Volume 143 — Iowa Reports

<p>Appeal from Delaware District Court. — Hon. Franklin C. Platt, Judge.</p> <p>On1 July 10, 1897, A. W. Sheppard executed his promissory note to P. P. Curtis, who afterwards assigned it to Chas. Worley. The latter recovered judgment against said Sheppard for $956.12 in March, T905, and in June following caused execution to issue, and Johnson Sheppard and Fred Fife to be garnished. Fife answered that he was indebted to the judgment defendant in the sum of $25, and Johnson Sheppard answered that he was a brother of the judgment defendant, but owed him nothing ; that he had a mortgage' on three horses and a colt belonging to his brother executed August 13, 1904, to secure the payment of $500 a part of which was in settlement for rent, and the remainder loaned him; that he had sold the colt for $85 without indorsing that sum on the note, and the horses were worth $450; that he also had purchased of his brother a quarter section of land in Nebraska, without seeing it, for which he paid $800; that he knew of his brother and Cur.tis giving a note for a patent, and Curtis paying his brother’s half of it (for which the note to Curtis was executed), but was not aware of the last until after paying the money for the Nebraska land. On March 19, 1906, plaintiff controverted the answer of the garnishee by alleging that the chattel mortgage referred to was executed in fraud of the creditors of A. W. Sheppard, in which the garnishee participated, and also that the transfer of .the land was with like purpose; that both, transactions were without consideration, and judgment was prayed in an amount equal to the values of the property involved. On April 28, 1906, the garnishee made further answer that the court was without jurisdiction for that in the fall of 1905 A. W. Sheppard had been declared a bankrupt; that hearing for his discharge was set for March 31, 1906, and this plaintiff, whose claim on the said judgment had been allowed, objected to said discharge, and his objections are still pending, and further that said plaintiff had caused said bankrupt to appear before the referee in bankruptcy, and to be examined touching the concealment of the identical property herein mentioned, which had not been scheduled as a part of his assets, and said referee failed to find such concealment. The judgment defendant raised like questions by his answer, and pleaded such an action could only be prosecuted by the trustee in bankruptcy for the benefit of all creditors. By way of reply plaintiff admit,ted the facts so set up, but alleged that on June 12, 1905, execution issued on said judgment was levied on two of the horses mentioned, that Johnson Sheppard served notice on the sheriff of the existence of said mortgage, and on July 20th following said Sheppard gave the sheriff a receipt for said horses, promising to deliver them on demand, and that said levy and garnishment were more than four months .prior to the beginning of bankruptcy proceedings, but denied that the bankrupt had been examined before the referee touching the concealment of the property in controversy at plaintiff’s instance, or that there had been such investigation. Od. October 18, 1907, Chas. Worley as trustee in bankrupt filed a petition of intervention, reciting that A. W. Sheppard had been adjudged a bankrupt October 16, 1906, and averred that as such trustee he was entitled to all the property, save that on which plaintiff- had a lien-more than four months prior to said date, and made sufficient allegations of fraud with reference to the chattel mortgage and the Nebraska land, describing it, and that Johnson. Sheppard had money and property of the bankrupt of the value of $1,300 for which he asked judgment. November 16, 1907, Johnson Sheppard answered said petition of intervention by alleging that, at and prior to the levy of the execution, he was owner of the span of sorrel horses, and continued to be such owner; that since then he has sold the other for $160; that he purchased said horses and others in the fall of 1905 from the said bankrupt, giving in payment the note and chattel mortgage heretofore referred to, and that at the time of executing said mortgage said horses were exempt to the bankrupt as the head of a family. On hearing the petition and the petition of intervention were' dismissed. The plaintiff and intervener appeal.</p>

— Hon. Edmund Nichols, Judge. Action of replevin brought by plaintiff, claiming to be the owner of a team of horses, a set of harness, and a buggy, to recover possession thereof from the defendant, as sheriff, claiming to hold the same under levy of execution thereon as the property of one Tim Sullivan. Frank B. Wilson, the execution creditor, was made party defendant, and sought to sustain the validity of the levy.

<p>1. Exchange of lands: rescission: fraud: pleadings. The allegation in a petition to rescind an exchange of lands, that at the time of the exchange defendants land had been sold for taxes, to his knowledge, and that he concealed the fact from plaintiff, does not charge a fraud authorizing relief.</p> <p>2. Same: res adjudicata. The decree in a former action between the parties respecting their contract for an exchange of certain lands directing plaintiff to convey his land according to contract, upon conveyance by the defendant and the payment of an additional sum, is conclusive against a subsequent suit by plaintiff to rescind the executed contract, on the ground of defendants alleged fraud in concealing the fact that at the time of the exchange defendants land had been sold for taxes; as that question could have been litigated in the prior suit, the tax sale proceedings 'having been a matter of record and. plaintiff not having alleged that he was prevented from discovering the facts by any act of defendant.</p> <p>3. Same: laches. Although plaintiff otherwise may have been entitled to rescind, still, knowing of the tax sale in time his failure to redeem or offer 'to rescind prior to the issuance of a tax deed precluded his right to do so thereafter.</p> <p>4. Pleading: immaterial matter. The immaterial matters pleaded by way of an amendment should be stricken on motion.</p>

<p>1. Corporations: assessment of stockholders: equitable jurisdtction. A suit by the assignee of a corporation for the benefit of creditors, to ascertain and recover from each and all of the stockholders the proportionate amount of their subscriptions necessary to discharge corporate debts, and in effect involving an entire settlement and closing up of the .corporate business, is triable in equity.</p> <p>2. Same: subscription agreement: validity. A preliminary subscription agreement by which the subscribers agreed to give their notes for the amount opposite their names for a specified purpose, when made with a view to the formation of a corporation which was in fact thereafter organized on the strength of the agreement, is not void for uncertainty as to the payee and because no reference was contained therein to the formation of the corporation.</p> <p>3. Same: oral subscriptions to stock: estoppel. An oral subscription to stock may under some circumstances be enforced; as where a subscription agreement' with a view to the organization of a corporation, provided that a certain sum should be subscribed before it should become binding, but did not require that subscriptions should be in writing, the oral agreement of part of the subscribers to pay a balance of the total amount was a compliance with the terms of the original agreement, rendering the same enforceable; and where the corporation borrowed money on the strength of such subscriptions the oral subscribers were estopped to deny their liability.</p> <p>4. Same: acceptance of subscriptions. Where the officers of a corporation made use of oral subscriptions to stock as a basis of - procuring a loan, the proceeds of which was used in the corporate business, the stockholders were in no position to urge that such subscriptions were invalid for want of acceptance by the corporation, as acceptance if necessary will be implied from the conduct of the parties.</p>

<p>Garnishment: waiver of defenses. A garnishee who elects to base resistance to the garnishment solely on the ground of nonliability, and asks that the garnishment proceedings be stayed until his liability to the judgment debtor can be determined on appeal, obtains the delay and proceeds to prosecute the appeal, waives the defenses subsequently pleaded by way of amendment, that a judgment debtor can not be garnished under an execution, and that an execution issuing out of one court can not be served by garnishment of a judgment debtor under a judgment of another court.</p>

— Hon. K. E. Wilcockson, Judge. This is a proceeding wherein plaintiffs and some of the defendants seek to redeem from a sale on execution, to set aside a mortgage made by E. S. Knowlton to Sylvia II. Knowlton, his wife, upon the real estate sold at sheriff’s sale, and to subject the land or the proceeds thereof to the payment of judgments held by the appellants against Knowlton.

