender, and plaintiff, therefore, was not required to prove such tender. Frentress v. Mobley, 10 Iowa, 450. 2. The charter and ordinances require the execution, of a deed only upon “ the payment of damages.” Laws Fourth General Assembly, p. 90, sec. 3. 3. It was competent for the city in any other manner than by resolution, in accordance with the ordinance, to ratify the assessment and appropriate the property.</p>

<p> Appeal from Dubuque District Court. </p> <p>Action to recover on a policy of insurance. The facts are stated in the opinion of the court.</p> <p>I. The court erred in instructing the jury as follows: “If you find there was no notice to the defendant of the subsequent insurances, you will then come to the question whether the last policies of insurance were void, for if they were, the plaintiff is entitled to recover, and in this it matters not whether notice was given or not.”</p> <p>1. There was no such issue made by the pleadings, and the jury could determine only the issues of fact. Parker v. Hendrie, 3 Iowa, 263; Brink v. Morton et ad., 2 Id. 422; Danforth, Davis & Co. v. Carter é May, Id. 552 ; Vanvaden v. Lapham, 5 Duer, 689; Cray v. Fowler, 5 Sand. 54; Van Santvoord’s PI. 416; Hubler v. Pullen, 9 Ind. 273; and cases cited, note 1.</p> <p>2. The only questions at issue were: (1). Did defendant execute the policy sued on? (2). Was there a loss by fire according to the conditions of the policy ? (3). Did the plaintiff own sufficient interest in the property to constitute an insurable interest? (4). Did plaintiff procure subsequent insurances, and fail to notify defendant thereof? The questions as to whether or not the plaintiff had complied with the conditions of the subsequent policies, or owned an absolute or leasehold interest in the property insured; or had failed to state the same; or whether facts existed which avoided the policies, were not in issue in the case, and could not be sprung upon defendant at the trial, or passed upon by the jury, and no evidence was admissible in proof thereof under the pleadings. See cases cited aboye; also, Walters v. Washington Insurance Go., 1 Iowa, 404; Bowen & King v. Hale, 4 Id; 430; U. S. Digest, Title General Issue, Evidence, vol. 17, 18, sec. 8, p. 443, Title Pleadings; Jeffrey v. iShalasenger, 1 Harris, 12; Haywood v. Harmon, 17 111. 477; Rose v. Mortimer, Id. 475; Manville v. Gay, 1 Wis. 250; Bolton v. Cummings, 25 Conn. 410; McKyring v. Bull, 16 N. Y. (2 Smith), 297; Brazil v. Isham, 1 E. D. Smith, N. Y. 257; Hubler v. Pullen, 9 Ind. 273; Parker v. Hendrie, 3 Iowa, 264; Insurance Co. v. Woodruff, 2 Dutcher, (N. J.) 541.</p> <p>II. The court erred in instructing the jury: “ If they— the said policies — were void, the plaintiff is entitled to recover, and in this it matters not whether notice was given or not.” “ A second policy, which is void, does not vacate the first; and the fact that the company who issued the second policy paid the amount insured, is of no consequence in the question here involved, if the payment were made upon a policy clearly void.” Campbell v. The JEtna Insurance Company, Supreme Court of Nova Scotia, May 81st, 1860: Bigler v. The New York Central Insurance Company, New York Court of Appeals, 1861; Carpenter v. The Providence Washington Insurance Company, 16 Pet. 495.</p> <p>III. Plaintiff by his acts has waived any objection to the policies, 19 Barb. 440 ; 5 Denio, 154; 25 Barb. 189; 4 Foster, 259, 263; Bigler case, as above cited.</p> <p>IY. The court erred in refusing to give the second and ninth Instructions asked by defendants to the jury, viz.:</p> <p>2d. “If the jury believe from the evidence that plaintiff was the owner of the property insured, and that his interest was absolute during the continuance of the policies (which plaintiff claims to be void) he must find for the defendant.”</p> <p>9th. “ That plaintiff has not produced before the jury sufficient legal evidence to prove that said David, the insured, did not own the said insured property, absolutely, at the time of the issuing of the said several policies.”</p> <p>I. The replication denies the allegation of the answer, that the plaintiff did make and procure other insurances upon the property; and thus sufficiently raises the issue tried in this case. 1 Ghit. PL, 512; Merrick v. Gibbs, 3 McCord, 315; Dixie v. Abbott, 7 Cush., 610; 14 Pick., 303; Anthony v. Wilson, 6 Cal., 640; 1 Humph., 12; Painter v. Weather-ford, 1 G. Greene, 97; Hildreth v. Tomlinson, 2 Id., 360, Walters v. The Washington Insurance Company; 1 Iowa, 408.</p> <p>II. The objection comes too late. . It should have been urged when the evidence was offered. Walters v. The Washington Insurance Company, 1 Iowa, 413; Woods and Hobart v. Morgan, Morris, 181; Sullivan et al. v. Finn, 4 G. Greene, 544; Harmon v. Chandler, 3 Iowa, 150.</p> <p>III. The subsequent policies were void, and could not operate to avoid the one upon which this action is based. One of their conditions was: “ If the interest in property to be insured be a leasehold interest, or other interest not absolute, it must be so represented to the company, and expressed in the policy in writing, otherwise the insurance shall be void.” The interest of the insured was leasehold, but was not so expressed in the policy.</p> <p>1. This condition constitutes a part of the contract. Ang* Fire Ins., p. 52, § 14; Murdoch v. Chenango County Mutual Insurance Company, 2 Com. 210; Roberts v. The Same, 3 Hill, 501; 3 Wend., 94; see, also, Emerson v. Murray, 4 N. H., 171; Duncan v. Sun Fire Insurance Company, 6 Wend., 494; 9 Barb., 201; 5 Pick., 181; 16 Wend., 39'5.</p> <p>2. This condition constitutes a warranty, and must be literally and strictly true; otherwise the policy is void, ab initio, and there is no contract between the parties. Ang. Fire Ins., p. 184, §§ 140-148, note 2, and authorities there cited; Pars. Mer. L., p. 519, § 6 ; 8 Kent, 288 ; D. Hahn v. Hartley, 1 Term K., 345 ; 1 Dong., 11, note 4; Burritt v. The Saratoga County Mutual Insurance Company, 5 Hill, 192; Jennings v. The Chenango County Mutual Insurance Company, 2 Denio, 81; Goix v. Lowe, 1 John. C., • 351; Murray v. The United Insurance Company, 2 Id., 171.</p> <p>IV. A. clause in' a policy of insurance requiring the insured to give the underwriters notice of subsequent insurances does not render it necessary for the assured, in order to recover on his policy, to give notice of subsequent policies which are void for breach of warranty. Jackson v. Massachusetts Mutual Insurance Company, 23 Pick., 423; Stacy v. Franklin Insurance Company, 2 Watts & S., 544; Schenck v. Mercer County Mutual Insurance Company, 4 Zab., 454; Philbrook v. New England Insurance Company, 5 Mo., 145; Jackson v. The Farmers’ Insurance Company, 5 Gray; Clark v. New England Fire Insurance Company, 6 Cush., 347; Forbrush v. The Western Massachusetts Insurance Company, 4 Gray, 337.</p> <p>The counsel for the appellant, in reply to the first proposition, cited Hogan v. Birch, 8 Iowa, 312 ; Dyson v. Ream, 9 Id., 52; Parker v. Hendrie, 3 Id., 264; Wafers v. Was/iington Insurance Company, 1 Id., 404; Hutchinson v. Langster, 4 G. Greene, 340 ; Bentley v. Bustard, 16 B. Monr., 686; Brazill v. Isham, 2 Ker., 9 ; Gatlin v. Gunter, 1 Duer, 266; Gravey v. Fowler, 4 Sand., 666 ; Seeley v. Engell, 17 Barb., 537; Insurance Company v. Woodruff, 2 Dutcher, 541; McKyring v. Nwli, 16 New York, 297. To the second proposition, Waters v. Washington Insurance Company, supra; .Mete v. Mayor, &c., 2 Seld., 179-189. To the third proposition: 1. If the conditions are regarded as warranties, then the law estops him from denying the truth of such warrantees according to their express terms. Frost v. The Saratoga Mutual Insurance Company, 5 Denio, 154, and the cases there cited; 2 Smith’s L. C., 460; 4 Gray, 440; Roe v. Jerome, 18 Conn., 138 ; Foster v. Newland, 21 Wend., 94; Petrie v. Feeler, Id., 173 ; lGreenl. Ev., § 207; Hill v. Reed, 16 Barb., 387; 4 Kent, 261, notes d and 1-2. If they are conditions merely, and not warranties, the failure to comply with them at the time, was merely an innocent concealment. The State• v. Rickman, 6 Foster, 232 ; Atlantia Insurance Company v. Goodale, 35 N. H., 328; Smith v. Saxton, 6 Pick., 483 ; Carpenter v. Providence Mutual Insurance Company, 16 Pet., 495 ; Clark v. New England Fire Insurance Company, 6 Cush., 645; Frost v. The Saratoga Mutual Insurance Company, 5 Denio, 154; Hale v. The Union Fire Insurance Company, 32 N. H., 295; Westlake v. St. Lawrence Mutual Insurance Company, 14 Barb., 212; Bouvier’s Law Diet., “ Waiver.”</p>

