Volume 53 — Iowa Reports

William Moore, jr., died intestate, seized in fee of tbe lands described, and leaving surviving bim neither wife, child, nor parent. His mother, Ann Moore, died prior to the death of his father, William Moore, sr. William Moore, sr., after the death of his wife Ann, married the plaintiff Alvira Moore. The plaintiffs and the defendants differ in their views as to the proportion in which the estate shall be divided.

Sarah B. Eaton was tlie owner in fee of certain real estate in tlie city of Decorali, less than oue-balf acre in extent. Sbe 'lied intestate and without issue, on the 21st day of February, 1876, leaving her husband and her two sisters as her beirs. Her father and mother were dead, and sbe never had any other sisters nor any brother. For ten years hefoi’e her death she and her husband, II. IT. Eaton,- used and occupied the said premises as their homestead.

Replevin. Tbe cause was tried to the court without a jury and a judgment had for plaintiff. Defendant appeals. The facts appear in the opinion.

Plaintiff brought an action of forcible entry and detainer before a justice of the peace to recover possession of eighty acres of land, claiming to have acquired title thereto by virtue of a sheriff’s sale and deed, under a decree of the Circuit Court of Black Hawk county, in an action against defendant at the suit of Mary A. Wood, wherein a decree was entered against defendant, which was made a special lien upon the lands sold thereon to plaintiff.

Action in chancery. There was a decree dismissing the petition upon a judgment which sustained a demurrer. Plaintiff appeals. The facts of the case apjiear in the opinion.

<p> Appeal from Johnson District Court. </p> <p>Action in equity. The action was dismissed on the merits and plaintiff appeals.</p>

This appeal is taken from the order of the court overruling a motion made by the defendant to set aside the judgment rendered in the case.

The plaintiff filed in the office of the clerk of the Winneshiek Circuit Court a petition as follows: “1. That on the 19th day of July, 1878, the defendant, as a justice of the peace, rendered a judgment against the plaintiff and for one ITenry Madison for $21.95 and costs. “ 2. That at the time of tfie rendition of said judgment the defendant was a duly qualified and acting justice of the peace in and for said county of Winneshiek. “ 3.

<p>1. Contract: substitution: settlement of account. Where the plaintiff held an account against the defendant and another, whom he alleged to be partners, but the partnership was denied by the defendant, who claimed that he was liable for one-half the amount only, it was held that the taking by the plaintiff of the individual time note of each of the debtors for one-half his claim constituted a new contract, and that the defendant could not be held liable for the portion covered by (he note of the other party.</p> <p>2.--: condition precedent. Where the plaintiff furnished certain materials to a subcontractor under the defendant, for which the defendant agreed to pay upon the orders of the subcontractor, it was held that the presentation of such order was essential to establish a liability upon the part of the defendant.</p>

Action to recover specific personal property, wbicb, it was stated in the petition, the defendant as constable, under and by vii’tue of an execution, had levied upon and taken from plaintiffs’ possession.

Action to recover for taxes paid by plaintiff’ and his grantors upon the lands which, as he alleges, were not subject to taxation. The case was tried to the court below upon an agreed statement of facts, and judgment rendered for defendant. Plaintiff appeals. The case has been before in this court. See 46 Iowa, 253.

<p>1. Pleading: judgment: subrogation. The allegations of the pleadings considered, and held to entitle the plaintiff to be subrogated to the rights of the holder of a judgment against the defendant’s intestate and himself, which he had paid.</p>

<p>1. Judgment: supersedeas: writ of error. Where a case was removed from this court to the Supreme Court of the United States by writ of error, but such writ was not lodged with the clerk until after the expiration of sixty days from the filing of the opinion, it was held that the judgment of this court was not superseded, and the proper process for its enforcement was directed to issue upon application of the party entitled thereto.</p>

The plaintiff filed a claim against the estate of her deceased husband, and as to her right to recover an agreed statement of facts was made, which is as follows: “ It is agreed in this case that Emily E. Courtright, who is widow of decedent and claimant herein, had $1,950 in drafts, on the 30th day of September, 1873, which she owned in her own right; that the amount of said drafts was drawn by decedent at that time, and during the continuance of the marriage of this…

Action iu equity to set aside an execution sale of an undivided balf of a threshing machine, and to determine the conflic ting claims of the plaintiffs and defendants in relation to the same. The machine was owned by one Tierney and one Ooolc. The plaintiffs obtained a judgment against both, and the defendants obtained a judgment against Tierney alone. The plaintiffs caused execution to be levied upon the entire machine.

This is an action at law for the possession of part of out-lot No. 31, in the city of Davenport, being a piece of land one hundred and fifty-two and one-twelfth feet long from north to south, and sixty feet wide. The petition alleges that on the 25th day of December, 187J, Patrick Foley died seized of the premises, leaving the plaintiffs, his widow and children, his sole heirs.

The defendant, with. Robert Graves, Andrew Smith and: Archie Brown, was indicted by the grand jury of Polk county for the murder of Ella Barrett on the 28th day of August, 1874. Upon petition of defendant, the venue of the cause, as to himself, was changed to Jasper county. Upon a trial in that county he was convicted of murder in the second degree and sentenced to imprisonment in the penitentiary foi twelve years, and now prosecutes his appeal to this court.

There are two counts in the petition. The first seeks to recover on a promissory note executed by the defendants only, which it was admitted had been altered, without fraudulent intent, as it was averred. The second seeks to recover on the original consideration for which the note was given.