<p>Appeal from Poweshiek District Court. — IIon. II. E. Wilcockson, Judge.</p> <p>Action for damages resulted in. a judgment against defendant, from which he appeals.</p>

<p>Appeal from Bremer District Court. — Hon. J. P. Clyde, Judge.</p> <p>The defendant was convicted of the crime of adultery, and appeals.</p>

<p>1. Specific performance: false representations: knowledge of falsity: evidence. Where false representations as to the value of a-stock of merchandise were relied upon and induced the making of a contract to exchange land therefor, it is immaterial in an action for specific performance of the contract that the party making the representations did not know them to be false. In the instant case the stock of goods was represented to be of less value than the land to be exchanged therefor, which was a material consideration with defendants, and the evidence is held to show that the party making the representations knew them to be false.</p> <p>2. Contracts: identity of parties: fraud: rescission: specific performance. A party to a contract is entitled to know with whom he deals, unless he consents to deal with an agent in behalf of an undisclosed principal; and he may rely on the representations made as to the identity of the other party, and if deceived thereby may rescind the contract and defeat specific performance on that ground alone.</p> <p>3 Sales: contract to furnish invoices: waiver. Under a contract for the sale of a stock of goods at the invoice price, a good faith attempt by the buyer to make an invoice from the cost marks on the goods was not a waiver of failure to furnish the original invoices, where the invoice attempted to be made was not completed and the price thus ascertained finally accepted.</p> <p>4. Specific performance: sale of goods on invoices: failure to produce same. Specific performance of a contract for the sale of goods at their invoice price will not be decreed, where the seller fails to produce the invoices, or show the actual cost otherwise than by the cost marks on the goods not shown to represent the original cost.</p> <p>5. Sales: rescission of contract. Assuming that the cost marks on the goods were the same as the invoice price at which the buyer agreed to take them, the sellers attempt to invoice them at a higher price was a breach of the contract which entitled the buyer to a rescission; and having declared a rescission an assent thereto by the buyer was unnecessary.</p> <p>6. Specific performance. Specific performance is not a matter of strict right but is an extraordinary remedy and should only be awarded when the contract is conscionable and equitable.</p>

— Hon. K. E. Willcockson, Judge. This is a proceeding to correct the record and praying for general equitable relief. There was a decree dismissing the petition. Plaintiff’s appeal.

<p>1. Intoxicating liquors: damages: evidence. The evidence in this action, brought on behalf of minors for injury to their support by the giving of liquor to their father causing his death, is held to support a finding that defendants gave deceased sufficient alcohol to produce his death.</p> <p>2. Same: joint liability of husband and wife: judgment: motion in arrest. Where a husband and wife are joined as defendants the question of their joint liability can not first be raised by a motion in arrest of judgment; it should be presented to the court either by the pleadings or one of the several proper methods during the trial.</p> <p>3. Evidence: life expectancy: tables. Life tables while not conclusive are admissible on the question of the life expectancy of a deceased, although he may have been addicted to the use of intoxicating liquors; and should be considered in connection with the evidence of his physical condition, his vocation and habits in determining his probable length of life.</p> <p>4. Expectancy of life: instruction. On the question of damages to be allowed decedent’s minor children because of their father’s death, the result of excessive use of liquor furnished by defendants, an instruction to. consider the physical condition, habits, ability of decedent to furnish them support and the probable duration of such support, reducing the amount, if any, to its present value was sufficient, in the absence of a request for a more specific instruction in relation to the expectancy of the life of decedent.</p> <p>5. Intoxicating liquors: civil action : exemplary damages. A guardian of minor children who have been injured in their support by the act of another in furnishing the parent intoxicating liquor, is entitled under the statute to exemplary damages, the jury being authorized to exercise its discretion in the matter merely as to the amount.</p> <p>6. Evidence: hypothetical questions: instructions. An instruction directing the jury to determine whether the facts stated in a hypothetical question were substantially as proven, and if not substantially proven as stated the answer of the witness to be given no consideration, is held not to have been misleading because of the use of the word “substantially.”</p>

— Hon. W. H. McHenry, Judge. Plaintiee brought an action against the Century Savings Bank to recover possession of his cancelled note, together with the uncollected collateral which had been deposited with the note. There was a judgment dismissing the petition, and the plaintiff appeals.

— Hon. J. P. Clyde, Judge. Action at law upon a policy of fire insurance. The case was tried to the court, a jury being waived, resulting in a judgment for plaintiff, and defendant appeals.

— Non. James A. Howe, Judge. Action in. equity to set aside certain conveyances, and to quiet title to real estate. Decree denying equitable relief, but giving plaintiff a money judgment against the defendants Carter and Rumbaugb, wbo appeal.

<p>Divorce: liability of husband for wife’s attorney fees. An attorney for a wife in a divorce suit can not, upon a dismissal of the action without his consent, maintain an action against the husband for • his services, although the wife may have good cause for divorce.</p>

— Hon. James A. Howe, Judge. Action in equity for specific performance. Decree for defendant Tamor Slack, and the plaintiff and the Iowa Collection & Trust Company appeal.

<p>1. Agency: attorney in fact: power-to sell: extension of authority by parol. Under a power of attorney delegating the power to convey, the attorney in fact can only sell for cash, unless specifically authorized; nor can he convey the property by way of a gift: and conversatioris between the attorney in fact and his grantee, or between the latter and the attorney who drew the power, are inadmissible to vary its terms by extending the authority granted.</p> <p>2. Samé: unauthorized act of attorney: ratification: evidence. Knowledge of an agent’s unauthorized act is essential to a ratification, and it must be brought home to the principal having at the time a mind capable of exercising a deliberate judgment concerning the transaction. In the instant case the evidence is held to show that the principal was unable, by reason of severe illness and the administration of narcotics, to give an intelligent assent to the unauthorized sale and transfer of her land by an attorney in. fact, so as to amount to a ratification.</p>

W. H. McHenry, Judge. Suit to recover damages for a breach of promise of marriage. There was a verdict and judgment for the plaintiff. .The defendant appeals.