COMPLAINANTS seek to restrain the city from collecting certain taxes levied upon their lands for the year 1858. The lands assessed are outside the corporate limits as fixed by the “ Act of February 24, 1847,” but included by the amendatory act of January 22, 1853, (p. 89.) The right of the city to tax this character of property is the question involved. contended that Morford v. Unger, 8 Iowa, 82, differed from these cases in several particulars: 1.

ACTION for words charging the plaintiff with larceny. The defendant appeals. The material questions raised in the trial below are stated in the opinion of the court. (No argument on file.) I. What was said and done when the words complained of were spoken is admissible for the purpose of showing the feeling wbicb actuated the defendant. McClintoclc v. Cride, 4 Iowa, 453 ; 3 Am. L. C., 203; 3 Phil. Ev., 559 ; 2 Greenl. Ev., § 418. II.

<p>1. Husband and wine : possession op personal property. Under § 2499 of the Revision of 1860, personal property in the common use and joint possession of the husband and wife, is prima, facie under the control of the husband, and is subject to his debts to third persons. The wife can protect herself only by a compliance with the provisions and requirements of the section above mentioned.</p>

The facts are stated in tbe opinion of tbe court. contended that Pelan and Anderson were not judgment debtors of tbe. plaintiff and appellee, witbin tbe meaning of chapter 126 of tbe Revision of 1860, and cited Monell’s New York Practice, 342, 347; Jones v. Lawlin, 1 Sand. Sup. Ct. R., 722; Sales v. Lawson, 4 Id., 718; Conway v. Hitchins, 9 Barb., 378; Bossy. Cheesman, 9 Sand.Sup. Ct. R., 676, 680. contended that tbe appellants are tbe judgment debtors of tbe appellee.

<p>1. Witness : admnistbatob competent. In a proceeding in the Probate Court to enforce the payment of a claim against the estate of a decedent, the executor is a competent witness as to facts which occurred after the death of the deceased. Rev. of 1860, § 3980; Romans v. Hays’ Administrator, 12 Iowa, 210.</p> <p>2. Evidence and INSTRUCTIONS. The sufficiency of evidence tending to show fraud in obtaining a check, as a basis for an instruction, considered.</p> <p>3. Evidence: pleadings: execution op note. Under chap. 108, Laws of 1853, the supposed maker of a bill or note may prove that it was hot his deed. The burden of proving the execution can be placed upon the holder only by a swdrn denial. Poliowing Lyon v. Bwrn, 6 Iowa, 48.</p>

<p>1. Obdeb of evidence.- The Supreme Court will riot interfere with-the exercise of discretion by the District Court, as to the order in which evidence is introduced, except in cases of manifest abuse.</p> <p>2. Objection should be made below. ■ An objection to the form of an interrogatory addressed to a witness, which was not presented to the. court ■ below, will not be considered by the Supreme Court.</p> <p>3. Evidence : impeachment : depositions. When two different depositions of the same witness have been taken in the same cause, the first one taken cannot be'introduced-for the purpose of impeaching the second, when no foundation, was laid in the second deposition by calling the attention of the witness when such second deposition was taken to the statements made in the first, for the purpose of affording him an opportunity to confirm or explain the same. A general statement in the second deposition that when the first was taken the witness was sworn in the usual form, and that his testimony was then correctly written out by the offieer, is not sufficient.</p>

<p> Appeal from Dubuque District Court. </p> <p>For a statement of the facts, see the opinion of the court.</p> <p>relied upon Brace V. Reid, 3 G. Greene, 422; Le Neve v. Le Neve, 2 Eq. L. 0., pt. 1, 98; Jackson v. Given et al, 8 John., 140 ; Jackson y. Van Valkenburg, 8 Cqw., 260; Bumpus v. Plainer, 1 John. Ch., 219; Griffith v. Griffith, 9 Paige, 315, 318; Wheaton v. Dyer, 15 Conn., 309.</p> <p>relied upon Williamson v. Brown, 15 N. Y., 354; Nailor v. Fisk, 5 Cush., 256; Aiken v. Smed, 1 Tenn. R., 304; Dunham v. Day, 15 John., 567; Rogers v. Jones, 8 N. H., 268.</p>

Specific performance. The. facts are stated in the opinion of the court. 1. That the county judge had power, without consulting the people of the county, to purchase a court house and other public buildings. The State of Iowa, ex rel. Brooks, v. Napier, County Judge, 7 Iowa, 429. 2. That he had the power to buy on credit, and execute a note, bond or bill, evidencing such promise to pay.

The facts are stated in the opinion of the court. 1. That plaintiff did not belong to one of the classes of persons entitled to an exemption of a wagon, under § 3304 of the Revision of 1860. 2. That as the defendant had two wagons, the one for which he had a team was exempt,'if either. 3. That by consenting to the attachment of the wagon in controversy, he waived his right of exemption.

Mal-practice. Yerdict for plaintiff, and defendant appeals. As to the questions raised on the ruling of the court below in refusing to suppress portions of the deposition of C. H. Rawson, cited 1 Stark. Ey., 124; 2 Cow. & Hill’s Notes, Phil. Ey. (2d ed.), note 322, p. 722; McCarver v. Nealy, 1 G. Greene, 360; Hendricks & Cooper y. Wallis, 7 Iowa, 224; The State of Iowa y. Nash and Bedont, 7 Id., 347.