Action upon an account for goods sold by plaintiffs to the defendant T. E. Eains. At the time of the sale Eains was doing business as a merchant, in his own name, in the town of Malvern, Mills county, and purchased the goods for which the plaintiff’s account accrued for the purpose of replenishing his stock. lie does not deny the correctness of the account and makes no defense. The question in the ease arises upon the alleged liability of Rains’ co-defendant Summers.

Apjpeal from Hardim District Court. The defendants were indicted for the crime of nuisance in erecting and using a building for the unlawful sale of intoxicating liquors, and upon conviction, sentenced to pay a fine of $100 each. They now appeal to this court. The facts of the case involved in the points ruled appear in the opinion.

This action was commenced in the Circuit Court to recover damages alleged to • have been sustained by the pla.int.i-ff because of the intoxication of her husband, caused by liquor sold him by said Hiney. The plaintiff asked that the judgment be made a lien on certain real estate owned by the defendant Etzell. There was a trial by jury; verdict and judgment against Hiney, but the jury found in favor of Mrs. Etzell in respect to the lien claimed.

Thr; defendant was indicted for the murder of Margaret Graeser, committed in the perpetration of robbery and burglary, and upon conviction was sentenced to the penitentiary for life. He now appeals to this court.

Ti-ie plaiutiif claims to be tbe owner of an undivided interest in 1,280 acres of land in Franklin county, and by bis petition demands partition thereof.

This is an action at law for the possession of eighty acres of land of which the plaintiff claims to be the absolute owner. The defendants admit that they are in the actual possession of the land, and they deny that the plaintiff is the owner or entitled to the possession thereof. The cause was tried to a jury. The plaintiff introduced the following evidence: 1.

Plaintiff recovered judgments against B. Quigley and Charles Wilson for injuries sustained by her, on account of the sale by the defendants of intoxicating liquors to her husband, whereby she was deprived of his support and of his society. O’Brien was made a defendant in the action, and the judgments were declared to be a lien upon his real estate which he leased to the other defendants, for the purpose of the illegal sale of intoxicating liquors.

Action against the defendant as constable, upon his official bond, for failure to hold and subject to sale certain personal property which had been seized by him upon execution. The evidence tended to establish the following facts: After the levy the defendant was taken sick, and by reason of his sickness he turned the property levied' on over to one Noacheck, another constable of the same township, who received it, but immediately afterward returned it, to the defendant..

The petition of the plaintiffs was filed on tbe 5th day of June, 1875, and, in substance, alleges that the plaintiffs, James A.… Held: occupied and used for its freight depots, side tracks, switches, etc., in and about the operation of its road; that the said city lots were worth the sum of $25,000, but in view of the fact that the owners thereof were the owners of other city property near thereto, which they knew would be greatly enhanced in value by the location…

This is an agreed case, the object of which is -to have determined whether or riot the plaintiff is entitled to recover certain fees which he as marshal of the city claims to be entitled to; judgment was rendered for the defendant and the plaintiff appeals.

<p> Appeal from MaA'ion Circuit Cow't. </p> <p>The object sought by this action is the partition of' real estate. From the judgment of the Circuit Court the defendant appeals.</p>

This is an action of replevin brought against the defendant 'who is sheriff, to recover certain corn which he .seized upon, an attachment as the property of J. C. Atkins, plaintiff’s son. The corn was planted and cultivated by J. C. Atkins, upon the farm of the plaintiff, and the levy was made in September, while the corn was standing and growing in the field. There was a trial by jury, a verdict and judgment for the defendant, and plaintiff appeals.

<p> Appeal from Ha/rcM/n, District Gowrt. </p> <p>The defendants were indicted for beeping a gambling bouse. Upon a trial by jury, they were convicted and tbe court adjudged that each defendant pay a fine of $50 .and costs, and they appeal.</p>

In November, 1876, the plaintiff commenced an action to recover of the defendant the sum of six hundred dollars upon a promissory note made by defendant, and payable to plaintiff’s order. The defendant answered on November 18, 1876. A demurrer to this answer was sustained. On the 29th day of November, 187 6, the defendant filed his amended answer. A demurrer to this amended answer was sustained.

<p>1. Court: adjournment of term: record entry. Where a judge before the date fixed for holding a term of court directed the clerk by letter to adjourn the term to a later date, whereupon the clerk notified jurors, witnesses and suitors by letter, and published a notice of the adjournment in a newspaper, but no formal adjournment was made by him and no record entry made at the time, it was held that the facts authorized an order for a nunc pro tunc entry of the adjournment upon the record after the beginning of the term, and that a defendant tried and convicted of a crime at such adjourned term could not question the legality of the adjournment without a showing'of prejudice.</p> <p>2. Criminal Law: murder: joint indictment. Evidence considered and held to justify a conviction for murder upon a joint indictment of the defendant with others.</p>

On the 25th of February, 1874, William Dobbins conveyed to S. II. Pbinney, by deed of general warranty, twenty-five feet off tlie north end of lots eleven and twelve, in block seventy-four, in the town of Arlington, Butler county. To secure the payment of the purchase money, Phinney executed a mortgage to Dobbins upon the said real estate, and also upon the south fifty feet of lots five and six, in block seventy-five, in said town.

