Volume 19 — Iowa Reports

Prior to 1858, one McClure had obtained from the county judge of Black Hawk county, the right and authority to erect a toll bridge over Cedar river, within the corporate limits of Cedar Falls.

The plaintiff sued the defendant, John A. Squires, and his son, Thomas Squires, before a justice of the peace, for the value of a mar.e alleged to have been killed by the wrongful act of the son under the command of his father. There was a trial by jury before the justice, and a verdict was returned against the defendant, John A. Squires, only, upon which a judgment was rendered by the justice. He appealed to the.

<p>1. Appeal: jurisdiction: board of supervisors. The case of ümbarffer v. Bean, 15 Iowa, 256, as to appeal from an order of a board of supervisors to the District Court, cited with approval.</p> <p>2. Sheriff: salary. The purpose of the legislature in'the enactment of ‘ section ilil of the Revision of 1860, was to graduate the salary of the sheriff by the population of the county; and a subsequent act changing the compensation of the county judge from a salary to fees, did not affect the right of the sheriff to compensation.</p>

<p> Appeal from, Blade Hatolc District Court. </p> <p>For facts, see opinion. Wilcox appeals.</p>

Divorce: demurrer to petition: inhuman treatment as A ground op divorce. — This was a petition for divorce founded upon the seventh subdivision of § 2584 of the Revision.

— The plaintiffs, Sargent & Wilcox, are creditors of the estate of D. J. Chubbuck, deceased. This debt was contracted or created April 28,1860, and is for $264.12. The plaintiff, Kelsey, is likewise a creditor of the estate for $305.48; this debt being evidenced by a note of D. J. Chubbuck, dated March 15, 1858. Chubbuck died July 17, 1861. The personal property of the estate has been exhausted, and the estate is insolvent.

On the 10th day of September, 1862, in the District Court of Story county, a mortgage was foreclosed in favor of the school fund of said county against Andrew and Sarah Bates, upon the N. W. of N. W. sec. 27, T. 33, R. 22, W. 5th P. M., Iowa. On the 10th day of January, 1863, said land under the foreclosure aforesaid, was sold' at sheriff’s sale, to the State of Iowa, for the use of the school fund aforesaid.

<p>Appeal: county judge. Ad appeal does not lie from a ministerial act of a county judge.</p>

This action was brought in the “Court of McGregor to recover a penalty for the violation of an ordinance of the “ Town of McGregor.” The defendant by his answer denied the existence of the court, and averred that the law creating it was unconstitutional. The plaintiffs demurred to this answer, which was sustained and judgment entered against defendant, from which he appeals.

Statute of limitations in equity, etc.: speoifio performance. — The petition was filed August 17, 1859, and alleges that Enoch Wade, deceased, in consideration of $200, executed and delivered to the plaintiff the following contract: “ Burlington, May 22, 1838.

Plaintiff is a junior and defendant a senior mortgagee of real property. ■ The senior mortgage was foreclosed, the plaintiff not being made a party. Under this order of foreclosure the defendant (the senior mortgagee), on an execution issued thereon, purchased the property for a sum less than the debt secured by the mortgage.

<p>I.Per Curiam.</p> <p>1. Evidence: payment of taxes. The payment of taxes may be proved by oral evidence, as well by the receipt or books of the collector. Section 15, chapter 152, Laws Seventh General Assembly, is not inconsistent with this rule.</p> <p>2. -deed conclusive. Whether a legislative declaration in advance that an instrument false in fact shall be conclusive evidence of its truth, would be consistent with the provision of the bill of rights which declares that “no person shall be deprived of his life, liberty or property without due process of law,” query ?</p> <p>II.Per Cole, J., Lowe and Dillon, JJ., concurring, Wright, Ch. J., dissenting.</p> <p>3. Taxations redemption: homestead: The interest of the wife in the homestead is “ the real property of a married woman,” within the meaning of section 119 of the Revision of 1860, which permitted the redemption of such property from a sale made for the payment of delinquent taxes at any time within one year after the disability of coverture was removed.</p> <p>Argu. 1. Homestead: character of homestead title. The husband and wife are practically, as to tbe homestead property, joint tenants, subject to limitations. The interest of the wife is present and fixed and not remote or contingent.</p> <p>2. Tax sale : construction. The term “ owner” and “ parties in interest” in redemption laws have a broad and comprehensive meaning,</p> <p>3.-“ owner :” redemption. Any right which in law or in equity amounts to an ownership in the land; any right of entry upon it, to its possession or enjoyment of any part of it, which can he deemed an estate, makes the person an owner so far as it is necessary to give him the right to redeem.</p> <p>III.Per Curiam.</p> <p>4. Tax sale: time of redemption: constitutional law. Would not a statute reducing or entirely abrogating the time for redemption from sales already made for the payment of delinquent taxes impair the contract, of sale as to the owner ?</p> <p>6. -repeal of statute. Section 13, chapter 113, Laws of 1862, repealing § 118 of the Revision of I860, did not affect the right of the wife to redeem her homestead sold before its enactment, at any time within one year after the removal of the disability of coverture.</p>

Practice: parties; &o. — In May, 1857, Barnes executed to Anderson a title bond for a deed to ten acres' of land, for which Anderson was to pay $100 cash, and the balance by September 15, 1857.

. These suits, three in number, were brought in the District Court of Scott county in the order of time as by the referee arranged. Held: that Robert C. Johnston was equitably entitled to pay for the improvements made after the death of Joseph Johnston, and overruling exceptions by all the parties thereto; confirmed the report of the referee upon this basis, and rendered judgment accordingly. Robert C. Johnston appeals.

This suit was originally commenced before a justice of the peace, where, on a jury trial, the plaintiffs recovered judgment for six dollars. This trial appears by the justice’s transcript to-have been commenced on the 29th day of December, 1863, and there is nothing to show that it was not concluded on that day.. The verdict and judgment, as stated in the transcript, follows the impanneling of the jury without other date being given.

' Injunction. — The petition alleges that there were unsettled accounts between plaintiffs and defendant; that plaintiffs tendered to defendant $15.10, which was refused; that defendant afterwards brought suit before a justice, when the tender was kept good, and on the trial recovered judgment for $3.00, with $12.00 costs.