The plaintiff seeks to recover of the defendant for a breach of the following contract: “ In consideration that B. M and N. C. Amsden, of Manchester, Delaware county, Iowa, release the Dubuque and Pacific Railroad Company from all damages, and claim for damages, for borrow land taken by the Dubuque and Pacific Railroad Company, in the construction of their road to Manchester, which said damages are estimated at two hundred and fifty dollars; the Dubuque and Pacific Railroad…

This action was brought against Morris, Welsh and Dickey, upon two joint and several promissory notes. An attachment was asked and issued against the property of Morris and Welsh, and each of them. The attachment bond was joint and several, and made payable to Morris and Welsh, or either of them. Morris alone answers, and, among other matters, pleads a set-off, for damages sustained on account of the wrongful suing out of the attachment.

For a statement of the facts out of which this case arose see the report of the same case on a former appeal, 10 Iowa, 65, and The State of Iowa, ex rel. Alderson, v. The County Judge of Hardin County, 11 Iowa, 11. The particular questions raised on this appeal are stated in the opinion of the court. Does the record set out in the defendant’s return constitute a bar to this proceeding ?

Action oe Right. Plaintiffs claim as the heirs of Elizabeth Hunt. Defendant relies upon a title derived under certain judgments and executions. Judgment for defendant, and plaintiffs appeal. relied upon the. following authorities: Mcparte Peru Iron Company, 7 Cow., 540; Van Rensselaer v. The Sheriff of Albany, 1 Id., 501; Vaughn v. Dley, 4 Barb., 159; Van Rensselaer v. The Sheriff of Onondaga, 1 Cow., 443; Muerston v. Sawyer, 2 Wend., 407; Hoghton v. Hoghton, 11 Eng.

<p>1. School LAros: pee-empthm. A right to pre-empt school lands belonging to the 500,000 acre grant is not expressly given by the language of § 1010 of the Code of 1851; neither can such right be implied from the language employed therein.</p>

The facts are stated in the opinion of the court. relied upon Edwards on Bills and Prom. Notes, 192, and note 193, and 219; 5 Wend., 490; Kasson y. Smith, 8 Wend., 437; Smith v. Beclcett, 13 East., 186.

On the 31st of March, 1849, John Getty was the owner in fee of a lot in the city of Davenport. He, on that day, with his wife, Harriet, executed a power of attorney to one Collins, empowering him in their name to sell and convey this lot. Collins sold the property to one Eanson, and afterwards, by deed of October 29, 1850, undertook to convey the same to one Price, the assignee of Eanson. This deed was signed thus: “ Wm.

Action on an administrator’s bond. The petition sets out the death of the intestate, the appointment of the defendant, Bryant, as administrator of his estate, and the execution of the bond in suit by both of the defendants.

On the 26th day of January, 1856, plaintiff sued one McFaul in the District Court of Des Moines county, and obtained an attachment, which was levied upon some $30,000 worth of pork. McFaul was a non-resident of the state, and was not served. On the 29th of that month, McFaul released this property by executing a delivery bond, with defendants, Ooolbaugh & Brooks, as his sureties. This bond was payable to plaintiff, and in the form required by the statute.

Injunction. The petition shows that on the 3d day of June, 1856, one Webster borrowed of Kearns the sum of one thousand dollars, for the use of which he agreed to pay interest at usurious rates. Webster executed his note for a sum equal to the principal and the usurious interest, and secured the same by executing a mortgage on certain real estate. This real estate was subsequently sold by Webster to plaintiff, and conveyed by deed of general warranty.

<p> Appeal from Des Moines District Court. </p> <p>The facts are stated in the opinion of the court.</p>

Bill to foreclose a trust deed, purporting to be made by Theodore Effey. Service by publication: decree of fore-' closure without an appearance; execution — the land sold and a^ deed made to complainant, the purchaser, within the time prescribed by statute, P. O. Effey, claiming to be the heir of Theodore, asked to be made a party, settingup that the trust deed was a forgery, and that Theodore was dead.

<p> Appeal from Jefferson District Court. </p> <p>The facts are stated in the opinion of the court.</p> <p>as to the duties of county judges concerning roads, cited the Code of 1851, §§ 514, 518, 569; as to the duties of supervisors, Code of 1851, § 582 ; as to the liability of road districts for damages, Laws of 1858, ch. 48, §§ 16, 17; as to the liability of supervisors, Laws of 1858, chap. 154, § 28, and § 902, Revision of 1860; as to the point that at common law the county would not be liable, Mower y. Leicester, 9 Mass., 248.</p> <p>L The law imposes upon the county the duty of building, supervising and the general care of bridges. Code of 1851, §§ 514, 517-29.</p> <p>II. Where the law imposes a duty or obligation it gives a remedy for injuries arising from its non-performance. 2 Chit. BL, 21 (3 Book, marg.), 23. Ang. & A. Corp., 214, chap. 8, § 8.</p> <p>III. The petition sets out a clear wrong or injury to plaintiffs, and one for which there should be a remedy against some one. There is none against the road district, White v. Road District, No. 1, 9 Iowa, 202; there is none against the road supervisor, because he was not notified in writing of the defect in the bridge. Laws of 1858, chap. 154, § 23; there is therefore no corporation or individual-liable unless it is the county.</p>

Action op Replevin. Judgment before the justice for the plaintiff, and the defendant appealed to the District Court The other facts necessary to an understanding of the points raised, are presented in the opinion of the court.

<p>1. Pleadings and evidence in replevin. Under the Code of 1851, evidence showing that the title of the 'plaintiff in an action of replevin, to the property in controversy, was acquired through a fraudulent sale, was inadmissible when no allegation of fraud was set out in the pleadings.</p> <p>2. Sale op personal property. After a complete sale of personal property, the rights of the vendee cannot be prejudiced by the acts of the vendor, when committed without the knowledge or consent of such vendee.</p>

<p> Appeal from Polk District Court. </p> <p>The facts are fully stated in the opinion of the court.</p>

The material facts are stated in the opinion of the court. 1. The common law doctrine that a deed absolute on its face can be shown to be, but a mortgage, is not applicable to our statute. Code, sec. 2217; McOrea v. Parmort, 16 Wend., 460 and 476; Morris v. Nixon, 1 How., 118. 2. The facts alleged and proved do not show that either of these deeds are mortgages. Davis v. Stevens, 3 Iowa, 158; The State of Iowa, ex rel.

Action of right, to recover certain real estate in Iowa county. Both parties claim under Linus Niles, deceased. It is admitted that he died without issue, and never was married.

<p> Appeal from Polh District Court. </p> <p>■ Action on a promissory note. The material facts are stated in the opinion of the court</p>

'Appeal from, Scott District Court The petition in this case alleges that on the 18th of October, 1854, the council of the city of Davenport passed an ordinance granting to plaintiff, for a consideration named, and for the convenience and benefit of said city, the right to erect and put in operation a Market House, on a certain parcel of real estate therein described; that by said ordinance plaintiff was given the right to rent, lease and hire the stalls, rooms, &c., in said…

The facts are fully stated in the opinion of the court. 1. A court of equity does not decree a specific performance as a matter of course, even of a valid contract, and it ■will never execute a hard or unconscionable bargain, or one tainted with fraud. 3 Barb., 50; Story Eq., 333. 2.

. This cause was before tbis court at tbe June term, 1861, and reversed on tbe ground that tbe court below erred in sustaining plaintiff’s demurrer to tbe first clause of defendant’s answer. Held: that a general demurrer to the whole declaration or answer must be overruled whenever either of the counts therein is good. Chambers v. Lathrop, Mor., 102 ; Coon v. Jones, 10 Iowa, 131; Jones v. Worich, Id., 29. II.