<p> Appeal from Tama District Cott/rt. </p> <p>The right of the plaintiffs to recover depends on the same facts. The actions were consolidated in the court below, and are presented on a single abstract. The object sought is to recover of the defendant the,amount of a certificate of deposit issued by it to one Bradshaw, a portion of which the plaintiff Streeter claims was assigned to him, and the plaintiff 'Byington claims to have recovered a judgment against Bradshaw, and that he is entitled to recover of the defendant, by reason of certain garnishment proceedings. Trial to the court, judgment for the defendant, and the plaintiffs appeal.</p>

The defendant J ames R. Graham was for many years a dealer in grain at Davenport, Iowa. lie received grain belonging to other parties on storage, and bought and sold on his own account, and in the course of his business he issued from time to time a large number of warehouse receipts.

This is an action for the possession of a certain described tract of land, and for the recovery of damages in the sum of $500 for the use and possession thereof. The action was commenced on the 20th day of August, 1878.

On the lltli day of November, 1876, the defendants were indicted for the crime of nuisance, committed by continuing and using a building for the sale of intoxicating liquors. At the May term, 1877, the defendants were tried and convicted. At the November term, 1877, each defendant was fined $120, and costs. The defendants appeal.

<p>1. Sheriff: salary oe: contract. The board of supervisors of a county may properly fix the salary of a sheriff at the beginning of his term, and when this is done the action of the board, and the rendering of services by the sheriff upon the faith of such action, constitute a contract binding upon the county.</p> <p>2. -: EEES ALLOWED THROUGH MISTAKE: RECOVERY EOR. The double payment by the county of fees and costs to a sheriff, through a mistake of the clerk in twice certifying to bills for the same services, is a ' mistake of fact upon the part of the board of supervisors, and the amount erroneously paid may be recovered.</p> <p>3. Practice in the Supreme Court: abstract. Where an agreed abstract is filed by the parties to an appeal, an additional abstract afterward filed by one party contradicting the former one will not be considered.</p>

v The indictment in this case contains two counts. In the first the defendant is charged with having committed rape upon one Electa Thomas; in the second he is charged with having had carnal knowledge of one Electa Thomas, his daughter, and it is stated that the matters and things charged in the second count are the same transaction charged in the first count.

Action to foreclose a mortgage. Margaret Hagens alone defends. She avers that she is the wife of her co-defendant James Hagens; that a portion of the property covered by the mortgage is their homestead, and that the mortgage, in respect to the homestead, is invalid. There was a decree for the plaintiff foreclosing the mortgage as against the whole property. Margaret Hagens appeals.

'Appeal from IA/wn Cvrcuit Court. The .plaintiff, as the. assignee of Samuel Forker, brings tliis action for tbe recovery of $1,200, for tbe services of Samuel Forker as tbe depnty of Daniel Forker, treasurer of Tama county for tbe years 1874 and 1875.

<p>1. Insurance: construction op policy: description. A policy of insurance was issued by defendant upon certain goods “contained in the one-story frame building situated on the north side of the public square,” etc. The owners removed the goods during the continuance of the policy to another building which answered the same description as given in the policy, where they were destroyed: Held, thatthe building was sufficiently identified in the policy, and the removal of the goods, without the consent of the defendant, was a violation of the contract of insurahce which rendered the policy void.</p> <p>2. -: contract: prooe oe loss. The policy contained the provision that in case of loss the holders should state under oath, in making proof, that the property was contained in the building or premises described in the policy. The plaintiffs not having made such statement in their proofs, it was held that such fact would defeat a recovery.</p> <p>3. -:-: retention op premium. The fact that the defendant received the premium for the whole time would not authorize a recovery by the plaintiffs, the policy being forfeited entirely by their own unauthorized acts.</p>

Action upon a promissory note. There was a verdict and judgment for plaintiff. Defendant appeals. The facts of the case appear in the opinion.

The garnishees, I. Kalback & Son, are indebted for lumber purchased by them in the city of Minneapolis. The plaintiff claims that the garnishees are indebted for the lumber to the defendant, the Minneapolis Lumber Co. The National Exchange Bank of Minneapolis, intervenor, claims that the garnishees are indebted for the lumber to it. The facts are stated in the opinion. The case was referred to a referee, who reported that the garnishees were indebted to the defendant.

The petition states that the plaintiff, in March, 1878, was a “ legal voter and elector,” and that being such he was entitled to vote in a certain ward in Iowa City, in Johnson county, at an election then being held. That defendants were judges of said election, and, against the protest of the plaintiff, required him to submit to an examination touching his right to vote, and required him to take a prescribed oath. .

<p>1. Practice: evidence: juey. Whether or not certain admissions previously made by the prosecuting witness in a criminal trial, contradictory to his testimony, would have the effect to impair his credit as a witness, was held to be a question for the jury.</p>

<p> Appeal from, Geda/r District Gomt. </p>

The defendant E. Kempmeier as road supervisor,.and his co-defendant L. A. Spelmier as assistant, entered upon the plaintiffs’ premises and took down the fence for the purpose of opening what they claimed was an established highway. The plaintiffs deny the existence of such highway, and aver that the defendants entered .without right; and they bring this action to recover the damages sustained by them, by reason of the alleged wrongful act of the defendants.

• This is a proceeding.in the probate court to charge defendant, as administratrix, with the value of a “ paid up” policy of insurance held by the intestate upon the life of another. The Circuit Court rendered judgment for defendant; the plaintiff appeals.. The facts of the case are stated in the opinion.

Action in chancery to set aside a decree of foreclosure of a mortgage, and the mortgage itself. The Circuit Court sustained a demurrer to the petition. Plaintiff appeals.