<p>1. Mines and mining: injury to employee: contributory negligence: assumption of risk: evidence. In this action for the death of an experienced coal miner while attempting to cross the cage or elevator at the bottom of the shaft, and who was killed by a sudden starting of the cage, the evidence is reviewed and held to show that his knowledge of the conditions and operation of the cage was such that he was guilty, of contributory negligence, and that he assumed the risk in attempting' to use the cage as a passage way in the absence of the eager.</p> <p>2. Same: custom: evidence. Evidence of the use of the cage as a passageway when the eager was in charge, and after ascertaining that it had not been signaled to go up, was inadmissible in proof that such use as deceased attempted to make of the cage was customary.</p> <p>3. Same. Where an employee has been expressly directed not to put himself in a place of danger he can not avoid the charge of negligence .arising from disobedience of the order by proof of a custom: nor can he excuse an act which is negligent per se by proof of a custom on the part of others.</p>

— Hon. E. W. EiohelBERGER, Judge. Mary Miller, as widow of Isaac Miller, deceased, presented to the court in which the settlement of the estate was pending an application for allowance for support for one year, alleging that she was left without money or property to support her during the year for administration of the estate.

<p>1. Sales: inconsistent defenses. A defendant is permitted under the statute to plead inconsistent defenses and to rely on whichever defense the evidence tends to establish; as where action was brought for the balance of the purchase price of a carload of fruit, defendant was entitled to plead a rescission of the sale and subsequent acceptance and resale by agreement with plaintiff, and also to plead a breach of the warranty and ask that damages be allowed him by way of setoff against the amount due.</p> <p>Sale: breach of warranty: damages. The buyer in case of an ac-’ 2 cepted sale may accept the goods, though they do not comply with the warranty, and recover damages for the breach.</p> <p>Same: evidence. In the instant case defendant purchased a carload of 3 fruit for resale under a warranty as to soundness, the fruit did not comply with the warranty, and he is held entitled to recover for the breach the difference between the value of the fruit had it been as warranted and its actual value as delivered; and the price at which defendant was able to dispose of the same in the exercise of reasonable effort was competent evidence on the question of value.</p>

<p>1. Personal injury: damages: amount of verdict. In a suit by the husband for personal injury to himself, medical care and nursing of himself and wife and loss of the society and services of his wife, the result of her injury by the same accident, in which it appeared that he had expended $400 for medical care and' nursing, that plaintiff suffered injury about the neck resulting in a persistent swelling and much headache, that his wife was under a physician’s care for many months and suffered greatly from the nervous shock, a verdict for $1,000 was not excessive.</p> <p>2 Examination of witnesses: discretion of court. The court is clothed with some discretion as to the form of questions in the examination of witnesses, and as to the scope of cross-examination; and where the plaintiff in a personal injury action was asked on cross-examination whether his wife had sued defendant in her own right for injuries received in the same accident, it was within the discretion of the court to permit or refuse the question.</p>

<p>Appeal from Scott District Court. — Hon. J. W. Bollinger, Judge.</p> <p>Action to recover damages for .personal injury. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Covenants of warranty: breach: relocation of boundary: evidence. Plaintiff purchased a certain lot on one line of which was a brick wall, and contends in this action for a breach of warranty and damages, for the alleged reason that said wall is not upon the lot line, but extends over and upon his ground, thus creating an. incumbrance in violation of the covenants of his deed. The evidence consisting chiefly of the testimony of a surveyor who did not consult the original plats and monuments in making his measurements, but accepted as correct the street curbing and lot line as improved by various owners, is held insufficient to show that the location of the wall was not upon the true boundary as established by the original plat.</p> <p>2. Same: presumption as to location. Parties may as the result of litigation, though not relied upon as an adjudication, settle the fact that a wall is a party wall; and where this is the effect of the litigation it will be presumed that the wall is the true boundary between the premises, which presumption can not be overcome except by clear and satisfactory evidence establishing another line.</p> <p>3. Party wall: incumbrance: use of same: recovery of cost. A party wall extending onto an adjoining lot not more than nine inches is not an incumbrance; and one who has made use of such a wall without complaint can not recover the amount he was required to pay for its use.</p> <p>4. Same: intent as to title: boundary. The construction of a party wall is both indicative of intent to hold title to the center of the wall and, when erected without complaint of an adjoining owner, is presumptive evidence that it is on the true line.</p>

<p>1. New trial: evidence: review. An application for new trial after the term at which judgment was entered, based upon a denial of the original cause of action, casualty and misfortune preventing a defense, and fraud of the attorney in withdrawing defendants appearance and answer, is. triable by .ordinary proceedings; and where the evidence, though in material conflict, lends substantial support to the court’s ruling the appellate court will not interfere. In the instant case a denial of the application is upheld.</p> <p>2. Attorney and client: professional communications: waiver of privilege: public' policy. A client who has testified to transactions between himself and his counsel has waived his right to claim that the communications were in professional confidence, when the attorney is called upon by the other side to give his version of the transaction; and such waiver is in no sense contrary to public policy.</p> <p>3. New trial: ground therefor: sufficiency. That a judgment was procured through false testimony is not in itself ground for a new trial; and where the evidence in support of a petition for a new trial, after judgment of damages for selling liquor to a minor, supported a finding that such sales were made, thus entitling plaintiff to some damages, a new trial should not be granted simply because defendant’s attorney withdrew his appearance and answer, the presumption being that the damages awardéd were proper.</p>

— Hon. J. W. Bollinger, Judge. Action at law to recover damages for injuries received by plaintiff due to the collision of an engine which he was operating with one of defendant’s trains. Trial to a jury, verdict and judgment for plaintiff, and defendant appeals.

<p>1. Partnership: sale by one partner of his interest: firm debts: liability of partners. A partner by consenting to a sale of his copartners interest in firm property, and a substitution of the purchaser as a member of the partnership, neither assumes the debts of the old firm nor waives his right to have the indebtedness satisfied from the firm property; nor does the purchasing partner upon becoming a member of the firm assume its debts. And by discharging firm debts from firm property one partner does not incur any liability to his copartner or his grantee.</p> <p>2. Same. Partnership property is not owned by the partners individually, nor has either one an exclusive right to possession of any article or aliquot part thereof. The ownership and title are vested in the firm, so that the sale of an interest by one partner does not pass title to the property itself, but to a share therein after payment of the partnership debts.</p> <p>3. Same: deeds: deposit in escrow: equitable liens. The deposit of a deed intended as payment for one partner’s interest in the firm property,'to be held in escrow until the firm debts are paid, operates to hold delivery of the deed in abeyance; and in case of nonpayment of the debts practically the only remedy of the grantor is to withhold title to the land, as the deposit of the deed is not security for anything the grantor might be called upon to pay, or for anything that might be taken from the assets of the firm. In fact the depositing of title deeds does not create an equitable lien or mortgage.</p>