<p>1. Juror: interest: challenge. In the formation of a jury the challenges should alternate between the parties, the plaintiff having the first challenge. Revision of 1860, § 3036.</p> <p>2. Same : interest. "Where in an action against a city a juror stated that he was a taxpayer and resident of the city, but that he had no opinion as to the ease which would prevent his rendering a verdict according to the law and the evidence, it was held that the court did not err in sustaining a challenge for cause. Revision of 1860, § 3039.</p> <p>3. Pleading over. A further answer upon which issue was joined and trial had, which presented the same defense set out in the counts of the original answer, to which a demurrer was sustained, operates as a waiver of any error in the ruling of the court sustaining the demurrer.</p> <p>4. Constitution: construction: municipal indebtedness. Article 11, §3, of the Constitution of 1867, does not affect the validity of contracts entered into by municipal corporations before that instrument took effect.</p> <p>5. Nuisance : defense. A municipal corporation can not appropriate to its own use gas furnished by a company, and avoid payment therefor on the ground that the works at which it is manufactured are a nuisance, when such works have never been, in the proper manner, declared a nuisance.</p> <p>6. Contract. The inability of a municipal corporation to pay an indebtedness incurred under a contract made by competent authority, cannot defeat an aetion thereon; neither can the corporation annul suoh a contract by notifying the other party that it cannot and will not pay the indebtedness which will be incurred by its execution.</p> <p>7. Evidence: bills. In an action by a gas light company against a municipal corporation for the value of gas furnished under a contract for two months named, it was held, that the bills for gas furnished during the months immediately preceding under the same contract, approved by the council of the corporation, were admissible for the purpose of showing, first, the number of lamps lighted, and second, that the city recognized the validity of the contract under which it was furnished, and its liability to pay for the same</p> <p>8. Bill of exceptions. A general exception to the giving of each of “ the instructions embraced in the charge of the court” when the charge involves several propositions of law, any one of which is not erroneous, presents no question for review on appeal. The same rule applies to a general exception by one party to the giving of instructions asked by the other; but when instructions are asked and refused, and suoh refusal is noted on the margin of each instruction, a general exception presents a question for review upon each instruction so refused, jEyser v. Weisgerter, 2 Iowa, 463 ; cited and explained.</p> <p>9. Contract: public posts. The phrase “public posts” in a contract for the lighting of a city with gas, includes posts erected and used for the benefit of the public, and is not restricted to those owned by the city.</p>

Appeal from Clinton District Court The facts are stated in the opinion of the court. contended that a revivor of the judgment also operated as a revivor of the lien. 2 Bour. Law Diet., “Revive;” “Scire Facias.;” 1 Tenn., 388; 7 Term., 54; Dickerson v. Allison, 10 Georgia, 537; 3 Bac. Abr., Execution, H; Clippinger v. Miller, 1 Pen. & W., 61; Trevor v. EUenberger, 2 Id., 94; Penn v. Hamilton, 2 Watts, 53; Ehright v. The Bank, 1 Id., 399; 3 Bac. Abr., 407; Knight v.

Bill to cancel a conveyance made for tbe purpose of defrauding creditors. Tbe court submitted tbe following special issues to a jury: ^ 1. Did tbe defendant, E. O. Yandal, make tbe conveyance in question to tbe other defendant, Isaac Eouch, for tbe purpose of and witb tbe intent of avoiding tbe payment of plaintiff’s claim, and to prevent a collection of tbe same ? 2.

<p> Appeal from, Dubuque District Gouri. </p> <p>The facts are sufficiently presented in the opinion of' the court.</p>

Plaintiffs shipped the goods in controversy from St. Louis, by the way of the Hannibal and St. Joseph Railroad, as they claim, under a contract with the railroad company to take them at the place of shipment and deliver them at their destination, Council Bluffs, Iowa. At St. Joseph, the goods were placed on board the steamer Dacotah, for carriage to their destination.

, at the Bank of Langworthy & Bros.,, in Dubuque. The payees indorsed it in blank, and delivered it to the plaintiffs. Before maturity, it was sent to the bank for collection. Prom the testimony, it appears that one of the defendants had funds on deposit with the bank, and drew his check, payable in currency, for the amount of the note, and handed the same to the bank officers.

<p>1. Trustee : refusal of trustee to act. A trust will not fail because a trustee refuses to act; neither will the beneficiary, in a court of equity, lose his interest in an estate by the disclaimer or refusal of the trustees to accept the trust.</p> <p>2. Record of mortgage. In an index entry of a mortgage filed for record, the words “ see record " were written in the column in which the description of the lands should have been set out, instead of such description: Meld, that it was sufficient to charge a subsequent incumbrancer with notice, following Oolvin Y. Bowman a/nd Neal, 10 Iowa, 529; Bostwiclc V. Powers, 12 Id., 456.</p> <p>3. Mortgage : assignment: merger. The acquisition of the absolute title to real estate by a mortgagee of the same, after an assignment and transfer of the mortgage to a third person, does not operate to merge the mortgage.</p> <p>4. School fund mortgage : assignment. Where the first incumbrance on a parcel of real estate was a mortgage to the school fund commissioner to secure the repayment of a portion of the school fund, loaned nominally to the mortgagor, but in fact to ono of the sureties, who on the same day became a second mortgagee of the same premises, and subsequently, and after the assignment of his mortgage to a third party, acquired the absolute title: and after a third incumbrance was placed upon the property by the grantee of tho first mortgagor (who was the second mortgagee) the • assignee of the second mortgage paid to the school fund commissioner the amount due upon the first mortgage, whereupon it was assigned to him by said commissioner, (without recourse;) it was held, that a court of equity would not treat this payment as a satisfaction of the mortgage, but would compel the third incumbrancer to refund the amount thus paid by such assignee for the redemption of the property.</p> <p>5. Redemption by junior incumbrancer. Where the prayer of a petition filed by a junior incumbrancer prayed for leave to redeem the incumbered property from the lien of the senior mortgage, it was held that a decree ordering a sale of the property by a commissioner, and a further decree confirming the sale made by such commissioner to the junior incumbrancer, for a sum less than the amount of the mortgage debt, and ordering, that upon payment to the senior mortgagee of the sum bid for the property at the sale, the satisfaction of the senior mortgage should be entered upon the proper record, were erroneous.</p> <p>6. Appeal. Iu an action by a junior incumbrancer against a senior mortgagee, in which two decrees are rendered, the respondent may appeal from the second decree notwithstanding a year has expired since the first one was rendered upon default for want of an answer.</p> <p>7. Execution op decree. In a proper case a court of equity may issue a proper process to enforce the execution of a decree ordering the surrender of lands.</p>

<p> Appeal from Marion District Court. </p> <p>The facts are stated in the opinion of the court.</p>

<p> Appeal from Louisa District Court. </p> <p>in bis argument,, upon the sufficiency of the indictment, cited Hartman y. The Commomoealth, 5 Barr (Pa.), 66; Hawk. P. C. B., 2, eh. 25, § 60; Commomoealth v. Eastman, 1 Cush., 189; 1 L. Cr. C., 5^54, and notes on 294; The Commonwealth y. Hunt, 4 Met., Ill; The People v. Lambert, 9 Cow., 578.</p> <p>upon tbe same point, cited The State y. Buchanan, 5 Harris & John., 829; The State y. Rowley, 12 Conn.; The State v. Burnhame, 15 N. H., 396; Commonwealth v. Mifflin, 5 Watts & S., 461; Commomoealth y. Warren, 6 Mass., 73; Commonwealth y. Davis, 9 Id., 416; The People y. Richards and Patton, 1 Mich., 217; Twitchell & Norton y. The Commonwealth, 9 Barr.</p>

In March, 1858, Carey executed a mortgage to Poor, to secure $157.50 in six months, and $540 in two years, from date. In April, 1859, the mortgagee assigned $150, “ being part of the last payment,’’ to Gorgas, and in May, 1860, assigned the mortgage, and all rights under the same, to complainant.