<p>1. Elections: bridges. Under the statute the board of supervisors have no power to submit a proposition to raise money by taxation and appropriate the same in the construction of bridges, at a special election. Such propositions can be submitted only at a general election.</p> <p>Argu. 1. Board op supervisors : powers. It was the design of the legislature in the enactment of article II, chapter 22 of the Revision of 1860, to substitute the board of supervisors for the county judge, and confer upon said board all the powers and duties relating to the management of the affairs of the county and the government thereof, before that time devolving upon said judge.</p> <p>2. County judge: election. Since the enactment of article II, chapter 22, Revision of 1860, the county judge has not been invested with power to submit to the voters of the county any question in relation to the affairs of the county.</p> <p>3. Construction : repeal. While the repeal of a statute by implication is not favored by the courts, the court will in the construction of a statute take into view the general system of legislation upon the subject matter.</p> <p>4. Bridges : aid to construct. From the power to construct bridges, conferred upon the board of supervisors, is necessarily implied the power to aid in their construction.</p>

Challenge to grand jury — change oe venue — TERM OP COURT, WHEN IT ENDS — EVIDENCE IN SUPPORT OP conpession, &C. — At the September Term, 1864, of the District Court of Buchanan county, the defendant, Knight, was jointly indicted with Christian Rorabacher and Wallace P. Pollard, charged with having burglariously entered the office of the county treasurer, in the court house in that county, on the night of the 17th day of March, 1864, and with having stolen from the safe…

This is a suit to foreclose a mortgage executed by Markel to H. B. Horn and J. B. Wéaver, to secure three promissory notes — two to Horn and one to Weaver — which were assigned by them to Manning as collateral security for a debt due by Horn to Manning, which is still' unpaid. One Seabury had a judgment against Markel, which was a prior lien upon the mortgaged property, and under which it was sold.

Attachment proceedings before justice: requisites OF ORIGINAL NOTICES, &C. : WRIT OF ERROR TO justice of peace. — The plaintiff, Johnson, duly commenced an action by attachment before a justice of the peace, against the defendant, Dodge. Judgment was rendered against the defendant by default.

The defendant recovered judgment against the plaintiffs Crossen, and one Mooreland, for twelve hundred and seventy-two dollars, upon a note whereon Crossen was only surety for Mooreland. To save Crossen harmless, Mooreland conveyed a certain lot in Oskaloosa to him, and took his bond to reconvey the lot upon being released from liability on the judgment.

<p> Appeal from Polk District Court. </p> <p>Draft payable in “currency:” evidence, ac.— Action by the payee against the defendant as the drawers of a draft payable in Chicago, “in currency.”</p> <p>It is the same cause reported in 16 Iowa, 321. It was tried upon the same issues to a jury, and this time resulted in favor of the plaintiff. Defendant appeals.</p>

<p>1. Fraud.! possession: sift to child. A gift made in good faith by a father to his child, while he is solvent, if the possession of the property shall be - taken by the child, and it is held as exclusively hers and under her sole and exclusive control, will not become liable to the father’s debt subsequently contracted, by the simple fact that it was kept in his house with his other furniture.</p> <p>2. -Section 2201 Rev. 1860, has no application to this class.of cases.</p> <p>3. -- This case is distinguished from Odell & TTpdegraff v. Lee et al., 14 Iowa, 411. In that case the property belonged to the wife and was in the .possession of the husband — in this the possession of the child is not the possession of the parent.</p>

<p> Appeal from Webster District Court. </p> <p>Petition to cancel county warrant : powers and LIABILITIES OF COUNTIES WITH RESPECT TO SWAMP LANDS, &c. — The petition alleges, that in 1857 Webster county paid 'the defendant (Taylor) and two other persons $2,769.75, for selecting, returning and reporting, with the requisite maps, the swamp and overflowed land of the county.</p> <p>The petition sets out the act of January 13, 1853 (Rev., § 925, et seq.); the act of January 23, 1853 (Rev., § 951); the act of January 27, 1858 (Rev., § 982). It is then alleged, that on the 5th day of November, 1860, the defendant fraudulently obtained a county warrant for $1,674, upon a bill of which this is a copy:</p> <p>“ October 4th, 1860.</p> <p>“ Webster County,</p> <p>“ To A. Taylor, Dr.</p> <p>“To carrying abstracts of swamp lands to State land office and surveyor-general’s office, and</p> <p>attending to them there,.................... $570</p> <p>To attending to abstracts at Washington city,.... 630</p> <p>To expenses on above trips,................... 474</p> <p>Total,.............................$1,674"</p> <p>It is also averred that the Slate never appointed Taylor to attend to this business, and that “ neither the county judge or the drainage commissioner had any authority to employ said Taylor to perform any of said services, and he never was so employed, and in fact, as the plaintiff believes, never performed said services.”</p> <p>Prayer, that the warrant may be decreed to be surrendered and canceled, as having been obtained by fraud and without consideration.</p> <p>Defendant, in his answer, denies the fraud, and alleges that he did, at the request of the county, and at an expense of over $500 in money, perform the services for which the warrant in question was issued.</p> <p>The record entry recites that the case was “heard upon the petition, answer, reply, exhibits, proof, record and evidence,” and the decree was in favor of the plaintiff as prayed; and it was further ordered, that unless the warrant was surrendered in ninety days, that the county have judgment for the amount thereof and interest ($1,967.49), to be enforced by execution, but with a proviso, also, that it might be discharged in county warrants or bonds issued to Small and Taylor.</p> <p>Defendant appeals.</p>

<p> Appeal from Polk District Court. </p> <p>Highway: its existence how established, &g. : Trespass quare clausum fregit. — Answer: In justification that the locus in quo was a public highway, and the defendant, Tait, the road supervisor, and the other defendant his servant working on the highway, and that all they did was necessary to the improvement thereof. Referred to C. Bates, Esq., as referee, who, upon the evidence, reported that he found in favor of the existence of the highway as claimed by the defendants The report was confirmed, and the plaintiff appeals.</p>