<p>1. Real property: exchange: incumbrance: breach of contract, Plaintiff and defendant entered into a contract of exchange of properties, in -which, it was agreed that defendant should assume certain incumbrances in stated amounts against each of the properties to be conveyed to him, but the nature of the same was not stated in the contract; he knew however that the incumbrance against one of the properties consisted of a mortgage, a judgment and unpaid taxes, but contended in his answer that it was orally represented by plaintiff that the same was in the form of mortgages. Held, that defendant’s contention for a breach of the contract by reason of the judgment was not sustained, and that it was immaterial that the same was a lien on more than one of the properties.</p> <p>2. Same: payment of interest on incumbrances. Under a contract for the exchange of property made in May, 1905, providing that plaintiff should pay interest annually on certain indebtedness the first of-November each year, he was not required to make' such payment within a year from the date of his contract, but his first payment was due November, 1906.</p> <p>3. Same: rescission of contract: election. Where one party to a contract for exchange of properties failed to perform, and declared a rescission in which the other acquiesced by his silence, such other party was entitled either to enforcement or rescission ‘ as he might elect.</p>

<p>Appeal from Hancock. District Court. — Hon. C. H. Kelley, Judge.</p> <p>Action on a promissory note resulted in judgment as prayed. The defendant appeals.</p>

<p>Appeal from Woodbury District Court. — Hon. Wm. Hutchinson, Judge.</p> <p>This is an action in equity to annul the marriage of the plaintiff with the defendant on the ground that at the time thereof the defendant had a husband living. This is an appeal from an order granting the defendant temporary suit money and alimony.</p>

— Hon. A. N. Hobson, Judge. Action at law upon, a benefit certificate issued by defendant company. Defendant pleaded that the assured committed suicide, and also that he warranted that none of his family had been insane, and falsely and fraudulently misstated the facts with reference thereto. Trial to a jury. Verdict and judgment for d^j^ant, and plaintiff appeals.

— Hon. D. D. Coyle, Judge. This is an action in equity upon a promissory note and to foreclose security. There was a cross-bill filed by the defendant, asking, for an accounting for collateral. The principal controversy in the case arises upon the trial of such cross-bill. There was a decree for the defendant. Plaintiff appeals.

<p>1. Highways: prescription. Mere use of a road by the owner and his tenants, in going to and from different parts of his farm for a period of five years, can not be made the basis of a claim by others to a highway by prescription.</p> <p>2. Same: easement: constructive notice: Bona fide purchaser. The owner of land conveyed the same to one of his children, reserving a way over it for himself and his heirs owning adjoining land. By agreement of the parties the deed was placed in escrow to be delivered upon the death of the grantor in case the grantee had complied with certain conditions. The grantee conveyed the land by warranty deed without a like reservation and not having complied with the conditions, and the grantee also procured a quitclaim deed from the original grantor. Held, that the grantee was not charged with constructive notice of the reservation in the original deed, that the same was not a necessary muniment of his title, but that he took the land under the quitclaim deed free from the easement.</p> <p>3. Deeds: deposit in escrow: conditions: failure op grantee to perform: effect. A deed executed and placed in escrow, under a contract that it shall not be delivered until the death of the grantor and the performance of certain conditions on the part of the grantee, the land to revert in case-the grantee failed to perform, does not pass the title at the time of its execution; and the only effect, of a conveyance by the grantee prior to performance is an assignment of the grantees’ rights under the contract.</p>

<p>Appeal from Scott District Court. — Hon. D. V. Jackson, Judge.</p> <p>Dependant was indicted for the crime of murder. Upon trial to a jury slie was convicted of murder in the first degree and sentenced to the penitentiary for life. She appeals.</p>

— Hon. N. W. Macy, Judge. Two cases were tried in the court below upon the same evidence. An appeal was taken in each case by the same appellant, and both appeals are presented here upon one record. Both cases involve the question of the right of appellant to cut a levee or embankment, which has been maintained for fifty years.. The levee in question constituted also the grade of a highway.

— Hon. N. W. Maoy, Judge. Under an indictment charging murder in the first degree, defendant was convicted of manslaughter, and sentenced to imprisonment in the penitentiary for eight years. From this conviction he appeals.

<p>Appeal from-Osceola District Court. — Hon. David Mould, Judge.</p> <p>Action to recover damages for assault and battery committed by tbe defendant upon the plaintiff, and also to recover damages for a like wrong committed by defendant upon one Louise Keller, whose cause of action was assigned to plaintiff. There was a verdict for the defendant, and from the judgment thereon, plaintiff appeals.—</p>

<p>1. Streets: dedication. The filing of a town plat in connection with a petition for incorporation of the town does not establish a dedication to the public of a street in an addition thereto.</p> <p>2. Same: abandonment. In this action to restrain defendants from opening a street, the evidence is held to show an abandonment of the same for more than twenty years.</p>

<p>Appeal from Grundy District Court. — Hon. C. S. Ransier, Judge.</p> <p>The defendants were indicted for burglary. From a judgment of conviction, they have appealed.</p>

— Hon. J. M. Parker, Judge. Action at law upon a bond given by defendant Pine, upon which his codefendants were sureties, to recover damages for injuries received by plaintiff from a gunshot wound at the hands of defendant Pine. To certain parts-of an answer filed by defendants, plaintiff demurred. His demurrer was overruled, and he appeals.

<p>1. Mortgage Foreclosure: taxation of attorneys fees: liability of purchaser for attorney fees: retaxation. The defendant in this action as executrix employed plaintiff to foreclose a mortgage belonging to the estate covering several notes, each of which provided for the taxation of attorney fees. The judgment included attorneys fees • taxed on' the basis of the several notes considered as separate contracts. Defendant as. an individual purchased the property on foreclosure sale at a sum including the attorney fees so taxed, and at defendant’s request and to enable her to obtain a certificate of sale plaintiff receipted for the attorney fees before payment. Held, defendant was estopped from subsequently contending for an agreement with plaintiff to perform the service at a less fee than as so taxed, without first surrendering her rights under the sale; and that she was not entitled as an individual purchaser to go into the foreclosure case and have the decree modified accordingly.</p> <p>2. Attorney’s fees: taxation: motion to retax: conclusiveness. Where the question is as to the amount of attorney fees to be taxed, and not as to whether any fee shall be taxed, the remedy is a motion to retax the same; and the overruling of a motion for that purpose, from which no appeal was taken, is conclusive not only of all matters presented as grounds for the motion, but also of such as might properly have been pleaded.</p>

<p>Appeal from Webster. District Court. — Hon. W. D. Evans, Judge.</p> <p>The opinion states the nature of the case and the material facts.</p>

— Hon. Kobert Bonson, Judge. Action to enjoin the enforcement in Dubuque County of a judgment rendered by a justice of the peace in Kossuth County, transcript of the record of which, had been duly filed in the office of the clerk of the district court in that county, and on which the execution, enforcement of which in Dubuque County was sought to be enjoined, was issued.