<p>1. Levy of execution upon personal property. In equity a judgment creditor will be compelled to exhaust the personal property of a judgment debtor before resorting to real estate purchased by a third person, of such debtor, in good faith and for a valuable consideration, before such judgment was rendered, but which by reason of a mistake in descriptions was not conveyed at the time the lien attached.</p> <p>2. Copartnership : joint and several property. A court of equity will not enjoin the sale of individual property of a copartner to satisfy a judg- ' ment against the firm of which he is a member, upon the ground that it has not been made liable by scire facias, when it is not alleged that the judgment was against the firm, and not against the individual members thereof; or when no issue is presented negativing the fact that the property has been made liable by such process. Quere. Does the right to ' object to the levy of an execution on this ground extend to one claiming under the debtor ?</p> <p>3. Bill and answer. When the allegations of a bill are explicitly denied in the answer and the cause is submitted without proof to sustain tbe affirmative allegations of the bill, the chancellor must find against the complainant</p> <p>4. Waiver of default. A default is waived by the filing of an answer, without leave of court, if the adverse party fails to object to such filing and joins issue upon the allegations thereof, and submits such issue, upon the pleadings, to the court.</p> <p>6. Judgment lien subject to equitable interest. The lien of a judgment creditor upon the land of his debtor is subject to all the equities which exist in favor of third persons against such lands at the. time of the recovery.</p> <p>1. Evidence: answer. The answer of one defendant cannot he read in evidence against his eo-defendant when there is no joinder or privity of interest, or fraud, or collusion, or combination between them.</p>

Action on account. The facts necessary to an understanding of the question determined, appear in the opinion of the court.

Appeal from Boone District Court, Bill to foreclose a mortgage. The facts are stated in the opinion of the court. relied upon Code of 1851, § 1742; Dunsmore v. Mliott, 1 Iowa, 599; Young v. Mum-ma, 3 Id., 140; Teagarden v. Balter, 9 Id., 272; Burlington and Missouri River Railroad Company v. Marchand, 5 Iowa, 468; Buckhart v. Sappington, 1 G. Greene, 66.

<p> Appeal from Muscatine District Court. </p> <p>The facts are stated in the opinion of the court.</p>

<p> Appeal from Polk District Court. </p> <p>Action on account. The facts appear in the opinion of the court.</p>

Action on a promissory note, of which the following is a copy: “ $1,000. “ Dubuque, Iowa, Dec. 7, 1855. “ Six months after date, we or either of us promise to pay to Charlotte Corielle, or order, one thousand dollars, with interest at the rate of • ten per cent, per annum, for value received. “Jerome Allen. “Lincoln Clark.” The remaining facts necessary to an understanding of the questions presented by the record, are stated in the opinion of the court. relied upon Kelley v.…

It is alleged that Potter, Hitchcock & Co., recovered a judgment against plaintiff, before Matthews, a justice of the peace; that an execution was issued by Tyrrell, the successor of said Matthews, which was placed in the hands of said Goddard, and by him levied upon a mare, the property of said plaintiff; that the constable abused said property, and neglected to .take the proper care of her, whereby she died, &c. An answer was filed, admitting the judgment, execution and…

<p> Appeal from Louisa District Court. </p> <p>The facts are stated in the opinion of tbe court.</p> <p>cited 1 Hill. Mort., 468; 2 Id., 165, note; Berger v. Sister, 6 Whart., 210; Kimmel v. Williard, 7 Doug., 217.</p>

<p> Appeal from Pollc District Oouri. </p> <p>Foreclosure oe a mortgage. The petition alleged that one James O. Carson, on the 20th day of June, 1856, executed the mortgage set out as an exhibit thereto, for the purpose of securing the payment of two certain promissory notes; that on the 1st of October, 1856, Carson sold the land described in the mortgage, subject thereto, to Francis E. West; and that Francis E. West sold the same premises, subject to the mortgage, to the defendant John J. Monell.</p> <p>The defendant indorsed on the back of the original notice, the following:</p> <p>“I, John J. Monell, the within named defendant, do hereby waive service of notice, at Newburgh, county of Orange, State of New York, this 27th day of March, 1861.</p> <p>“John J. Monell.”</p> <p>The defendant made default, and the court found that there was due the plaintiff the sum of three thousand, three hundred and thirty-three dollars and thirty-three cents, and decree that “the plaintiff have judgment for ‘that sum;’ that the defendant’s equity of redemption in and to the ‘mortgaged property’ be forever barred and foreclosed ; and that a special execution issue commanding the sheriff of Polk County to sell the above described real estate, for the purpose of satisfying the above decree,” &c. The defendant appeals.</p> <p>I. That the service of notice did not give the court jurisdiction. 2. That judgment could not be rendered against Monell on a note executed by Carson. 3. That no decree could be entered without making Carson a party defendant.</p> <p>1. That the waiver of service of notice was equivalent to an acknowledgment of service. 2. That the decree affects appellant only as it bars his equity of redemption. 3. That the mortgagor, after a sale of the mortgaged premises, is not a necessary party to a foreclosure proceedingi Murray y. Catlett, 4 G. Greene, 108; and the authorities there cited; Miller et al. y. Tipton et al., 6 Blackf., 238; Comley and Wife y. Hendricks, 8 Id., 189; 15 Ind., 185.</p>

<p> Appeal from Henry District Court. </p> <p>The facts are sufficiently stated in the opinion of the court.</p>

The bill in this case avers, that one John Zehring was the owner in fee of the southeast quarter of northwest quarter, section 3, Tp. 83, E. 15; that he sold the same to one Staley, but by mistake described it in the deed as the southwest quarter of the northwest quarter; that Staley sold to Boring, who sold to complainant, each deed containing the same mis-description; that one Pox-worthy obtained a judgment against Zehring; that an execution issued, and thereunder the…

; While this cause was pending before the justice, the .-.deposition of one Pehr was taken by defendant, and used .on the trial without objection. On appeal, the justice ■ returned the deposition with his transcript and the other ; papers in the cause. Plaintiff then, for the first time, moved to suppress the deposition, which motion was sus- : tained. Defendant appeals, and assigns this ruling as error.

This action was commenced by attachment before a justice of the peace, of the township of East Waterloo, in Blackhawk county, and property attached, and defendant served with notice, in the township of Mount Vernon, in the same county, the latter being the township of his residence. On a writ of error, the District Court ruled that the justice had no jurisdiction, from which ruling plaintiff appeals.

This action was commenced before a justice of tbe peace upon tbe following instrument: “ Chicago, May 13, 1861. “ Hoffman & G-elpcke : “ Pay to Eobert Maxwell or order, Fifty-four & Dollars. Culver & Co.” Indorsed, “Eobert Maxwell.” Tbe drawers and payees were made defendants, but answered not.