<p> Appeal from Linn District Court. </p> <p>Claims against decedent’s estate : limitation : EQUITABLE circumstances. — Action against the executor of the estate of Nathan M. Day, deceased, to recover divers sums of money, alleged to have been received by tbe decedent, “for the use of tbe plaintiff,” as per an account for $162 annexed to the petition; tbe first item being in November, 1855, and tbe last in August, 1856. Tbe questions arise upon demurrer to the petition, and are two, viz.; 1. Whether tbe equitable circumstances alleged in tbe petition (Rev., § 2405) are sufficient to entitle tbe plaintiff to relief, against the bar arising from a neglect to file bis claim within eighteen months; and 2. Whether bis claim (except as to tbe last item) was filed within five years after tbe same accrued.</p> <p>The demurrer to tbe petition was sustained, and plaintiff appeals.</p>

<p> Appeal from Hardin District Court. </p> <p>On the 15th day of August, 1864, the plaintiff brought her suit for divorce, &c., and caused notice to be served upon defendant, by publication. At the October Term, 1864, the plaintiff obtained a decree for a divorce, quieting her title to certain real estate and personal property. After this decree was, entered, and before any further proceedings were had, the' plaintiff intermarried with one Joseph P’atterson. On the 2d day of.February, 1865, the defendant filed his motion to vacate and set aside the judgment rendered at the October Term, for various causes connected with the service, wherein it was alleged to be-defective and insufficient. Defendant also filed with the clerk at the same time, a demurrer, answer and cross-bill to the petition filed by plaintiff, and caused notice of the motion, and copies of the answer and cross-bill to be served on that day upon the plaintiff.</p> <p>At the May Term, 1865, this motion was heard and sustained, so far as related to the property and the right of the defendant to prosecute his cross-bill, but overruled so-far as it related to the divorce of the plaintiff, which latter portion of the decree was affirmed. From this order the defendant appeals.</p>

<p>1. Husband and wife: surety. The wife cannot bind herself as surety for her husband by a contract which does not relate to her separate property; but she may execute a mortgage conveying her separate property to secure either her own or her husband’s debts.</p> <p>2. - personal liability. The execution of a mortgage by the wife, - conveying her separate property to secure the husband’s debts, does not render her personally liable.</p> <p>3. -validity op.contract. The validity of an instrument executed by the wife to secure a debt of the husband, as between the parties, depends upon its being fairly obtained, without the use of undue or improper influences on the part of the creditor and husband.</p> <p>4. - judgement, A judgment rendered by a court having jurisdiction of ■ the defendants upon a note executed by a husband and wife, the latter being a surety for the former, is, in the absence of some equitable showing, binding upon both parties, and may be enforced against the separate estate of the husband.</p>

On the 15th- of May, 1856, an act of congress was approved, granting to this State, lands in aid of the construction' of certain lines of railroad, including that of the plaintiff. By an act of the General Assembly of this State, approved July 14th, 1856, these lands were accepted, and granted at that date to the several railroad companies therein mentioned, coupled with the rights, powers, privileges and conditions that were annexed to the congressional grant.

The prisoner was indicted, tried and convicted of the crime of aiding to conceal certain gold and silver watches, &c., stolen from one Prochoski, knowing the same, &c. The case grows out of the same transaction detailed in The State v. St. Clair, 17 Iowa, 149. For the questions made see the opinion.

Burglary. — For the circumstances under which the offense charged was committed, see The State of Iowa v. Knight, ante. The material facts will be found in the opinion.

The record presents the following state of case: In April, 1857, the parties both lived in the State of Indiana. The plaintiff owned 120 acres of land in Warren county, this State. He sold the same to defendant for $800, one-half cash down, the balance by note, payable the 25th of December, 1857, secured by mortgage on the land sold. In July, 1860, this suit was brought to foreclose said mortgage.

On the 27th day of July, 1862, plaintiff recovered against the defendant a judgment for $41.53. April the 17th, 1863, an execution was issued on this judgment, and returned nulla Iona. On the 2d day of May, 1863, a garnishment was served on Isaac Millisack, against whom, having appeared and answered, a judgment was rendered for the amount of plaintiff’s judgment claim against Gleason.

The case is this: In April, 1857, the defendant purchased of the plaintiff’s intestate, while in life, the S. E. J, sec. 22 (except 11 acres in the N. W. corner thereof), and N. of N. E. J sec. 27, all of township. 78, range 22 west, amounting in the aggregate to 229 acres, for the sum of $3,140 — $2,000 of which was paid down in cash, a deed executed and delivered to the vendee, who gave a mort.gage back on the same land, to secure the balance of the purchase-money, being…

The defendant was indicted jointly with, others for the crime of larceny. There was a trial, with verdict of guilty and judgment, and sentence for five years’ imprisonment t in the penitentiary, and to the payment of the costs of the prosecution. Defendant appeals..

This is a suit in equity to enjoin a proceeding for forcible entry and detainer, and to obtain a specific performance of an alleged contract for the sale and purchase of an undivided half of the real estate, to obtain possession of which the action for forcible entry and detainer was brought. TJpon ex parte application the injunction was allowed, duly issued and served. Afterwards, on motion and affidavits, the injunction was dissolved. From this order the plaintiff appeals.

The written consent of the parties was filed with the justice, extending his jurisdiction to the amount involved in this case. (Revision, § 3880.) There is no controversy between the parties as to the fact of the sale or the price agreed to be paid.

Pending a proceeding to foreclose a mortgage upon defendant’s homestead, plaintiffs moved an appointment of a receiver, to take charge of the property, collect the rents, and apply the same to the discharge of the incumbrances, including taxes. The motion was overruled and plaintiffs appeal.

Wilson A. Scott, before his decease, and on the 1st day of September, 1856, sold lots 10 and 11 in block 14, in the town of Des Moines, to A. J. Gill and M. C. Howe, for $1,000, payable in four, eight and twelve months, in equal installments, for which notes drawing ten per cent interest were given, and a title bond executed and delivered by said Scott to the said purchasers. - Without making any payments on said notes, Gill & Howe sold the lots,, and assigned the title bond…

Plaintiff claims for money paid for defendant’s use. The petition states that plaintiff held the note of one Gaddis, indorsed to him by the defendant, upon which both maker and indorser were liable; that to pay this note they (G. and V.), borrowed money of one Howard, giving their note, with plaintiff as their surety; that petitioner had to pay the same, and for this he has brought suit to recover.