— Hon. M. C. Matthews, Judge. Action in equity to enjoin defendants from keeping or maintaining certain premises described as a place for the sale of intoxicating liquors, and from unlawfully selling or keeping for sale such liquors on said premises. A temporary writ of injunction was asked, and on hearing the writ was denied.. From, the ruling denying a temporary injunction, the plaintiff appeals.

<p>Appeal from Cedar District Court. — Hon. W. N. Trieci-iler, Judge.</p> <p>Action at law for damages. .Verdict and judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Carroll District Court. — Kos. Z. A. Church, Judge.</p> <p>The defendant appeals from a conviction of assault with intent to commit manslaughter.</p>

<p>Appeal from Webster District Court. — Hon. C. G. Lee, Judge.</p> <p>Action on subscription to capital stock resulted in judgment as prayed. The defendant appeals.</p>

— Hon. M. P. Smith, Judge. This is an action brought by Agnes Lefebure, a minor, and by two administrators to establish the alleged title of 'the minor in certain one hundred acres of land. . There was a decree dismissing the petition, and plaintiffs appeal.

<p>1. Drainage: instruction : harmless error : words and phrases. In this action for damages .alleged to have resulted from the construction of an embankment by defendant, casting the surface water upon plaintiff’s land, the only evidence of the construction of an embankment located the same some distance from the boundary line between the farms of plaintiff and defendant, and therefore, a reference in the instructions of the court, to an embankment “along or on the line” was not prejudicial, even if an inaccurate description, as the jury could not have been misled. Besides the word “on” when used to indicate relative situation means at, near, or adjacent to, without 'implying contact or support.</p> <p>2. Drainage of surface water: instruction. As the evidence tended to show that defendant’s grantor had so furrowed his land, that it tended to drain the water into the ditch, and that plaintiff’s land had been so plowed near the line, that it had a tendency to direct the course of the water, an instruction that if the parties farmed their land near the ditch so as to drain the water into it, and this was the understanding of the parties, the plowing would be considered a part of the ditch, was not erroneous, because having no support in the evidence.</p> <p>3. Same: drains: duty to clean same. Where a ditch has been constructed by agreement of the parties and recognized as a waterway, neither party can be compelled to clear it of rubbish, although either has the right to do so. .</p> <p>4. Same: instruction: harmless error. An instruction that theowner of higher land cannot collect the surface water and discharge it onto lower adjoining land in a different manner than it naturally flowed, was' nót prejudicial, because ignoring the right of a land owner to drain his land into a natural depression running through the lower land and thus emptying it into, a defined water course, where there had been no attempt to thus discharge the water, except by means of a ditch constructed by agreement; and -the charge could have no bearing except on plaintiff’s right to open the ditch and thus allow the water to flow onto defendant’s land, and was so applied in a subsequent charge of the court.</p> <p>5. Same: In this action for damages, resulting from the construction of an embankment and the filling of a ditch running from plaintiff’s land onto that of defendant, the petition making no reference to the ditch, except that it had become filled up, and by the construction of an embankment, the water was caused to flow back onto plaintiff’s land, an instruction referring to the ditch as the main ditch, though misleading the jury into the belief that the ditch was a water course capable of carrying off all the water, was not prejudicial.</p> <p>6. Evidence: exclusion: subsequent showing of competency. Where plaintiff had testified that the embankment constructed by defendant along the ditch, was built after the injury of which plaintiff complains occurred, the evidence concerning the same was properly stricken; and the fact that the evidence was subsequently rendered competent by testimony, that the embankment was built prior to the injury, did not render the ruling erroneous, the plaintiff having made no request for reinstatement of the evidence.</p>

<p>Appeal from Clinton District Court.' — Hon. A. P. Barker, Judge.</p> <p>Action to recover damages to the estate of plaintiff’s intestate resulting from injuries causing his death,' alleged to have been due to the negligence of the defendant. There was a verdict for plaintiff, and defendant appeals.</p>

— Hon. R. P. Howell, Judge. Appeal from certain orders of the district court sitting as a court of probate in the matter of the estates of A. R. Livingston and Cynthia Metcalf, each deceased. Thomas R. Metcalf, administrator of the two estates, appeals.

— Hon. F. O. Platt, Judge. This is an action to recover on a rent note for $180. Defendants pleaded a counterclaim for board and labor and for use of property and for damages, amounting to several hundred dollars. Hpon trial to a jury there was an allowance on the counterclaim to the amount of $34, and a general verdict for the plaintiff for $146 and some cents. The defendants appeal.

<p>1. Exemptions: purchase of property with pension money: evidence. Title to the homestead may be held by the wife in trust for her husband, and where such is the case and the property was purchased with pension money belonging to him, the proceeds arising from a sale thereof are exempt to him as against the claims of his creditors; but in the instant case the evidence is held to support a finding, that although the property was acquired with pension money, the husband, gave it to his wife, and that upon her death he acquired title by electing to take his distributive share therein and by a deed to the remaining interest,, and the proceeds were, therefore, not exempt to him.</p> <p>2. Costs: collection: fee-bill execution. The party in whose favor a judgment for costs has been entered, is not required to pay all the costs before he can have a fee-bill execution issued; but he is entitled to its issuance for such costs as are due him, and it is the duty of the clerk to include all costs.</p>

— Hon. H. M. Towner, • Judge. A suit to recover damages for personal injuries. There was a trial to a jury and a verdict and judgment for the plaintiff for $15,000. The defendant appeals.

— Hon. Z. A. Church, ' Judge. Suit to enjoin tbe defendant from violating tbe terms of a partnership agreement resulted in a decree as prayed. Tbe defendant appeals.