The following information against the defendant was filed before a justice of tbe peace: “State or Iowa 1 “Henry Mohr. ) “ The defendant is accused of tbe crime of keeping intoxicating liquors witb intent to sell. “Eor that tbe defendant, on tbe 26th day of July, A. D. 1879, at tbe town of Victor, Hartford township, Iowa county, Iowa, did bare in bis possession certain kegs, bottles and barrels of intoxicating liquors for tbe purpose of sale in his saloon building in Victor,…

Action on a promissory note executed by five persons, all of whom were made defendants. The note provided for a reasonable attorney’s feo.

Action in equity to quiet title to part of a lot in the city of Burlington, and to cancel- a sale thereof under a certain trust deed. There was a demurrer to the petition, which was sustained. Plaintiffs elected to stand upon the petition, and the court thereupon rendered a judgment against them for costs. Plaintiffs appeal.

Action in equity to set aside a deed executed to the defendant by the plaintiff’s father, Alexander Pollock, who has, since the execution of the deed, died- intestate. The petition avers that the deed was without consideration; that it was obtained by undue influence, and that the grantor, at the time of its execution, was insane. The answer is a general denial. There was a decree for the plaintiff, and the defendant appeals. „

In die year 1876 Ambrose Gleed made an assignment of all his property for the benefit of .his creditors, to the appellant. Before the assignment he had executed a mortgage to the plaintiff Brooks upon certain of his real estate. Brooks foreclosed his mortgage, which-amounted to over $3,000, and in February, 1875, the mortgaged property was sold on special execution for $5,500, Brooks being the purchaser. .

The defendant, on the 80th day of May, 1877, employed and used hacks to carry passengers from the terminus of its street railway, in tlie city of Dubuqne, to Linwood Cemetery, in said city. It is claimed that the plaintiff, in attempting to alight from one of these hacks, fell in consequence of the. breaking of the guard or handle of the steps by means of which she was assisting herself to alight, and sustained severe injuries.

Action for damages alleged to have been sustained by reason of a nuisance committed in the use of a certain building as a slaughter-house. The building in question is in the city of Fort Madison, and is located about one hundred and eighty-seven feet from the plaintiff’s residence. The defendants admit the use of the building for a slaughter-house, but deny that it constitutes a nuisance. There was a trial by jury and verdict was rendered for the defendants.

<p> Appeal from Delaware Circuit Gou/rt. </p> <p>The defendants, husband and wife, conveyed, by deed absolute on its face, certain real estate to the plaintiff. The object of this action is to recover the amount of riioney which con-1 stituted the consideration of the conveyance, have the same declared a mortgage, and to foreclose. There was a trial to the court, and the relief asked by the plaintiff having been granted, the defendants appeal.</p>

Action to set aside a deed of three hundred and sixty acres of land, made by the defendant Michael Dignon to the defendant John Dignon. The plaintiff is the owner of a judgment against Michael, for the sum of $1,259.1G, rendered Feb. 27th, 1877. In March, 187G, Michael conveyed all his real estate not exempt from execution, being three hundred and sixty acres, to his son John.

'Appeal from Harrison District Oowrt. Action in equity to set aside a certain conveyance of real estate. The plaintiff, Eliza J. Curl, holds a certain judgment rendered in favor of her intestate, J. R. Curl, against the defendant Andrew Donaldson. The object of the action is to enable the plaintiff to subject to the payment of the judgment certain real estate formerly owned by the judgment debtor, and afterwards conveyed by him to his son J. II.

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

. This is an aetioii in equity for the recovery of an undivided interest in the southeast quarter of section thirty-three, township number eighty, range three. The plaintiffs, the heirs of Eobert Hume, claim an undivided -thirty-five acres-of said land. The other plaintiffs, the heirs of Parker Long, claim an undivided forty acres of' said land. All of the plaintiffs claim under- the will of Eobert Long, deceased. The court granted the plaintiffs the relief prayed for.

Appeal from, Butler Circuit Court This is an action for the recovery of the value of a crop of flax, raised by the defendant Francis Parker, upon land mortgaged by him to the plaintiff, after the foreclosure of the mortgage, and the sale of the mortgaged premises to the plaintiff at judicial sale, the defendant Parker continuing in possession of the premises. The cause was tried to the court, and judgment was rendered for the defendants. The plaintiff appeals.

The defendant was indicted, tried, convicted and sentenced for the murder of Jacob Odentbal, and he appeals to this court for a reversal of tbe judgment against him. Tbe facts of tbe case appear in tbe opinion.

The defendant was indicted for uttering and publishing as true a certain false and forged promissory note. He was tried, convicted, and sentenced to the penitentiary, and appeals from the judgment against him.

The plaintiff’s intestate was killed by being run over by an engine on the defendant’s road, and this action was brought to recover damages therefor. There was a trial by jury; verdict for the plaintiff, and a new trial granted on motion of the defendant. From this the plaintiff appeals. At a proper time the defendant moved the court to direct the jury to return a verdict for it. This was overruled; and from this the defendant appeals.

Action at law to recover tbe possession of certain lands in Mills county. Tbe cause was tried by tbe court without a jury, and judgment rendered for tbe defendants. Plaintiff appeals. Tbe facts of tbe case are stated in tbe opinion.

This action was originally brought against J. B. Fletcher and the defendant Yandusen to recover the sum due upon a promissory note. Fletcher made no appearance, and died pending the action. The defendant Clara Fletcher, who is administratrix of his estate, was substituted as a defendant.

■ Action upon a policy of insurance. The canse was tried by the court without a jury, and judgment was rendered for plaintiff; defendant appeals. The facts of the case appear in the opinion.