<p>1. Deed of trust! SALE, a sale of real estate, in accordance with the terms of the power contained in a deed of trust, without a proceeding in foreclosure, is valid, and in the absence of extrinsic equities, concludes the equities of subsequent incumbrancer.</p> <p>2. -rebellion. The disloyal and treasonable acts of the purchaser of property, sold in accordance with the terms of a deed of trust, after such sale, cannot operate to invalidate the sale and let a subsequent incumbrancer, whose equities were barred thereby, in to redeem against such deed.</p>

<p>1. Municipal corporations¡ agent’s power. Agents, officers, .or even a | ■ city council of a municipal corporation, cannot bind the corporation by • any act which transcends their lawful or legitimate powers. And this rule applies to the issue of negotiable as well as unnegotiable evidences of debt.</p> <p>2. -notice op power. The duties and powers of the officers of a municipal corporation are prescribed by the statute, and every person dealing with them as such may know, and is charged with knowledge of the nature of these duties and the extent of these powers.</p> <p>3. -plea op ultra vires. A corporation may set up a plea of ultra vires, or its own want of power under its charter or constituent statute to enter into a given contract, or to do a given act, in excess of its corporate power and authority.</p> <p>4. Contract: negotiable. Negotiability will not validate obligations which are not binding because of want of power to make them.</p> <p>5. Municipal corporations: warrants. "Warrants drawn by the proper officers of a municipal corporation on the treasurer thereof, are not bills of exchange, but are, in legal effect, the promissory notes of the corporation.</p> <p>6. - powers, expressed and implied. Municipal corporations have and can exercise only such powers as are expressly granted, and such incidental ones as are necessary to make these powers available, and are essential to effectuate the purposes of the corporation; and these powers are strictly construed.</p> <p>I. -power to issue negotiable paper. When the officers of a city have no express power, to issue for current, ordinary debts, negotiable paper which shall be free from equities in the hands of purchasers, and it is not necessary as an incident to those granted, or to carry out the purposes and objects of the corporation, it cannot be held to exist by implication.</p> <p>8. -warrants: notice. The assignee of warrants drawn by the officers of a municipal corporation on the treasury thereof, is bound, at his peril, to ascertain the nature and extent of the powers of such officers and of such corporation.</p> <p>9. -unauthorized representations. The want of corporate power or the want of authority in the municipal officers, cannot be supplied by their unauthorized action or representations.</p> <p>JO. Usury: warrants. Warrants issued by a municipal corporation in payment of a judgment at the rate of one dollar in warrants for every - seventy-five cents due on the judgment, are tainted with usury.</p> <p>II. Municipal corporation: over-allowance. It may be doubted whether a municipal corporation is bound by the action of its council in agreeing to pay a sum clearly, distinctly, and ascertainably greater than is legally due.</p> <p>12. Des Moines: ROAD funds. Under sections 23 and 21 of the Charter of the city of Des Moines (chap. 185, laws of 1851), the care of the roads and streets within the limits of said city is a corporate matter; and all charges therefor are payable primarily out of the.city treasury; and the liability of the corporation cannot be changed or varied by the form in which warrants are drawn or worded by municipal officers.</p> <p>13. Municipal corporation: toll-bridge. No municipal corporation can erect a toll-bridge and levy and collect tolls, unless authorized by the law of the State.</p> <p>14. Des Moines: power to erect bridge. The city of Des Moines possessed no power, under the charter of 1851, to erect a toll-bridge, either by itself or jointly with an individual.</p> <p>15. Municipal corporations: loan of credit. A municipal corporation has no power to lend its credit or make its accommodation paper for the ■benefit of citizens, to enable them to execute private enterprises.</p> <p>16. Des Moines: sidewalks. The building of sidewalks was, under the charter of 1851, a legitimate municipal object.</p> <p>11. Municipal corporation: scrip. When a municipal corporation, acting under the 'Constitution of 1846, issued in payment of a Iona fide indebtedness, scrip to circulate as money, after which the scrip was taken up by the issuance of ordinary warrants on the treasury thereof for the amount of the same, it was held, that the transaction could not be impeached by the corporation on the ground that the scrip was illegal and void.</p> <p>18. Evidence: signature to warrants. In an action against a municipal corporation, upon warrants, if the warrants are set out in the petition by copy, and their execution is not denied under oath, they may be admitted in evidence without proof of the genuineness of the signature, or of the authority to issue the same.</p>

Action for the recovery of real property. The plaintiff sues to recover a part, sixteen feet front by one hundred feet deep, of lots nine and ten, in block four of the town of McGregor, claimed as being in the west half of said lots. The cause was tried by the court without the intervention of a jury, and a judgment was rendered in favor of the plaintiffs for the property claimed. The defendants appeal.

This was an indictment for setting fire to certain mate* rial with intent to cause the burning of a barn, the property of one George Downs, of the value, &c. Yerdict of guilty,, judgment thereon, and the defendant appeals.

Replevin by tbe wife against tbe husband for a bureau, table and other articles of household furniture. It seems that the parties were married in 1854, and that this property, belonging to the wife before the marriage, was brought by her to the defendant’s house, and there used by them until their separation in 1862. She left her husband, as she alleges, for cause. This is denied, and upon this subject the testimony is somewhat conflicting.

Statute of limitations in equity proceedings: FORECLOSURE. — The petition, in this case, was filed April 28, 1864, to foreclose a - deed of trust made by Michael J. Sullivan, since deceased, to one John D. Sullivan as trustee to secure to tbe plaintiff, Newman, $690, “ to be paid on or before tbe 10th day of June, 1851, as will more fully appear by my promissory note, to that effect of tbe same date with these presents.

This suit is brought upon county warrants. The petition contains twenty-four counts, upon as many warrants. The plaintiff recovered judgment for the full amount of his claim, and the defendant appeals. The record is quite voluminous, and it will conduce to perspicuity to state the facts bearing upon each point in connection with the discussion of the legal questions arising thereon. The further necessary statement of the case will, therefore, be found in the opinion.

The petition in this case alleges 'that the defendant is a corporation owning and operating a railroad from Chicago to Freeport in the State of Illinois; that the plaintiff paid his fare and took passage on the cars of defendant from Freeport to Chicago, and by reason of the careless and ■unskillful management on the part of defendant, the cars were thrown from the track and plaintiff thereby greatly injured and to his damage ten thousand dollars.