<p>1. Sale of real estate on commission: agency: fraud. Where the relation of agency does not exist between a real estate dealer and his customer, but his compensation is to come from the owner of the property in case a sale is effected, he may, upon ascertaining that his customer is likely to desire a certain property, procure from the owner an agency for its sale at an agreed commission, and is not bound to disclose the fact that he then had a possible purchaser; and his failure to do so can not be made the basis of a charge of fraud in defense to an action for the commission, upon concluding a sale to such customer.</p> <p>2. Same: commission: recovery of. The mere fact that a real estate dealer used no persuasion to induce a customer to purchase, will not preclude his recovery from the owner of the commission agreed to be paid for effecting a sale.</p> <p>3. Same: evidence. For the purpose of determining whether a broker effected or materially influenced a sale, all the facts and circumstances bearing upon the prevailing cause of the sale, the course of conduct of the purchaser and his purpose with reference to his several acts may be shown; and on this question the purchaser as a witness may state that he would not have purchased the property, except for his talk with the broker.</p> <p>4. Same: evidence of intent. Where material, the intent with which a witness did certain acts may be shown, though not conclusive on the subject, as against inferences to be drawn from his conduct and actions, and the circumstances tending to give them color.</p> <p>5. Contract for sale of land: explanation by parol. Where the contract for the sale of a farm and other property, provided for a lump sum for the whole, with no reference to the price at which the farm was included, it was competent to show by parol the price placed upon the farm for the purpose of determining whether the agent was entitled to a commission for the sale of the farm..</p> <p>6. Exemplary damages: instruction: prejudice. Where the jury, in answer to special interrogatories, expressly negatived wrongful or malicious suing out of an attachment, there was no prejudice in the refusal of an instruction with reference to exemplary-damages.</p> <p>7. Special interrogatories: submission in connection with instructions. In the submission of special interrogatories, the court should not call attention to certain instructions, in connection therewith, which present most favorably to one of the parties, the law applicable thereto; but if the instructions are to be considered in connection with the special interrogatories, the court should indicate that all instructions on the subject should.be so considered.</p> <p>8. Instructions: confusion: prejudicial error. Where the jury expressly found in answer to special interrogatories, that an attachment was not wrongfully sued out, and returned a verdict for plaintiff in a specific sum, any error in the instructions as to how they should return the verdict, in view of the possible conclusions as to the validity of the respective claims of the parties, was without prejudice.</p>

— Hon. M. A. Roberts, Judge. Action to recover damages for personal injuries alleged to have resulted to the plaintiff from negligence of the defendant in maintaining a sidewalk in an unsafe condition. From a judgment on a verdict in plaintiff’s favor, the defendant appeals.

<p>Appeal from Greene District Court. — Hon. F. M. Powers, Judge.</p> <p>Appeal by the defendant from the allowance of a claim for personal services rendered the deceased in his lifetime.</p>

<p>1. Supplemental pleadings. Facts not material to any issue affecting the remedy are not appropriate to a supplemental pleading, under the provision of Code section 3641, relating to supplemental pleadings.</p> <p>2. Same: bonds: action upon: motion to strike: when conclusive. A motion to strike allegations involving a right of recovery is equivalent of a demurrer, and when sustained and the party fails to plead over the right to litigate matters involved therein on the same state of facts is effectually disposed of. As where, in a suit on a cashier’s bond, the plaintiff bank set out copies .of its minutes, alleging that the same were the acts of its trustees, which the court held to show that the bank had converted the cashiers tenure of office from one at pleasure to one for a fixed time, and on motion struck from the petition all claims for defalcations occurring subsequent to the expiration of such time, the bank could not, on affirmance of the ruling, by a substituted petition contend that the minutes of the trustees did not show a limitation of the cashier’s term, and that his bond was therefore liable for such items. And this is especially true, when a stay of proceedings was ordered, pending the appeal on an application representing that if the trial courts ruling was sustained, no trial of the issues of fact involved would be necessary.</p> <p>3. Pleadings: effect of motion to strike supplemental pleading. When a supplemental pleading is stricken from the files the former pleading is restored and continues effective, and an appeal from an order striking the same does not suspend the trial of the issues joined in the original pleadings.</p> <p>4. Judgments: affirmance by operation of law. Where the members of the court are equally divided on question, the judgment of the trial court is affirmed by operation of law.</p>

<p>Appeal from 8ac District Court.' — Hon. F. M. Powers, Judge.</p> <p>Appeal from an order committing the six children of . Mr. and Mrs. James T. East to the Iowa Children’s Home.</p>

<p>1. Evidence: expert testimony: admissibility. One who has handled and for years observed the habits and conduct of horses when frightened, is competent to testify as an expert on the subject; and where defendants liability turned on the question of the fright of plaintiff’s horse from his automobile, the evidence was admissible.</p> <p>2. Evidence: conclusion. Where the defendant, in an action for damages resulting from the fright of plaintiff’s horse at his automobile, had stated what occurred, his opinion as to whether there was anything in the appearance of the horse or position of plaintiff to indicate that he might lose control of the horse or was in danger of having trouble, was properly refused. And the question of whether defendant could have gotten further from plaintiff’s rig without going upon the street car track, was rightly refused, as from the proven measurements it was a simple matter of computation.</p> <p>3. Automobiles: operation: reasonable care: statutes. Sections 8 and g, chapter S3, Acts 30th General Assembly, simply define the duty of the operator of an automobile upon request or signal, they do not relieve him of the duty of exercising reasonable care for the safety of others upon the street; and the question of reasonable care, depends to some degree, upon the speed, size, appearance, manner of movement, etc., of the vehiele, as well as the means of locomotion of others on the highway.</p> <p>4. Same: reasonable care. Where the evidence tended to show that defendant’s car approached plaintiff from the rear, was within a few feet of his horse when passing and turned in front of him but a short distance ahead, and that a well broken horse is likely to be frightened under such circumstances unless some warning is given. Held, the question of whether defendant exercised reasonable caution in thus passing plaintiff’s horse, was for the jury.</p> <p>5. Same: negligence: instructions. To approach a team from the rear with an automobile running at an excessive rate of speed, and to pass within a few feet without giving any warning, may constitute negligence; so that nearness of the machine in passing and failure to give warning of its approach, are proper to be considered in connection with the speed of the car, in determining its negligent operation. And when the evidence was such that the jury might have found that defendant, upon passing without giving warning, turned the machine immediately in front of plaintiff’s horse, and plaintiff had testified that had warning been given he could have controlled his horse, the question of whether defendant was negligent in so doing, was properly submitted.</p> <p>6. Same. Where the evidence justified a finding, that after defendant had passed plaintiff, who had gained partial control of his frightened horse, and upon hearing its approach, stopped his car a short distance ahead of the horse, thus adding to its fright, the court was justified in calling the attention of the jury to this evidence and directing them to determine whether defendant was negligent in thus stopping the car, without specially defining in that connection the care required of defendant, the court having in other instructions correctly defined negligence.</p> <p>7. Same. Ordinarily, the operator of an automobile may stop his machine at any point in a street where he chooses, provided he does not unduly obstruct the street; but where the safety of property or person is involved in doing so, that course is exacted of him . which an ordinarily prudent person would exercise for their protection.</p> <p>8. Same. An instruction exacting of defendant, knowledge that a horse of ordinary disposition would become frightened from a passing automobile, under the circumstances disclosed by the evidence, was more favorable than required.</p> <p>9. Submission of issues: conflicting evidence. The testimony of wifg nesses, though not in harmony with either plaintiff or defendant, may present an issue for determination.</p> <p>10. Use of streets: negligence. The driver of a well broken horse may occupy any portion of a street he chooses, and he may rely on the exercise of ordinary care by those approaching him from the rear,; and in using a street frequented by automobiles, he only assumes the risk incident to their operation in a reasonably careful manner.</p>

— Hon. W. R. Green, Judge. Action at law to recover possession of a tract of land. Verdict and judgment for defendants, and plaintiff appeals.