Christopher Stodgiiill was the owner of a farm of some four hundred and eighty acres in Wapello county. Part of said farm consisted of a tract of twenty-nine acres of creek or pasture land. The defendant’s right of way for its railroad was located along the north line of said tract. The natural channel of North Avery Creek ran across the right of way upon said tract, meandered through it, and recrossed the north line of the land, and the right of way.

The appellee contests the election of appellant to the office of recorder of Jasper county. At the October election, 1878, the parties were candidates for the office of recorder of the county. The appellee received twenty-five hundred and twenty-three votes, and the appellant received twenty-six hundred and twenty-five, being a majority of one hundred and two.

Action at law. The petition alleges that defendant is the owner of a certain lot in the city of Keokuk; that a sidewalk along the street upon which the lot is situated became and continued for a long time out of repair and in a dangerous condition; that one Charlotte Stanwood, while passing upon the sidewalk, in the exercise of due care, incurred great bodily injuries by a fall caused by the dangerous condition of the walk, and that in an action against the city she…

Action on a promissory note before a justice of the peace; judgment was rendered for plaintiff for two hundred and forty-seven dollars and sixty cents; also, for twenty-two and 36-100 dollars attorney’s fee and costs. The defendants sued out a writ of error from the Circuit Court, where the judgment of the justice was affirmed, and the defendants appeal.

Action in equity to restrain the defendant, who is county treasurer, from collecting certain taxes. Upon a- trial the court below made the following special findings of fact: “ 1. That in the year 1877 (and for along time prior thereto) the plaintiff was a resident of the city of Council Bluffs, and a tax-payer. “ 2.

Appeal from Fra/nldim Circuit Court. Application by petition to vacate a judgment, and for a new trial. From the ruling made the defendant appealed.

This original petition in this case was filed July 20, 1877. Á substituted petition was filed May 22, 1878.

.Action in chancery to foreclose a mortgage. There was a decree of foreclosure which provides for the priority of liens' held by the parties. The plaintiff and two of the defendants appeal. The facts of the case appear in the opinion.

<p>1. Practice: judgment: succession of judges. Where a cause was heard in vacation and a written decision filed by the judge, whose term of office expired before the next sitting of court, it was held competent for his successor 'to cause a formal decree to be entered in accordanhe with such decision, without further hearing.</p>

<p>1. Contempt: failure to obey order: showing in excuse. In answer to a citation to show cause why he should not bo punished for contempt in refusing to comply with an order of court, a party may show that a compliance with the order was impossible, although he took no appeal from the order, and in 'no way sought to impeach its correctness.</p>

A writ of error was issued from the Circuit Court to a justice of the peace, upon the application of plaintiff, against whom judgment had been rendered in this case, and upon return thereof the judgment of the justice was affirmed. Plaintiff appeals. The facts of the case are stated in the opinion.

Action in chancery to enjoin defendant Guthrie, who is treasurer of Carroll county, from issuing a tax deed to defendant Harding, the purchaser of certain lands at a tax sale made in 1875, for the taxes of 1870. Upon a trial of the cause on the merits, a decree was entered granting the relief claimed. The defendants appeal. The facts of the case appear in the opinion.

Action to replevy a mare alleged to be worth $99. The petition avers that the plaintiff is the unqualified owner of the mare, and entitled to the immediate possession of her: that the defendant falsely pretended to have entered into a contract of exchange whereby the defendant gave the plaintiff a horse for the mare; that the plaintiff tendered the horse to defendant and demanded a return of the mare, which was refused.

The defendant Wyllis recovered a judgment against the plaintiff. The latter filed a petition asking for a new trial. Issue was joined, and the relief asked was granted. From this judgment the defendant appealed. The judgment was reversed. Upon filing the procedendo and opinion of this court in the court below, the defendants moved for judgment in their favor in accordance with the procedendo and opinion of the Supreme Court. This was overruled, and the defendants appeal.

Action to quiet title to a quarter-section of land. In 1861 the title to the land was in one Stoekdale. In that year he executed a deed of the land to the plaintiff. Afterward he executed a deed of the land to one ITohbs, through whom the defendant claims title. Upon the trial the plaintiff introduced in evidence his deed from Stoekdale, hut the same did not appear to have been recorded.

<p>1. Landlord and Tenant: lease: notice to quit. At the expiration of the term of a lease the tenancy ceases, and a lessee holding over, unless after the termination of the lease he has been allowed by the landlord to plant a crop, is entitled to only the three days notice to quit provided for by section 3611 of the Code.</p>

Action upon two promissory notes. There was a verdict and judgment for defendants. Plaintiff appeals. The facts of the case are stated in the opinion.

Action at law. The cause was tried to a jury, and upon special findings a judgment was rendered for plaintiffs. Defendants appeal. The facts of the case involved in the questions decided by the court appear in the opinion.

Action upon a policy of insurance. The defendant alleges that the plaintiff was in default at the time of the loss by reason of the non-payment of an installment of the premium. For a jiortion of the premium the company had taken the . plaintiff’s note, whereby he had obligated himself to pay the company three dollars upon the first day of Nov., 1876, and the same amount upon the first day of November in each of the three succeeding years.

The plaintiffs, Langford & Orton, are judgment creditors' of tbe defendant, tbe Ottumwa Water Power Go. As such they garnished upon execution the defendant S. W. Summers, and lie was notified to appear' and answer as garnishee on the 2nd day of the March term, 1877.