<p>1. Reformation of • contracts ¡ case approved. The caso o'f Gelpcke, Winslow & Go. v. Make, 15 Iowa, 389 as to the rules governing the reformation of contracts by courts of equity, cited and approved.</p> <p>2. Practice: dismissal of defense. After the Supreme Court had passed upon the sufficiency of an equitable defense, adversely to the defendant, and remanded the cause, the District Court did not err in dismissing such defense.</p> <p>3. Contract! want of consideration. While it is competent to show the absence, failure or illegality of the consideration of a contract in writing by extrinsic evidence; or that it is greater or less than that therein specified; it is not competent to show one adverse to the one expressed upon the face of the instrument.</p> <p>4. -by corporation. A railroad corporation may make, if acting in good faith, a valid and binding contract^ releasing a stockholder from liability upon his subscription to the stock of the corporation, either with or without the consent of the creditors and stockholders of such corporation. '</p>

<p> Appeal from Webster District Court. </p> <p>In equity. — The facts will sufficiently appear in the the opinion of the court.</p>

Foreclosure oe mortgage: requisites oe valid CONVEYANCES BY MARRIED WOMEN: INSTRUMENTS AND DEED EXECUTED IN blank. — The plaintiff brings this action against the defendants, who are husband and wife, to foreclose a mortgage purporting to be executed by them, in substance as follows: “We, Wm.

<p> Appeal from, Clinton District Court. </p> <p>Indictment for forgery. Verdict of guilty with judgment thereon; from which defendant appeals.</p>

Clouds on title: remedy in equity. — This is an appeal from an order of the District Court, refusing to dissolve an injunction.

This is, a submission, without action, upon, an agreed statement of facts, as provided by chapter 131, of the Revision. So much of the facts as are essential to properly understand the questions determined, may be stated as follows : Hiram B. Melendy, being the owner of certain real estate in Delaware county, on the 1st day of January, 1856, mortgaged it to the school fund.

<p>1. Criminal law! evidence: declarations of prisoner. When a circumstance in the conduct of the prisoner was alleged to have occurred on the day of the commission of the offense, and its occurrence on that exact day was material as an important fact tending to establish the guilt of the accused, it was held, upon the separate trial of a co-indictee, in which such prisoner was introduced as a witness, that statements made by him before the alleged offense was committed, relating the circumstances and showing its occurrence on a prior day, were admissible, either as independent evidence, or as sustaining the evidence of the prisoner.</p> <p>2. -alibi: case approved. The law relating to alibi as a defense in a criminal proceeding, as stated by Shaw, Ch. J., in the Webster-JParkman case, 3 Cush., approved.</p>

Plaintiff, as trustee, claims to be tbe owner of and in possession of a large tract of land in Scott county, in this State, on the Mississippi river, and nearly opposite the town of Moline, in the State of Illinois.

Plaintiff'sues defendants for damages, and on account, in the sum of ninety-three dollars, before a justice of the peace, gets a judgment'for $30.94 and costs. The defendants take the benefit of the stay law, and afterwards appeal to the District Court. The transcript, as sent up, did not show that the judgment had been stayed. Nevertheless the plaintiff moved to dismiss the appeal as being inadmissible after á stay of execution; which motion was overruled.

Resulting trusts : purchase of land by wife with husband’s money: effect of, &c. — This is a petition in equity by five of the heirs-at-law, one son and four married daughters, of John Sunderland, Sr., deceased, against Elizabeth Sunderland, his widow, and two of the heirs of the said 'John, claiming that the said Elizabeth holds the legal title to 160 acres of land in trust for the heirs.

This is a scire facias, to revive a judgment against the administrator, and heir of a judgment defendant. The plaintiff alleges, that on the 20th day of March, 1860, one Sarah Fleming recovered judgment, in the District Court of Louisa county, against Thomas Fleming for $1,060.20, to bear ten per cent interest; and that the judgment was assigned to plaintiff, May 11th, 1863.

R. Claussen was the owner in fee of certain mill property situated in the town of Lyons, in Clinton county, upon which the defendant, Sheaff, had a mortgage made by Claussen to secure the sum of five thousand dollars.

Fairall and Boal had a claim of $100 for professional services, against Martha L. Jacobs, who was the legal owner of east half of lot 3, section 35, township 78. This land they attached on the 25th of November, 1863, objtained judgment, and had the same sold under execu-. tion, which was purchased by plaintiff, at said sale, for the sum of $140.60.

The plaintiff purchased of one Wm. D. Harrah, certain real estate, and afterwards, for a valuable consideration, the said Harrah agreed to purchase the same real estate of the plaintiff at the end of three years from the first sale, at the agreed price of eighteen hundred and twenty dollars, provided the plaintiff should elect then to sell the same at that price and convey it by good and sufficient deed, with general warranty, and free from all incumbrance whatever.

— The questions made in this court arise upon the ruling of the District Court sustaining the defendant’s motion to dismiss the landlord’s attachments, and to order the return of the property thereon attached. It is necessary to set out the substance of the petition. This alleges that, on the 3d day of March, 1864, the parties entered into a certain written contract, which is made part of the petition.

The parties have agreed that the following is a true and complete statement of the facts and rulings of the District Court in the cause: “ On or about the 18th day of August, A. D. 1865, one John Dunn filed his affidavit before H. A. Miles, a justice of the peace in Bremer county, Iowa, stating that he had lost the sum of two hundred dollars; that he had good reason to believe, and did believe, that one Samuel Pratt was in possession of said money, and prayed that a search…

Plaintiff, as the surviving heir-at-law of Rossel Woods, deceased, claims certain lands against defendants, whí> are the heirs of Stephen Goodrich, deceased. The claim is, that said Stephen, while guardian of plaintiff, purchased these lands with her means'and for her, taking the title in his own name, which defendants now therefore hold in trust, &c. Trial on bill, answer and testimony, judgment for defendant, and plaintiff appeals.

Appeal from Dubuque District Court The case developed by tbe record, and tbe facts out of which it arose, will sufficiently appear in the opinion of the court.

In 1857 and 1858, the plaintiff was the owner of the southeast quarter and the south half' of the northeast quarter of section nine, township eighty-eight, north of range four, west, and… Held: that plaintiff could redeem by paying proportionate as to quantity, and granted the mandamus accordingly. The defendant appeals. First. The State has a lien for taxes, and the purchaser at a tax sale acquires this lien, which extends to all of the land as assessed and sold. Second.