<p>1. Public Lands: swamp: title. The legal title to swamp lands remains in the government until patent therefor has been issued, conveying it to the state.</p> <p>2. Same: non-navigable lakes. To constitute a non-navigable lake no particular depth of water, or that it cover the entire bed at all seasons, is essential; it is sufficient if there are well-defined banks, filled during a 'portion of the year; and where a body of water is one to be meandered according to the rules of the Interior Department, and upon an application for a survey of its bed it has been decided by the department not to be public land and to have been properly surveyed, it should be regarded as a non-navigable lake.</p> <p>3. Same: meandered lakes: extent of riparian owner rights. The owner of land in this state bordering upon a non-navigable lake which has been meandered by the government survey, takes title simply to the waters edge and not to the center of the lake.</p> <p>4. Meandered lakes: title: drainage: injunction by state. The title to the bed of non-navigable, meandered lakes, is not affected by a conveyance of the shore lands merely, but remains, unless otherwise disposed of, in the general government' for the benefit of all the people alike; but the government having treated them as under the control and sovereignty of the state, for the use and benefit of the public, the state has thus acquired such an interest therein, as will support an action by it to restrain those who are without title from draining the waters therefrom, or otherwise exercising proprietary control over the same.</p>

— IIon. Hugh Brennan, Judge. Action in equity for an injunction to restrain the performance of a contract entered into by the city and for other relief. Bill dismissed, and plaintiffs appeal. The material facts are stated in the opinion.

<p>Appeal from Polk District Court. — Hon. W. H. . McHenry, Judge.</p> <p>In an. action to recover damages for personal injuries received by plaintiff through the negligence of the 'defendant in so operating one of its electric street cars that plaintiff was struck thereby while crossing a street in the city of Des Moines, the court at the conclusion of the evidence directed a verdict for defendant, and after the overruling of a motion for new trial the plaintiff appealed from the ruling on such motion.</p>

— Hon. M. D. Porter, Judge. This is an action upon a promissory note, for $150. The plaintiff claimed thereon as a holder in due course, under indorsement by the payee. The defendant pleaded as a defense that the note was given to the payee for an illegal consideration, and that the plaintiff was not a holder in due course, but was charged with notice of the infirmity in the note. There was a verdict for plaintiff, and judgment thereon. Defendant appeals.

— Hon. Milo P. Smith, Judge. This is an action by the administrator of a deceased wife and others against the executrix of a deceased husband and others to set aside a decree of annulment of marriage. There was a decree for plaintiffs, and defendants appeal.

<p>Appeal from Carroll District Court. — Hon. Z. A. Chueoh, Judge.</p> <p>Suit to restrain the maintenance of an alleged liquor nuisance resulted in a decree as prayed. The defendant appeals.</p>

This is an original action by certiorari in this court to have determined the validity of the action of the defendant in setting aside a decree for the plaintiff in an action in which the plaintiff sought to have canceled a deed to certain real estate from said plaintiff to Doyle Burtis Smith, Gail Smith, and Maurene Smith, minors, represented in said action by a guardian ad litem.

<p>Landlord and tenant: cancellation op lease: total or substantial DESTRUCTION OF PROPERTY: CONSTRUCTION OF TERMS. Under a lease covering a lot and building thereon as then existing, the right of the lessors to cancel the lease under a provision giving them such power in case the building be “totally or substantially destroyed,” absolute annihilation of the building is not essential to an exercise of the right; but if the damage is so complete as to render it untenantable and its restoration in practical effect the construction of a new building rather than a repair of the old one, there is a substantial if not total destruction, within the terms of the agreement.</p>

— Hon. W. R. Green, Judge. This is an- action on a policy of insurance. There was a decree for the plaintiff, as policy holder, and for the intervener, Amelia M. Spies, as mortgagee. The defendant Anchor Fire Insurance Company has appealed.—

<p>Brokers: accounting for profits: evidence. In an action between real estate dealers for an accounting for profits involving, as in this case, the purchase and sale of a piece of land by one of them individually, the burden is on the plaintiff to establish his right to participate therein. The evidence regarding the claimed agreement for a division of the profits is held to support a finding for defendant.</p>

— Hon. W. S. Withrow, Judge. The plaintiffs petitioned the board of supervisors of Des Moines County to establish a drainage district covering certain described land belonging to them and others. An engineer appointed by the board presented his report, recommending • the establishment of a drainage district of twenty-eight- thousand acres within the territory of the defendant county.

— Hon. F. M. Powers, Judge. Suit to recover damages for false imprisonment. There was a directed verdict for the defendant, and, from a judgment thereon, the plaintiff appeals.

Appeals from Linn District Court. — IIon. F. O. Ellison, Judge. The nature of the controversy and. the material facts are stated in the opinion.

— Hon. D. V. Jackson, Judge. Proceedings for the probate of the will of John R. Heath, deceased. Judgment admitting the will' to probate, and the contestant appeals.

Appeals from, Woodbury District Court. — Hon. David Mould, Judge. Plaintiee iu each of these cases petitioned, in habeas corpus, to be relieved from distraint, under a warrant of the Governor of Iowa directing his surrender to defendant Dwyer, as agent of the state of Nebraska, to be taken back to that state as a fugitive from justice. The writ was denied in each case and plaintiff appeals.

— Hon. F. O. Ellison, Judge. Action at law upon an injunction bond given by Joseph W. Whitney as principal, and the defendants Le Olere and Pillard as sureties. The trial court directed a verdict for plaintiff, and defendants appeal.

— Hon. D. F. Coyle, Judge. , Suit in equity for the specific performance of a contract for tbe salé of books and for damages due to delay in filling tbe order. Tbe trial court granted tbe prayer for specific performance and gave plaintiff judgment for the sum of $50. Conditions were also made in the decree which need not be noticed at this time. Defendant appeals.

— Hon. Mido P. Smith, Judge. Action at law upon a certificate of life insurance. Verdict and judgment for plaintiff, and defendant appeals,

<p>Appeal from Ida 'District Court. — Hon. Z. A. Church, Judge.</p> <p>The opinion states the case.</p>

<p>1. Carriers: delay in transportation : damages. A shipper of freight is only entitled to recover nominal damages for an unreasonable delay in its transportation, where no actual damages are shown.</p> <p>2. Same: delay by connecting carrier: limitation of liability by contract: pleading. The undertaking to deliver freight at a point beyond its own line renders a carrier liable for unreasonable delay, though the fault be that of a connecting carrier. And even though it may have contracted against liability for damages caused by a connecting line, still to be available as a defense to such liability the contract must be pleaded.</p>

— Hon. M. A. Roberts, Judge. Action to recover the price of three cypress tanks; plaintiff claiming it was to be $30.45 each, and defendants that that sum was the price for all three. From judgment as prayed the defendants appeal.