<p>1. Construction on contracts. All parts of a contract are to be weighed and considered in giving it a construction. The court in construing a contract should arrive at the intention of the parties by looking at the language employed, the purpose in view, and all the circumstances attending the contract.</p> <p>2. Construction on bond nor conveyance on read estate. A bond for the conveyance of real estate stated the terms and conditions substantially as follows: 1. That the vendees had made the vendor certain notes, for different sums and maturing at different dates, all bearing ten per cent interest; that accruing on two of them to be paid annually in advance. 2. That they had paid him the sum of $164, the receipt of which is acknowledged. 3. Tendees were to pay all taxes and charges that might accrue against the lots. 4. The vendor undertook, if the said notes and interest thereon should be paid on or before the time they may respectively mature, and if all the taxes should be paid, whenever called upon afterwards to convey, by deed of general warranty, the property described; but if the said notes and interest and taxes accruing were not paid, then the contract was to be void, and the vendor reserved the right to re-enter upon said premises. 5. “ And I do further agree, upon payment to me of two thousand dollars to make a deed to lot number three (3) and upon' payment of five hundred dolíais for each lot I agree to make a deed to either or any of lots one, two, four and five, (1, 2, 4 and 5,) and upon tho payment of $290.01, for each lot, I agree to make a deed of either or any of the remaining lots above described to” said grantees “ or their assigns and at their own expense." It was held:</p> <p>1. That after the payment of any of the sums named in the last clause or stipulation of the contract, the vendees or their assignees might elect to take the proper specific lot or lote; and that after such election and notice thereof to the vendor he would be bound to convey; but that he would not be in default by mere payment without an election and notice.</p> <p>2. That the sum paid when the contract was entered into should be estimated with those afterward paid in determining whether any one of the several amounts upon the payment of which the vendee was entitled to a conveyance, had actually been paid.</p> <p>3. That the vendee having paid in the aggregate more than the sum of $2,000, but having failed to notify the vendor of his election to take a conveyance of lot three (3) before suit brought, was entitled to a conveyance upon the payment of the costs, and the taxes and charges thereon.</p>

The facts are stated in the opinion of the court. David Borer for the appellant, contended that though complainant’s mortgage was executed before the one under which respondents claim, yet it is not entitled to priority, for it is not alleged in the petition, or any where proved, to have been on record, or within the knowledge of the respondents, or those under whom- they claim. The complainant avers, in his replication, that it was recorded but does not state when.

<p> Appeal from Pollc District Court. </p> <p>The facts are stated in the opinion of the court.</p>

This was an action by tbe plaintiff as mortgagee of one Nicholas Yeitbs, against tbe defendant, Leonard, as sheriff of Scott county, for unlawfully taking, and for tbe conversion of certain personal property, of which plaintiff alleges he was the lawful owner and of which he was entitled to the possession. The plaintiff claims title by virtue of a chattel mortgage given to him on said property, dated the 11th day of November, 1857.

This case was before this court at tbe June Term, 1859. (8 Iowa, 150.) The bill was filed by Levi, in November, 1857, to dissolve and have settled a partnership formed between himself and the respondents, Karrick and Jones, in August, 1854. The partnership agreement was verbal, and the object was to work certain mining interests owned by the parties in mineral lots 264 and 265.

The facts are stated in the opinion of the court. I. No suit can be maintained against the representative of a deceased joint obligor, the other obligors being alive. This question is well settled at common law. 1 Chit. PL, 50; 1 Pars. Cont., 28, and the cases there cited. II. The court erred in entering up judgment against the defendant, as administrator.

The petition represents that in 1850, one John Martin was the owner and occupant of a certain claim on land belonging to the government of the United States, and situated in -the town 'of Kanesville, Pottawattamie county, Iowa; that Martin while in possession had large and valuable improvements thereon; that on the 10th day of July, '1850, he sold said claim to Franklin Hall, and conveyed the same to him by a quit-claim deed; tbat said grantee took full and peaceable…

Lot 482 in the city of Dubuque is subdivided into five portions. On the 17th of May, 1858, defendant being the owner of the “ South and South Middle Fifth,” (styled in the deed the south two-fifths), conveyed the same by a trust deed of that date to Woodruff, to secure a debt to one Ives. Such proceedings were had, under this deed, that afterwards, on the 30th of April, 1860, the premises were sold and conveyed by the trustee to plaintiff.

The defendant, upon the 6th day of December, 1856, issued a policy of insurance to the Odd Fellows’Hall Association, upon a building owned by them, in the City of Dubuque. The policy was to run for six years. The building was destroyed by fire in May, 1859.

Bill to set aside a sale made for the purpose of hindering, delaying and defrauding creditors. Decree for the plaintiff, and defendants appeals.

<p>1. Service op notice. A defendant cannot after he has by his own act, or the act of his attorney, recognized the validity of a service of notice upon his agent, object to the jurisdiction of the Court.</p> <p>2. Revision construed : opinions op the Supreme Court. The Revision of 1860, §§ 2636, 3546 and 3550, construed and explained.</p>

<p>1. Raieroad subscription by counties. The Legislature of the State of Iowa has no power to authorize counties to become, as corporations, stockholders in Railroad Companies; and has neyer.. attempted, by the provisions of § 114 of the Code of 1851, or otherwise, to confer such power; overruling Dubuque County v. The Dubuque and Pacific Paüroad . Company, 4 G. Greene, 1; and approving Stolces v. The County of Scott, 10 Iowa, 166.</p> <p>2. Same : Statutes construed. “ An act regulating interest on City and County bonds,” and “An act regulating the issue of county and corporate bonds,” both of which were enacted on the 25th day of January, 1855, regulated the exercise of a power which it was supposed had been already granted;' but neither of these can be construed as an original grant of power.</p> <p>3. Railroad corporation. A railroad corporation in this State is a voluntary association, self-organized under a general incorporation act, and is invested with the privileges and franchises which belong to other joint stock companies.</p> <p>4. Bill op rights. The bill of rights, in the Constitution of the State of Iowa, will uot be so construed as to exclude, impair or deny any rights not enumerated therein, and retained by the people.</p>

The facts are stated in the opinion of the court. A mistake in the return of a sheriff cannot affect the rights of a purchaser. Hopping v. Burnham, 2 Gr. Grreene, 39; Doe, ex dem. Wolf et al. v. Heath et al., 7 Blackf., 154. It is not irregular to sell lands in a body unless the defendant in execution is prejudiced thereby. Grwynne on Sheriffs, 327; Lessee of Stall v. Macalester, 9 Ohio, 19; Woods v. Monell, 1 John. Ch., 502; Kiser v. Buddiclc et al., 8 Blackf., 382.

<p> Appeal from Keokuk District Court. </p> <p>The material facts are stated in the opinion of the court</p>

' Action for moneys received by defendant as plaintiff’s agent. The facts necessary to an understanding of the questions raised on the record are stated in the opinion of the court. Judgment for plaintiff, and defendant appeals.

At the August Term, 1858, of the Polk District Court, in open court, the defendant filed his written confession of judgment in favor of plaintiffs, upon which a judgment was entered up in due form. The confession complies with the law in every respect, except that it fails to state concisely the facts out of which the indebtedness arose, merely reciting that the indebtedness was shown by a promissory note, copied and exhibited therewith.

<p> Appeal from Des Moines District Court. </p> <p>The facts are stated in the opinion of the court.</p>

Appeal from, Chicfcasaw District Court A statement of facts agreed upon between the parties, is set out in the opinion of the court.

<p> Appeal from Dubuque City Court. </p> <p>The facts are stated in the opinion of the court.</p>

Motion to set aside a Sale. Hamsmith commenced his action against “ Thomas S. Espy, Charles Baker, and John Robinson, doing business as partners, in the name and style of Espy, Barker & Robinson,” upon a note made in the copartnership name. After judgment against “defendants,” the cause was brought into this court, and at the June Term, 1861, a judgment was rendered against them in their individual names, as well their sureties on the appeal bond.