Marsh, is the administratrix of said estate, duly appointed in February of the same year.

Weights and measures: perch of masonry defined: CUSTOM CANNOT CONTROL AN EXPRESS STATUTE: REFORMATION OF CONTRACT : PRACTICE IN SUPREME court. — This is an action by the plaintiff, a stone mason, for work and materials. The parties entered into a written contract, March 7, 1864, whereby the plaintiff agreed to furnish the materials and do the stone work of a house for the defendant.

This is a suit in equity, brought by Elisha Chamberlain, and three other citizens of and property owners within the city of Burlington, Iowa, against the city of Burlington, and the mayor, alderman and treasurer, by their respective individual names, and as officers of said city.

The record, in its essential particulars, reveals tbe following state of case: In April, 1852, the defendant, Andrew D. Stephens, purchased of Irvin D. Simison, the school fund commissioner of Benton county, the east half of section thirty-five, and the northeast quarter of the northeast quarter of said section thirty-five, all in township eighty-two (82), north of range twelve (12) west, being 360 acres, at $1.25 per acre, paying one-fourth of the purchase-money down, and…

Plaintiee was unsuccessful in an action before a justice of tbe peace, tried on tbe lOtb of December, 1864 On. tbe same day, be perfected, as be supposed, bis appeal, and tbe transcript was duly filed in the District Court. Defendant afterwards, in May, 1865, moved to dismiss tbe appeal, for tbe reason that no revenue stamp was attached, either to the bond, transcript or other part of the appeal record.

The record reveals tbe following state of case: One Brown gave bis note for $500, to James Mansfield; be indorsed tbe same to Yeacb and be to Hamilton. Hamilton, witb one Lown, guaranteed and transferred tbe note to H.-B. & E. S. Carters. Tbe Carters sue tbe maker, Brown, and all the intermediate indorsers and guarantors, and obtain judgment against each and all of them.

General covenant of warranty : effect of : BREACH: fixtures: rent, &g. — This is an action by the plaintiffs (the assignee of one Daniel Lawrence) against Van Nostrand, on the covenants contained in a conveyance of real estate, made by Van Nostrand to Lawrence.

This is an action in equity, brought by the plaintiffs, Lucretia S. Delavan, who is the widow, and the other plaintiffs, who are the adult children and heirs of George E. Delavan, deceased, against the minor children of said Delavan, deceased, and Addison W. Pratt and Jones & Shepherd, as judgment creditors of the said Delavan, deceased.

The petition alleges that in October, 1864, defendant was duly drafted into the military service of the United States, in the first class or division; that plaintiff was drawn in the second class or as alternate; that defendant, though primarily liable to render the service, fled the country to avoid the same, never has responded to his obligations under said draft, but secretes himself beyond the control of the proper military authorities.

Defendant sued as guarantor of a note of $1,000, given by his son to the decedent. Defense: No consideration to support the guaranty; no demand and notice of protest; maker solvent when suit brought. These issues tried by the court and found for plaintiff. Defendant moved for a new trial which was overruled; upon his exception the case is here for revision.

Motion to set aside sale. Motion to set aside sheriff's sale : caveat emptor : statutory provision. — This is a motion made in this court, by Hamsmith, to set aside the sheriff’s sale to him of lot 32, in Fort Madison, on his execution against Espy, Barker and Robinson. The material facts are these: In June, 1860, Hamsmith recovered judgment against Espy et al. in the Lee District Court, for $185.88 and costs.

Murder: implied malice: requisites of murder: DEGREES of: PERSONAL PRESENCE OF DEFENDANT ON TRIAL. — The defendant was indicted and tried for the murder of one Daniel Clark Akers. Plea: Not guilty. Yerdict: Guilty of murder in the second degree. Judgment : Sixteen years in the penitentiary of the State. Defendant appeals. The errors assigned, and the facts, so far as material, will be found in the opinion.

<p>1. Practice: modification of sentence. The Supreme Court will not modify tho sentence of a court helow, in a criminal cause, when the record does not disclose the circumstances attending the commission of the offense.</p> <p>2. Intemperance: penalty fob drunkenness. The language of the statute (Rev., 1860, §§ 1568, 1586) seems to be imperative that thirty days imprisonment shall form a part of the punishment for intoxication.</p>

On tbe 27th of February, 1865, the plaintiff, Smith, was arrested, tried and found guilty of drunkenness, under the twelfth section of the act for the suppression of intemperance. Rev., § 263. He was fined $10 and imprisoned thirty days, being the precise penalty affixed in said act for such an offense.

' Mortgage by wipe op separate property: consideration : fraud : undue influence. —■ This is a suit to foreclose a mortgage executed by tbe defendants, to secure a promissory note, signed by them both, for $700, dated July 28, 1862, and payable to the plaintiffs, one year after the date thereof. The defendants are husband and wife; the wife alone defends.

The plaintiff holds ten bonds of one thousand dollars each, dated the 1st day of July, 1853, running from six to: eleven years, with interest at the rate of ten per cent, payable semi-annually, issued and delivered by the city of Dubuque, for value, to F. S. Jessup and Company or bearer. The city issued $20,000 of other bonds, which were negotiated and passed into other hands.

The plaintiffs commenced their suit by attachment against Lee & Kinnard, alleging, as the ground for attachment, that the defendants had disposed of their property in part with intent to defraud their creditors. The writ of attachment was served by summoning the defendant, Thomas Arnold, as garnishee. At the appearance term, the plaintiffs obtained judgment against Lee & Kinnard for the whole amount claimed, it being $421.85.

Post-nuptial contracts, when valid: rights of MARRIED WOMEN,: UNDER STATUTE AND IN EQUITY: WIFE MAY BECOME A CREDITOR OF HER HUSBAND, &G. — The plaintiff is the widow of William Logan, deceased. The defendant, Hall, is the administrator of the said William, and the other two defendants, who intervened, are his heirs-at-law, by a former wife.