The petition states that the plaintiff is the owner of a certain parcel of real estate fronting on Commercial street in said town; that in 1870 the defendant established a grade on Commercial street and caused a survey to be made and stakes set indicating such grade, and erected sidéwalks along said street past plaintiff’s premises in accordance with such grade, . and passed an ordinance establishing the same, but it never was recorded, ánd has been lost or mislaid; that the…

Court. Action at law. Upon a demurrer to the petition judgment was rendered for defendant; plaintiff appeals. The facts of the case appear in the opinion.

Action to recover the value of certain sewing machines, delivered to the defendant Stiles, agent of the plaintiff, and for. which he agreed to account. The plaintiff claimed the defendants were indebted to it, on account of machines so delivered, in the sum of three hundred and sixty dollars, or thereabouts. The defendants denied tbe allegations of the petition and pleaded payment. Trial to tbe court, and judgment for tbe plaintiff - for fifty-five dollars and costs.

<p> Appeal from Diclwnson Circuit Cowrt. </p> <p>The plaintiff brings this action in equity to quiet her .title to eighty acres of land. The defendants claim the land under a sheriff’s deed, executed April 6, 1878. The court granted the plaintiffs the relief prayed. The defendants appeal. The material facts are stated in the opinion.</p>

It is averred in the petition that the defendant, is the owner of a two story building in Eldora, Hardin county,- which is used as a court-house, and in the upper story of which the sessions of the District and Circuit Courts are held. That on the 15th day of October, 1878, the plaintiff was in attendance as a witness upon a night session of the District Court in said building.

The plaintiffs filed in the Polk Circuit Court a petition as follows: “Paragraph 1. Plaintiffs state that they are partners, doing business under the firm name of Silverman, Lindauer & Co.; that said Isaac Kuhn, one of the above named defendants, is indebted to them in the sum of $787.59, for goods and merchandise sold and delivered by plaintiffs to defendant Isaac Kuhn. “Par. 2.

The plaintiff brought this action in equity to quiet his title to certain eighty acres of land. The defendant set up title in himself to the land.

<p>1. Bes Adjudicaba: co-defendants: action to quiet title. Where, in an action to quiet title, two defendants answered separately, each claiming title in himself, and the court’upon the trial found that the property was owned by one of such defendants, and entered a decree quieting the title in him as against the plaintiffs, it was held that such decree was also an adjudication of the question of title as between the defendants, and constituted a bar to any future claim to the property against the successful party, or those claiming through him, by his co-defendant.</p>

The defendant Amelia H. Slonaker is the widow of L. M. Slonaker, deceased. The plaintiffs, Erank Harshman and Henry Singer, are creditors of the estate of L. M. Slonaker. They complain of an allowance made to the widow for her support, and also of a purchase made by her at her own sale of certain real property belonging to tbe estate. Tbe allowance made was $800. Tbe plaintiffs filed a petition for reviewing and reducing tbe same, on tbe ground that it was excessive.

Action in chancery to subject certain property held by defendants Henrietta and John*C. Lightner to a judgment against the other defendant, Henry E. Lightner. Upon a trial on the merits in the District Court, plaintiff’s petition was dismissed. He appeals to this court. The facts of the case appear in the opinion.

Action in equity to restrain the' defendant, who is treasurer of Dickinson county, from collecting certain taxes assessed and levied against the defendants. It is averred in the petition that the taxes were levied upon a printing press, type, cases, imposing stone, and-other tools and implements used by plaintiffs in their trade or business as printers, and by the use of which they obtained a livelihood.

Prior to the 23d day of April, 1874, Lars P. Olkjer had a contract in writing with Warrick Price, for the purchase of the S. E. ¿ see. 13, tp. 90, range 35, and had paid part of the purchase price. On the 23d day of April, 1874, Lars P. Olkjer executed his promissory note to the plaintiffs, Fuller, Williams & Go., for $240, and to secure the same executed a mortgage upon the land above described.

Action to foreclose a mortgage upon eighty acres of land. The names of both the defendants are signed to the mortgage, but the name of Even Christopherson does not appear in the granting part.

This action was brought to test the right of the defendants to hold and exex’cise each the office of director of the Independent District of Pleasant Grove, in Olay township, Hardin county. The plaintiff avers that the Independent District of Pleasant Grove has no legal existence. The court found otherwise, and rendered judgment for the defendants. The plaintiff appeals.

There was a reference to the Hon. W. M. Stone, who made a finding of facts, and his conclusions of law were entered as the judgment of the court. The defendant appeals.

Action by ordinary- proceedings to recover tbe value of certain personal property, which it was alleged the defendants had converted to their own use. Trial to the court, judgment for defendants, and the plaintiff appeals.

This is an action for the possession of twenty acres of land, of which the plaintiff claims to be the owner, and from the possession of which he alleges he is unlawfully kept by the defendants. The defendant Joseph Yan Fossen filed an answer disclaiming all interest in the land.

The plaintiffs aver that they were the owners of a certain gray mare, and were deprived of the same by the wrongful acts of the defendants. The action is brought to recover of the defendants the value of the mare. There was a trial without a jury, and judgment for the plaintiffs. The defendants appeal.

L. O. Blanchard, Judge of the Marion Oircwit Ooumt. The plaintiffs presented a jietition to the judge of the court below in which it was alleged that they were tax payers in Liberty township, Marion county, and that a certain tax of five per cent upon the taxable property of said township, levied in aid of the construction of the Albia, Knoxville & Des Moines Railroad was illegal and void, and praying that the defendant Faris, who is the treasurer of the county, be enjoined…

Action for a writ of mandamus requiring the defendants, as members of the board of supervisors of Hancock county, to levy a tax alleged to have been voted in four townships of said county to aid in the construction of the plamtilfi’s road. The petition avers that the clerks of the different elections made and delivered to the county auditor their respective certificates of the elections in due form of law.