Bill to foreclose a mortgage executed by Robert Denton to secure the payment of a certain promissory note payable to Miles K. Lewis, by whom it was assigned to plaintiff. The mortgaged premises, having been, subsequently to the execution of the mortgage, sold to Abby Denton, she was made a party defendant.

The defendant was accused of intoxication, was found guilty, and sentenced to pay a fine of ten dollars and be imprisoned for thirty days. The cause was appealed to the District Court, and the trial was attended with the same result. The further facts necessary to an understanding of the question raised are presented in the opinion of the court.

The fact-s are stated in the opinion of the court. as to the deception practised by D. P. W. Day, upon his wife, in procuring the execution of the deed of trust, 2 Phil. Ev., 272 (Cow. & Hill’s notes); 1 Story Eq. Jur., 224; 2 Kent’s Com., 482; notes a and b; Westfall et ux. v. Lee et al., 7 Iowa, 12; Corielle v. Hand, 2 Id., 552. As to defects in the execution of the deed, and the jealousy with which courts guard the rights of married women, Carry.

The executors of the estate of John Pierson, deceased, were required by the County Court of Des Moines county, to make a report and showing of the condition of the estate, and of the demands and assets in their hands. On the coming in of this report, exceptions were filed by certain of the heirs, and such proceedings were had that an order was made for their removal, and the appointment of an administrator, with the will annexed. This was on the 4th of January, A. D., 1862.

Action to recover the possession of real estate. The plaintiff alleged in his petition, that he was the owner in fee of the premises in controversy, upon which allegation issue was joined, and on the trial defendant offered to prove that a certain deed executed by him conveying the premises to plaintiff, and under which plaintiff claimed, was executed to secu're the payment of money loaned, and was intended by the parties to be a mortgage; that a bond for the reconveyance of…

On the 11th day of November, 1857, a deed of trust, purporting to be signed by E. Gr.

• Plaintiff obtained a judgment against defendant before a justice, and filed a transcript thereof in the office of the Clerk of the District Court. Execution issued thereon, which was levied upon certain real estate. This was sold, purchased by plaintiff, and a deed made by the sheriff. Some twenty months after the execution of the deed, Titus Neal, claiming to hold under the defendant in the execution, moved to set aside this sale. Motion sustained, and plaintiff appeals. ■

Defendant was indicted for causing and continuing a public nuisance; for that he did, on the 1st of January, A. D. 1860, and afterwards, in the County of Des Moines, establish, continue and use “ a certain building and place, in which he kept and sold intoxicating liquors, to wit: whiskey, &c., to the common nuisance, &c. A demurrer was interposed, upon the ground (as far as now insisted upon), that the indictment did not sufficiently describe or designate the place or…

The fourth clause of defendants’ answer is, in substance, as follows: “Defendants show that in the spring of 1855, plaintiff undertook and agreed with defendants to act as their agent, and to procure for them, and. in their name, a certain lease of a portion of Lot 12, Block 30, Des Moines,to wit: the one-sixth part of said lot, corner of Second Street and Court Avenue, which lease was held by W. W. Williamson, from one Israel Spencer.

• The facts are stated in the opinion of the-court. . . • • * The bill should be dismissed, for want of equity. The allegations do not show any contract to return the deed, nor any fraud on the part of'McCall, in obtaining possession of the same. The complainant without any contract from McCall to return the deed, or any fraud in obtaining it, delivers the same voluntarily to said McCall.' He 'expressly avers that he did so without knowing whát Was to be done with it.

Indictment for leasing a house for prostitution and lewdness. The jury returned a verdict of guilty, whereupon the defendant filed a motion in arrest of judgment, upon the ground that the court erred in giving, modifying and refusing instructions. The motion was overruled, and defendant appeals. for the State, relied upon Rev., 1860, § § 4813 and 4814; The Slate of Iowa v. Sand, 7 Iowa, 411; Harmon v. Chandler, 3 Iowa, 150; Farr v. Fuller, 8 Iowa, 347.

■ Appeal from Marion District Court. ■ The plaintiff sued the defendant in trespass, for seizing and conveying away certain personal property of which he claims to be the owner, and to be entitled to the possession thereof. The. defendant justifies the taking, by alleging that he levied upon the same as the property of Samuel Altheimer & Co., under certain writs of attachment issued by the creditor of said firm.

<p> Appeal from Lee District Court. </p> <p>The facts appear in the opinion of the court.</p>

Action to subject the property of the defendant to the satisfaction of a judgment, against the Dubuque Times Company, a corporation in which he was a stockholder. The defendant demurred to the petition for causes stated in the opinion of the court. The demurrer was sustained, and the plaintiff appeals.

This indictment contains two counts. The first accuses tbe defendant of tbe crime of willful trespass, by cutting down and destroying timber and wood on the land of another, for that be did on, &c., in tbe county of Polk, &c., unlawfully and willfully cut down and destroy timber and wood standing and growing on tbe land of one William C. Allen, to wit: tbe N. E. quarter, &c. Tbe second is like tbe first, except that tbe charge is for carrying away timber and wood, being upon…

A confession of judgment by one partner, in the name of the firm, without the consent of his copartners, is valid against the party making the confession. Crane v. French, 1 Wend., 812 ; McBride v. Hagen & Barrett, Id., 826; Green v. Beals, 8 Caines, 254. The judgment against Mudge was a complete bar to another suit against the firm.

Upon the 29th day of September, 1857, tbe parties defendant to this suit entered into an agreement with tbe plaintiff, in writing, as follows: “ Fourteen days after date, I agree to deliver unto O. D. Taylor and Nelson Libby, thirteen thimble-skeined two-horse wagons, also one one-horse wagon, and a one-horse top buggy, complete, for which said Taylor and Libby agree to give a bond for a deed of lot No. 5, in block 42, with a building thereon, in tbe city of Florence,…

<p>'X. Referee: acquiescence. The report of a referee should not be set aside on the ground that the reference was to but one person when it should have been to three, if it appears that no objection to such reference was made at the time, and that the party complaining appeared before the referee and submitted the cause on his part.</p> <p>2. Referee’s report. It is competent for the court to require a referee to state the facts found as the predicate for the final judgment; but in the absence of such requirement a general finding will be sufficient.</p>

<p>1. Mechanic's Lien. The purchaser of property on leased premises sold to enforce a mechanic’s lien against the lessee, acquires no greater rights than the lessee himself; and when such property can, by the contract of lease, be removed by the lessee only upon the performance of certain conditions, the removal before such performance, by a purchaser, will be enjoined.</p>

On the second day of October, 1856, the defendant, Brown, agreed to sell to the plaintiff one thousand aeres of land, situated in Gruthrie county of this State, “ On condition of said Shaw paying promptly, time being the essence of the contract, his two certain promissory notes, of even date with the contract, the.one in the sum of $916.66, due on the first day of January next, with ten per cent interest, and the other in the sum of $1,838.32, due in six months from date,…

The bill charges that Gower & Son, on the 20th of June, 1860, pretended to make a general assignment of all their property to Anson Hart, for the benefit of their creditors; that Hart accepted the trust, and is proceeding to execute the same; that, at the time of such assignment, petitioners were creditors of said Gower & Son, and have filed their claims with said assignee, within the time, and in the manner prescribed by the statutes of this State; that said Gower & Son had…

The facts are fully stated in the opinion of the court. as to the statute of limitations, cited Bowman v. Wathan, 1 How., 189; Ang. Lim., 190; Could v. Could, 3 Story O. O. R, 539; Ferson v. Sanger, 1 Wood. & Min. C. O. R., 138; as to the assignment of a right of action for a fraud, Brace v. Reed, 3 G. Greene, 422. as to the statute of limitations, cited Rev. of 1860, § 2741; 2 Story Eq. Jur., § 1521; Ferris v. Henderson, 12 Penn. St., 49; Raymond v. Simondson, 4 Blackf., 49.