- . Defendant appeals from a judgment rendered against him upon the following “facts found” by the judge below: Defendant made his note to plaintiff, by which he agreed to pay, for value received, in a certain policy of insurance, the sum claimed in the petition,. “ in such portions, and at such, time or times as the'directors of said company, may,. agreeably-to their charter and by-laios, require.” By the charter, the' capital stock consisted of the premi um notes and cash…

<p>1. Praotice: motion for new triax. The Supreme Court will not reversa the judgment of the court below upon an assignment that the verdict is not sustained by tho evidence, when the motion for a new trial. upon that ground was submitted to the court below.</p>

By consent, Stephenson, as the present owner of the Rickart lot, was substituted as defendant, in place of Rickart, and moved the District Court to strike out of the petition all of the counts but the sixth, for misjoinder of parties defendants, and because of the .improper joinder of independent causes of action against other defendants.

<p> Appeal from Monroe District Court. </p> <p>Plaintiff and the interveners, S. D. Noble & Co., are creditors of the estate of S. D. Ramsey, deceased. The administrator was appointed December 20, 1859, and he immediately gave notice thereof, as required by law. Within six months thereafter the intervenors duly filed their claim against the estate, but it was not finally established until March 11, 1864. Plaintiff filed his claim after the expiration of the six months, and proved the same at once, or at least before the expiration of eighteen months from the giving of notice, by the administrator, of his appointment. In a' contest between these creditors as to their right to priority of payment (the estate being insolvent),, the court below held, that they were both fourth class creditors, and were.to be paid pro rata. From .this order, plaintiff appeals.</p>

<p> Appeal from Jasper District Court. </p> <p>The petition alleges that Dixon and Todd, of which firm plaintiff was a member, owned a stock of goods in a » store in Newton, rented by them of one Manning; that the defendant purchased the stock of goods of Dixon and Todd, and agreed to pay the rent of the store until the termination of the lease; that defendant had failed to pay the said rent as agreed, and plaintiff had been compelled to pay the same, and to recover which this suit was brought.</p> <p>' The defendant filed his answer denying the allegations of the petition, also alleging that at the time of leasing the premises the plaintiff was a partner of defendant, and jointly liable with him for the rent; that the plaintiff'leased the store himself, and afterwards defendant became his partner, and still later bought out the partnership stock, and only agreed to pay the partnership debts; and the rest was not a partnership, but plaintiff’s individual debt, and defendant was not liable to pay it; that plaintiff had only paid fifty dollars rent, and defendant was only liable for the amount paid, and not for the agreed rent, and that the claim sued on is the property of Dixon and Todd, and does not belong to the plaintiff alone. To these numerous defenses there was filed a reply in denial, and reaffirmance of the allegations of the petition.</p> <p>The cause was tried to a jury, and resulted in a verdict for plaintiff, for eiglity-tliree dollars and thirty-three cents, with interest from 9th day of June, 1860. The defendant filed his motion for a new trial, &c., and among other causes therefor, assigned that the evidence shows that the claim belongs to the firm of Dixon and Todd. This motion was sustained, and a new trial granted. Thereupon the plaintiff filed an amended petition, alleging that defendant’s promise and liability, as stated in the petition, was made and -resulted to Dixon and Todd, of which firm Israel Dixon was a member, and asked that Dixon and Todd be made plaintiffs, and the cause be further conducted in their names. This amended petition was signed by the attorneys for Israel Dixon, and Dixon and Todd. The defendant moved the court to strike this amended petition from the files, which motion was sustained, and thereto plaintiff and Dixon and Todd duly excepted, and now bring this appeal.</p>

In November, 1864, the appeal in this cause (being an appeal from a justice’s judgment) was dismissed, because there was no United States revenue stamp affixed to .the process by which it was transferred to the District Court.

The defendant was tried and convicted of an assault with intent to inflict a great bodily injury. Supposed errors of instruction by the court to the jury, were made the ground of a motion for a new trial, which was overruled and the defendant appeals.

This is a suit in equity brought by the plaintiff, who is a junior mortgagee of a stock of hardware, against the defendants, Farley and Chrisman, who are senior mortgagees of the same property, and R. T. Fanning & Co., who are the mortgagors, are also made defendants.

Plaintiff declares upon a note for $650, payable “ in specie,” signed by the defendant as surety for one Gill, claiming but half of the principal with the interest thereon.

Specific performance. — The defendant, Sytha, J., is the administratrix of the estate of Edwin Hall, deceased. The object of the petition, which is in equity, is to obtain a conveyance of lot 5, block '3, Hall’s addition to- Des Moines.

— Action upon a note, of which this is a copy: “ 1623-aa-. Zanesville, March 8th, 1818. “Twelve months after date I promise to pay James “ Stutson, or order, six hundred and twenty-three dollars “ and twelve cents, for value received. “(Signed) ' JOHN t. HOPKINS.

This is an action to recover fees for services rendered by tbe plaintiff, as an attorney-at-law for tbe defendant, in a certain suit named in the petition. The petition, after stating the case in which the services were rendered, and other special facts concerning it, and that by reason of its importance, &c., he was compelled to employ an assistant, further states as follows: “And the plaintiff, with said assistance, tried said cause and did their work well.

' Appeal from Pollc District Court, Sales under 'deeds of trust'; must be ■ a valid power: 'effect of usury: when such sales will be SET ASIDE, ETC. — The action-of the plaintiff was in ejectment to recover possession of lots 3 and 4, block 1, West Fort Des Moines. It was commenced April 19, 1862, against Cook aloile. Cook’s original answer contained a general denial.

John Dickey built a house on one of the lots and entered into possession of the same in 1856 and 1857. The notes being nearly due, John Dickey made an arrangement with R W. Dickey, the plaintiff, to take the property and pay out the notes. The bond from Lyon having been lost, upon request, Lyon made a new one to plaintiff dated November 19th, 1858.

<p> Appeal fi-om Monroe District Court. </p> <p>The facts are stated in the opinion of the court:</p>

Defendant recovered judgment against plaintiff, at the February Term, 1863, of the Mills District Court, for tbe amount of a promissory note, and -within one year thereafter, plaintiff filed his petition for a new trial, under section 3116 of the Revision, upon the grounds of accident and surprise, and because of newly discovered evidence, as provided in clauses three and seven of section 3112.