The petition alleges plaintiff’s intestate was run over by a train on defendant’s road, and so injured tbat be died, and that tbe accident fans caused by tbe negligence of tbe defend: ant’s employes, without fault on the part of tbe deceased.- Trial by jury, verdict and judgment for tbe plaintiff, and defendant appeals.

This action ivas brought in the Circuit Court to recover against the defendant Parker, as constable, for damages allegecl to have been sustained by the plaintiff by reason of a sale upon execution in favor of one Wilson & McDill and against O. J. and M. F. G. Pitman, of a certain bandwagon alleged to have been the property of plaintiff.

Action to foreclose a mortgage executed to the plaintiffs by the defendant Tatman. Margaret IT. Smith was made a defendant, as claiming some interest in the mortgaged premises. She appeared and set up a tax deed executed to her October 17, 1870. To her claim based upon the tax deed the plaintiffs pleaded the statutory bar. of five years.

<p>1. Divorce: habitual intoxication. The extent to which intoxication must have become habitual, to constitute the foundation for an action for divorce, discussed.</p> <p>2. -: cruel treatment. It is not essential that personal violence should have been used by a husband toward his wife to entitle her to a divorce on the ground of cruel and inhuman treatment: if danger is to be reasonably apprehended that is sufficient, and any course of conduct upon his part which would, have the effect to impair her health constitutes legal cruelty.</p>

Action upon a. promissory note, of which the following is a copy: .“$800. Thayer, Iowa, August 8, 1872. One year after date, for value received, I promise to pay the bearer eight hundred dollars, at Thayer, with ten per cent interest annually after date.

The plaintiff filed its petition against Stadtlander, Derby & Bowers and the Hawkeye Woolen Mills Co., averring that in June, 1877, it made a verbal contract with the first named defendant to furnish fixtures and machinery for a mill situated on certain real estate of which said defendants were lessees, and said machinery and fixtures were used hy them in fitting np and operating a mill on said real estate; that the machinery and fixtures so furnished- were of the value of…

Defendant was indicted and convicted of the seduction of an unmarried woman of previous chaste character, and sentenced to confinement in the penitentiary for the term of one year. He prosecutes his appeal to this court. The facts of the case appear in the opinion. -

This is an action in equity in which it is claimed that a large quantity of land situated in Marshall county, and the legal title to which is in the defendants, Fred. Baum, his wife Eachel D. Baum, aud the Gilman Land and Lot Company, is in equity the property of the plaintiff, and held by said defendants in trust for the plaintiff, upon the alleged ground that said lands were purchased by the defendant Ered.

James W. McKenzie, Jtcdge of the 11th Judicial District. Tiie plaintiff, being in custody of tbe' defendant by virtue of certain “ warrants of commitment ” issued by a justice of tbe peace, applied for and obtained a writ of habeas corpus. Upon the hearing before said judge he was discharged from custody under certain warrants and i-emanded Under others. Both parties appeal.

Action upon a promissory note. The defendant Nicliols denied under oath that he signed said note or authorized anyone to sign it for him, and alleged that his signature was a forgery. There was a trial by jury and verdict and judgment for the defendant. Plaintiff appeals.

The plaintiff being tbe holder of a certificate of deposit sent it to the defendant for collection. Through the negligence of the defendant in not protesting it for non-payment on the proper day, as the plaintiff claims, the indorser was discharged, and this action is brought to recover ■ such damages as the plaintiff sustained by reason of such negligence. Trial to the court, judgment for the defendant, and plaintiff appeals.

Action in chancery to subject certain promissory notes secured by mortgage, and other chattels in possession of defendant, to the claim of plaintiff as administrator, and declare the same to be assets of the estate. The decree grants the relief prayed for as to a part of the property. Both parties appeal.

An information was filed before a justice of the peace, charging that the defendant sold ale, beer,' porter and mixed liquors contrary to the statutes of Iowa, and ordinances of the incorporated town of Eldora. Tbe defendant was found guilty by tbe justice, and judgment rendered against him. Whereupon be appealed to the District Court, where there was a trial, and from the judgment the State appeals.

Action upon an account for' lumber sold to the defendants II. N. Woods & Son, and to establish a mechanic’s lien upon certain property belonging to the defendant The State Insurance Company. Judgment was rendered against Woods & Son for the amount- claimed, to wit: $1,077.62, but a mechanic’s lien was allowed for only $677.62. The plaintiff appeals.

Action upon three wheat receipts, one of which is in the following words: “No. 29. Dysart, Iowa, Nov. 3, 18T4. “ Deceived of S. Everett, in store for account and risk of L. B. Nelson, 5.6|-§- bushels of No. 2 wheat, loss by fire, heating and the elements at owners risk. Wheat of equal test and value, but not the identical wheat, may be returned. “Brown, Doty & Co.” Each of the other receipts imported a similar obligation.

Action by plaintiff as a corporation, upon two promissory notes given for- a threshing machine. The notes were executed to a corporation known as the Fond du Lac Threshing Machine Co., and sold by that company to the plaintiff for value before maturity.

Action at law upon a subscription or contract to contribute to -'the payment for a bridge to be erected at Cedar Napids. There was a verdict and judgment for defendant. Plaintiff appeals. The facts of tlie case appear in tlie opinion.