<p>1. Transfer and assignment. When all the right, title and interest of the • payee of an acceptance against a judgment debtor is transferred to a garnishee before service of notice of garnishment, he is entitled to credit for the amount thereof on any debt due from him to the said debtor, though the assignment in ■writing was not executed until after such notice. Alitor when the parties had not completed the negotiation and transfer.</p>

<p>1. Inseructtons. When any part of the charge given by the Court to a jury is correct, a general exception to the whole charge presents no question for examination in the Supreme Court.</p> <p>2. Agency : sub-agent. When the employment of a sub-agent is necessary to the transaction of the business of the principal, if the agent makes a fit and suitable selection he is not responsible to the principal for his acts.</p> <p>3. Delegation of authokity. While the authority of a factor or an agent cannot be delegated, a principal may confer the power of delegation or substitution, either expressly or impliedly; or may after delegation by the agent, ratify or confirm the same in such manner as tomakethesub-agenc responsible directly to the principal; but the fact that the principal knows that a sub-agent or factor will be employed does not relieve the liability of the agent to the principal.</p>

<p>1. Correction or error. The Supreme Court will not review a ruling granting a default before a notice to set the same aside has been made in and overruled by the court below: following Pigmm v. Denny, 12 Iowa, 396, and McKinley v. Bechtel, 11 Iowa, 561.</p>

<p>1. Constitutional law: attorney’s eees. Section 4168 of the Revision of I860, which establishes the maximum of attorney’s fees for the defense of criminals, under appointment by the court, is not inconsistent with § 18, Art. 1 of the Constitution.</p>

<p>1. Sale of intoxicating liquors. A sale of intoxicating liquors made in another State for the purpose and with the intent to enable one of the parties to violate the law of this State for the suppression of intemperance is void. It is otherwise when not made for that purpose.</p> <p>2. Defense at law. A defendant in chancery will not be permitted to set up a defense, which he has neglected to interpose, and which he should have interposed, to an action at law involving the same subject-matter.</p>

<p> Appeal from Dubuque City Court. </p> <p>relied upon Rankin et al. v. Majors, 9 Iowa, 297 ; Grapengether v. Fejervary, ■ Id. 168.</p>

<p>1. Copartnership debts. The individual property of a partner can be subjected to tbe satisfaction of a judgment against the firm as such only by scire facias; it is otherwise when the judgment on a copartnership obligation is against the members of the firm as individuals.</p>

The facts are stated in the opinion of the court. The service upon the agent in this case is not sufficient, it does not relate to business growing out of an agency, and the defendant is not a copartnership or corporation. Chittenden v. Hobbs, 9 Iowa, 417; Grant v. Harlon, 11 Id., 429; Foley v. Connelly, 9 Id., 240; Carr v. Kapp, 3 Id., 80; Byington v. Crosthwait, 1 Id., 148.

On the 20th of February, 1856, Finley being the owner in fee of certain lots in Dubuque, leased the same to Smith, McKinlay & Poor, for ten years, with the privilege of renewal ; the rent payable quarterly.

Cole obtained a judgment against one Friedlander, and, under an execution issued thereon, garnisheed the defendant, Dealham. From the answer of the garnishee, it appears that he had certain property which he claimed had come into his hands as the assignee of Friedlander, under a general assignment. The assignment was not denied by plaintiff, but it was insisted that it was fraudulent and void. Upon tbis issue testimony was taken, and the cause submitted to the court.

On the 12th day of November, 1858, defendant leased from plaintiff a certain building known as a Female College “for a school of a high grade,” &c. By the terms of the lease it was provided that if the electors of the district at the election on the second Monday in March, A. D., 1859, determined by ballot to purchase said building for $12,500, the lease was to terminate and the sale to be made.

<p>1. Pleading- usury. Usury may be set up in an answer by allegations of facts showing that illegal interest has been contracted for, without being pleaded in express terms.</p> <p>2. Promissory note: indorsement. The indorsement of a promissory note after maturity carries with it all equities between the parties.</p>

<p> Appeal from Winneshiek District Court. </p>

<p>1. Record : evidence. The Supreme Court will not reverse a cause upon the ground that the verdict below was not sustained by the evidence when all the evidence is not presented in the record.</p> <p>2. Practice in garnishment. Under § 3270 of the Revision of 1860, if issue is not taken upon the answer of a garnishee at the same term at which it is filed, the garnishee is entitled to notice before further proceedings are had; but such notice is unnecessary where there is a voluntary appearance either in person or by attorney.</p>

The alterations of the note by Pelton, by adding the sum of $68, and changing the date without the knowledge or consent of appellant, not only rendered the note void, but completely extinguished the consideration for which it was given. Newell v. Mayberry, 3 Leigh, 250; Wheeloclc v. Freeman, 13 Pick., 165; Mills v. Starr, 2 Bailey, 359; Whitman v. Fry, 10 Miss., 348; Stevens v. Graham, 7 Serg. & Rawle, 505; TI.

<p>1. Record : mistake. When the Register in recording a mortgage, which conveyed two tracts of land, entered in the column for descriptions, in the index book, a description of but one of them, it was held:—</p> <p>1. That the record was not constructive notice to subsequent purchasers or incumbrancers as to the tract the description of which was omitted: following Scoles v. Wiltsey, 11 Iowa, 261.</p> <p>2. That the consequences of the omission of the Recorder to correctly describe the property conveyed fall upon the first mortgagee and not upon subsequent incumbrancers, following Bradford v. Miller et al., 12 Iowa, 14</p>

<p> Appeal from Winneshielc District Court. </p>

<p> Appeal from Dubuque City Court. </p> <p>For the facts see the opinion.</p>

This cause was before this court at the December term, 1859. A statement of the case is given by the court: see the opinion as reported in 10 Iowa, 258. Upon the reversal of the judgment, a procedendo issued, and when the cause was again docketed for trial, the defendant moved to discontinue; pending which motion an amended petition was filed. The motion to discontinue, as well as a motion to strike the amended petition from the files, were each overruled.

On the 25th of September, 1856, the complainant was seised in fee of the N. W. quarter of the N. E. quarter of section 9, township 98, range 7,' and occupied the same as a homestead, with his wife and children. On that day, he bought of one Dow, certain other re.al estate, and to secure the purchase money, made a mortgage upon the property so purchased, together with other land, including the said homestead. This mortgage was signed by complainant, but not by his wife.

<p> Appeal from Chickasaw District Court. </p> <p>The facts are stated in the opinion of the court.</p> <p>cited Smith’s L. C., ' 811; Haines v. De Witt, 11 N. H., 181; 3 Barb. S. O. R, 374.</p> <p>cited Grimsted v. Biggs, 4 Iowa, 559; Jones v. Ireland, Id., 63; Aulty. Fleming, 7 Id., 143.</p>

This action was brought upon a negotiable promissory note, made by the defendant to one Thomas' Smith, and by him transferred before maturity to the plaintiffs. The defendant claims a set-off of a balance of an account due from Smith at the time of the transfer of the note.