<p> Appeal from Dubuque District Court. </p> <p>This is an action of right. The cause was submitted to the court without the intervention of a jury, and the court found the facts as follows:</p> <p>That prior to and on the 10th day of October, 1854, James Dyer was the owner, in fee simple, of the N. E. \ 'of section 31, T. 89, E. 2, west of the 5th P. M.; that the village of Dyersville is laid out upon said quarter section ; that on the 10th day of October, 1854, James Dyer executed and delivered to William G-. Stewart and Emerson and Shields, a mortgage upon the following property, to wit: lots 39, 40, 41, 83, 84, 85, 86 and 96, in the village of Dyersville, together with all the improvements thereon, viz.: a storeroom on lot 96 and dwelling house on other lots, the same being the northeast quarter of section 31, T. 89, E. 2, west; that in said mortgage the words “situate in the” had been written after the word “lot,” and before the words “the same being,” but had been partially obliterated by scratching across them with a pen; that the said mortgage was duly acknowledged and recorded on the 10 th day of October, 1854, in Book No. 4 of Mortgages, pages 254 and 255; that the said mortgage, during the year 1861, was foreclosed and property sold by the sheriff to William Gf. Stewart and John H. Emerson, and conveyed to them by the sheriff, in pursuance of such sale, by deed, dated November 8, 1861, and filed for record December 23, 1861, aud recorded in Book No. 10 of Town Lots, page 74; the deed contained the same description as the mortgage; that the mortgage above named was entered in the Index Book of mortgages as follows :</p> <p> </p> <p>— That there was a plat of Dyersville, recorded in Book T, p. 488, filed January 19, 1856, and acknowledged, upon which, among others, there was marked and laid down lots numbered 96 and 420. That at the time of making the above named mortgage, there was in existence a plat of Dyersville, upon which was marked and laid down a lot, numbered 96; that the said last named plat was lost and never was recorded, and that the lot numbered 96, on the last named plat, was the same lot which was numbered 420 on the first named plat. That upon the lot numbered 96, on the last named plat, there was, at the time of making of the last named mortgage, a storehouse, and that upon the lot numbered 96, upon the first named plat, there never was any building at all; that on the 27th day of September, 1856, James Dyer executed and delivered to James Huff and Thomas W. Hicox a mortgage on lot 420,, and improvements on same, situated in the village of Dyersville, as per recorded plat of said village, to secure the payment of $3,770, which was recorded October 4, 1856, in Boole 7, p. 91; that said mortgage was foreclosed and the property sold by the sheriff of Dubuque county, and by him conveyed to James Huff and Warren T. Hicox, by deed dated 24th August, 1860, and filed for record September 12, 1860, and recorded in Book 8, p. 528 of Town Lots, in which deed the property was described the. same as in the last named mortgage.</p> <p>That James Huff and Thomas W. Hicox, at the time they took the mortgage, had no notice of the mortgage to Stewart, Emerson & Shields, unless in judgment of'law, they were chargeable with notice by reason of the facts above stated; that Huff and Hicox had no knowledge of the existence of the plat which was first made, but never recorded.</p> <p>As a conclusion of law upon the above facts, the court found, that Huff and Hicox, when they took their mortgage, were bona fide purchasers for value, without notice of the lien of Stewart, Emerson and Shields, and rendered judgment accordingly that plaintiff’s petition be dismissed with costs.</p> <p>The plaintiffs appeal.</p>

Polk District Court A petition in equity, founded upon the following alleged state of facts: That in the year 1862 plaintiff was the owner of a brown mare of the value of $125, which strayed away in the month of August of that year, and was taken up in Warren county by the defendant, Marshall, who neglected to comply with any of the provisions of the estray law.

<p> Appeal from Fremont District Court </p> <p>APPEAL : JUDGMENT: EVIDENCE I HUSBAND AND WIFE.</p>

<p>Appeal from Johnson District Court</p> <p>ERROR MUST APPEAR AFFIRMATIVELY.</p>

<p> Appeal from Mahaska District Court </p> <p>SUPREME COURT WILL NOT REVIEW A RULING TO WHICH NO EXCEPTIONS WERE TAKEN BELOW.</p>

<p> Appeal from Delaware District Court </p> <p>EVIDENCE : HUSBAND AND WIFE: CASE FOLLOWED.</p>

The plaintiff’s petition is filed to foreclose a mortgage made to her by Wells, one of the defendants. Among the defendants named in the petition was one Josiah Lamborn, who answered, that he was a judgment creditor of Wells, and that Wells’ mortgage to tho plaintiff was fraudulent and void. Other issues, not necessary to be now noticed, were made and tried between the plaintiff and the other defendants.

The record develops this case. In June, 1857, plaintiff purchased of defendant two lots, situated in Dubuque, numbered 369 and 370, for $9,000, paying one-fourth down, the balance in three equal annual installments, secured by a deed of trust on said lots.

<p> Appeal from Folk District Court </p> <p>ON APPEAL BY THE DEPENDANT IN CRIMINAL CAUSES, THE SUPREME COURT WILL EXAMINE HIE RECORD WITHOUT REGARD TO TECHNICAL ERRORS AND DEFECTS, AND RENDER SUCH JUDGMENT AS THE LAW DEMANDS.</p> <p>. ‘ The defendant was indicted for establishing and continuifig a nuisance, by the sale of intoxicating liquors, &c.</p> <p>He was arraigned and interposed the plea of “not guilty.” After-wards lie withdrew this and plead “ guilty,” upon which and the evidence, he was adjudged to pay a fineof fifty dollars and costs, and stand committed until paid. Prom this the defendant appeals.</p> <p>No appearance for the appellant.</p>

<p> Appeal from Wapello District Court </p> <p>practice: no exceptions below.</p>

The defendant is a body corporate, for educational purposes, organized in 1852, under the general incorporation laws of the State, and located in Yellow Spring Township, Des Moines County, Iowa. It has power, by its articles, to contract, to acquire and dispose of property, to sue and be sued, &c., &c. It is provided that the corporate concerns shall be conducted by a board of trustees.

<p>Appeal from Warren District Court</p> <p>UHE SUPREME COURT WILL NOT TRY EE NOVO ISSUES JOINED ON THE ALLEGATIONS OF A CREDITOR’S BILL, WHERE THE RECORD DOES NOT SHOW THAT IT EMBRACES THE EVIDENCE HEARD IN THE COURT BELOW.</p>

In equity: Dasher seeks to have set aside a deed of trust, purporting to be made by his co-plaintiffs, to the defendant, Jameson, upon their homestead, and to obtain priority for a like instrument made by them, to him, on the same property.