<p>Appeal from O’Brien District Court. — Hon. William Hutchinson, Judge.</p> <p>Suit in equity to set aside and cancel a lease made by plaintiffs to defendant on the ground of fraud and misrepresentation in procuring the same. Decree for plaintiffs, and defendant appeals.</p>

— Hon. O. W. .Vermillion, Judge. Suit to recover on two fire insurance policies. Verdict and judgment for tbe plaintiff. Tbe defendant appeals.

<p>Appeal from, Pollc District Court. — Hon. W. G. Clements, Judge.</p> <p>The defendant was convicted of the crime of forgery, and appeals.</p>

— Hon. Robert M. Wright, Judge. Action to compel defendant to place a telephone in plaintiff’s residence, and to furnish him service over its line. From decree as prayed, the defendant appeals.—

— Hon. C. W. Vermillion, J udge. Action at law to recover damages for personal injury. Verdict and judgment for plaintiff, and defendant appeals.

<p>Appeal from Monroe District Court. — Hon. D. M. Anderson, Judge.</p> <p>This is an action for personal injuries. Verdict and judgment for tbe plaintiff. Defendant appeals.</p>

W. S. Withrow, Judge. The defendant is a physician and surgeon, and this is a suit to recover damages for malpractice. There was a trial to a jury and a verdict and judgment for the defendant, from which the plaintiff appeals.

— Hon. B. P. Howell, Judge. Action in equity to enforce the conveyance of real estate and for other relief. Bill denied, and plaintiff appeals.

— Hon. David Mould, Judge. Action at law for the recovery of damages. Yerdict and judgment for plaintiff, and defendant appeals. The material facts are stated in the opinion.

— Hon. E. P. Howell, Judge. The proponent presented for probate a will purporting 'to have been executed by deceased, Alexander H. Brown, on April 6, 1897. The proponent is a daughter of the deceased. The contestants are grandsons of the deceased.

— Hon. James A. Howe, Judge. Action to recover damages for the death of plaintiff’s intestate. Judgment for plaintiff and defendant appeals. The material facts are stated in the opinion.

— Hon. F. R. Gaynor, Judge. Action in equity to quiet title to real estate. Twenty-seven different persons, claiming title to portions of the land in question, are named as defendants in plaintiff’s petition, and the state of Iowa, also claiming title, makes itself a party by intervention. On trial to the court there was a decree for the plaintiff, under date of December 2, 1907.

— Hon. J. D. Smytiie, Judge. Action at law to recover- damages for personal injury. Judgment for defendant upon a directed verdict, and plaintiff appeals.

<p>1. Partnership: individual debts: liability of firm property: liens. Defendant purchased a one-half interest in certain personal property for the purpose of forming a partnership, and gave his notes for the purchase price signed also by a surety. Held, that the notes in'no sense represented a partnership debt for which the partnérship property was liable.</p> <p>2. Same: waiver of lien. The taking of collateral security for the debt of one partner to the other, incurred for an interest in property put into the partnership, is a waiver of any lien the selling partner may have had on the property.</p> <p>3. Mortgage of partnership property: individual debts; liability of firm property. A mortgage given by one partner on his interest in partnership property and to secure his individual indebtedness, is subject to all partnership debts and liens.</p> <p>Evans, C. J., and Weaver, J., dissenting.</p>

- — Hon. W. G. Clements, Judge. Action in equity to restrain the defendant city and its officers from removing certain hitching posts or racks which have been planted and maintained along the street lines bordering a public park. The petition was by the district court dismissed, and plaintiffs appeal.

<p>1. Evidence: transactions with a decedent: competency of witness. One claiming an interest in property by virtue of an oral agreement with a decedent is disqualified by the statute, relating to personal transactions with a decedent, from testifying to the agreement.</p> <p>2. Same. In a partition action between heirs of a deceased person, two of them presenting separate claims which together would equal the •entire estate, they cannot by mutual disclaimer of any interest, each in the claim of the other, remove the disqualification of interest as witnesses for each other to personal transactions or communications with the deceased: Nor will the disclaimers have the effect to eliminate such persons as parties to the proceeding and render them competent witnesses, where the disclaimers are so framed as to insure the success of certain heirs and if possible defeat all others, and if the plan is successful leave the way open for the disclaiming parties to share in the estate.</p> <p>3. Real property: creation of interest by parol: evidence. Oral gifts and contracts creating an interest in land are not invalid, but they must be established by clear and unequivocal evidence: mere expressions of intent or purpose are not sufficient.</p> <p>4. Adverse possession: evidence. Defendant in this action with several other children continued after the death of their father to reside on the home place with their mother, until the other children mar-' ried and separated; the sons working the farm while they -lived there. Defendant cpntinued to reside there with his mother, listed the property for assessment to the estate of his father, made some improvements, but his acts were not inconsistent with the theory that he was a tenant in common of the property. The brothers settled their interests in and divided some of their joint property, not however including the home farm, but none of the daughters joined in the settlement. Held, that the evidence failed to show title in defendant by adverse possession.</p> <p>5. Same. Mere continuance in possession of the family homestead by one of the children, after the others had separated and gone to their own homes, is not-an entry ppon the land under a claim adverse to the other heirs.</p> <p>6. Cotenants: improvements by one tenant. Ordinarily a tenant in common cannot burden the title of his cotenant by improvements made on his own motion.</p>

— Hon. K. E. Wilcockson, Judge. Suit to recover damages for maintaining a nuisance. Judgment for plaintiffs, from which the defendants appeal.

— Hon. N. W. Macy, Judge. Appeal from an order of the district court upon certain objections filed to the final report of the executrix, whereby it was held that the widow of the deceased was entitled to but one-third of a certain fund collected from a railway company, and that Arthur Cook and Mabel Cook were each entitled to one-third thereof. The executrix is appellant.

— Hon. W. H. McHenry, Judge. Appeal from an order of tbe district court directing a judgment for plaintiff upon a verdict in her favor by a jury to which the case was tried.

— Hon. M. D. Porter, Judge. Action to recover damages upon a breach of warranty of a heating plant furnished by defendant to plaintiff for the purpose of warming her residence. Defendant admitted the making of the warranty, but pleaded certain defenses which will be noted in the body of the opinion. Upon the issues tendered the case was tried to a jury, which resulted in a verdict for plaintiff, and defendant appeals.

. — Hon James D. Smyth, Judge. Suit to recover damages for alienating the affections of the plaintiff’s husband. Verdict and judgment for the plaintiff. The defendant appeals.