The plaintiffs filed their petition in the court below praying for a writ of certiorari, directed to the defendants, who are members of the board of supervisors of Emmet county, requiring them to certify up certain proceedings taken by said board in relation to the removal of the county seat of said county, that said proceedings might be annulled, upon the ground that said board acted illegally in ordering an election upon the question of the removal of the county seat at a…

Action to enjoin an execution sale. The property consists of certain real estate in the city of Keokuk. It was formerly owned by Henry Waterman, tlie execution debtor. Waterman executed two mortgages upon it, wbieb mortgages became tbe property of tbe plaintiffs, H. M. Stimpson and B. P. Hambleton. After tbe execution of tbe mortgages tbe defendants S. C. & S. Carter obtained a judgment against Waterman, which became a lien upon tbe property.

' The plaintiffs sold and the defendant purchased of them certain real estate, and the plaintiffs claim the defendant bound himself to pay a certain mortgage thereon executed by them. This the defendant denied, and because the conveyance tendered contained a stipulation to that effect he declined to accept it, and refused to coinplete the purchase. This action was brought to recover damages caused by such refusal.

Action for an injunction to restrain the defendant from enclosing certain land. The land, with other land, was formerly platted as “North Newton,” in Jasper county. Lots were sold out of the plat to various individuals,' and, among others, to the plaintiff. Afterward the owners of a part of the plat, including the defendant, filed in the office of the recorder of deeds an agreement for vacation of that part of the plat owned by them.

Action at law. Upon the petition of plaintiff the cause was removed to the United States Circuit Court. ■ From the order of removal defendant appeals. The facts of the case appear in the opinion.

The plaintiff avers that he was employed by the defendant school district to teach a school for the period of six months for the sum of one hundred and forty dollars; that after he taught nine weeks the board of directors of the defendant school district dismissed him, but did so without complying .with the statute in that respect; that the defendant paid him for what he taught, but that he was damaged by the im-' proper and unlawful dismissal in the sum of ninety dollars.

Appeal from, Monona District Gowrt. Action to recover real estate. Trial to the court, judgment for the defendant, and the plaintiff appeals.

Appeal from Washington CvreuÁt Court Action at law. There was a judgment for defendants; plaintiff appeals. The facts of the case appear in the opinion.

Appeal. from Van Bv/ren District Gourt. The plaintiff 'was in tbe employ of tbe defendant as brakeman on a freight train. On one of' tbe cars composing tbe train there was a ladder for tbe purpose of enabling tbe employes to ascend and descend, and also a “ band bold,” for tbe purpose of aiding them in reaching tbe ladder.

This action was commenced in the Madison District Court January 18, 1877. The petition alleges: “ 1. That on October 8,1868, the defendant L. M. Morton became indebted to plaintiffs in the sum of $905.19, and executed his note to them for said sum, due in sixty days. “ 2. That on September 22, 1876, said note was merged in á judgment in the Madison District Court against said L. M. Morton, for $1,337.25 and costs. “ 3.

J. R. Reed, District Judge. The action was brought to obtain an injunction to restrain a sheriff’s sale. The ground upon which the injunction is sought is that the property had already been offered upon execution and bid in by the defendant company, and that the company should be bound by such bid, and not be allowed to cause the property to be offered again for the same debt.

Action in equity to quiet title to an undivided interest in eighty aeres of land. There was a decree for the plaintiffs. Defendant appeals. The facts appear in the opinion.

Action to recover damages for tbe alleged unlawful sale of intoxicating liquors to tbe plaintiff’s husband, thereby producing intoxication, by reason of which tbe plaintiff* lias been injured in her means of support. There was a trial by jui'y, and verdict and judgment for the defendant. Plaintiff appeals.

Action to foreclose a mortgage executed by E. M. Franks, now deceased, and by his wife, the defendant, Sarah D. Franks. Tbe mortgage covers a large quantity of land in Jones county, including wbat was at the time of its execution, and still is,.the homestead of Sarah D. Franks. She sets up that the mortgage is invalid so far as the homestead is concerned.

On the first day of September, 1876, the plaintiff sold to the defendant seventy-eight acres of land, for which the defendant paid .down the suin of $1,500 and executed three written obligations for the payment of the further sum of $1,561. These obligations are all -alike except as to amount and time of payment.

Buena Vista District Court. Action of replevin. The petition shows that plaintiff is the absolute owner of the property, and that defendant' holds it under a chattel mortgage for the purpose of sale and foreclosure, but plaintiff avers that the mortgage has been fully paid. The answer admits the possession of the property and alleges that the mortgage under which it is held still justly subsists and has not been paid. There was a verdict and judgment for plaintiff.

Action to recover double the value of a horse alleged to have been killed by one of defendant’s engines, at a point on tbe railroad of defendant where it had the right to fence its road. The defense was a denial of any knowledge or information sufficient to form a belief of the truth of the allegations of the petition. There was a trial by jury, and a verdict and judgment for the plaintiff. Defendant appeals.

Action to recover for certain lumber sold and delivered to one Griffin by the plaintiffs, for which it is alleged the defendant agreed to pay. Trial by jury; verdict and judgment for' the plaintiffs, and the defendant appeals.

Action upon a replevin bond. The plaintiff as constable received two execution's, issued upon payments in' favor of' Mentzer Bros., against J. IL and Rachel Taylor, rendered by a justice of the peace. Afterward, and before levy, he received as deputy sheriff an execution issued upon a judgment in favor of one-Dobson, against J. O. Taylor and Joseph Weir, rendered for $261.00, in the Circuit Court. While he held the three executions he levied upon certain personal property.

<p>1. Principal and Agent: termination of agency: tax title. An agent having charge of real estate cannot acquire a tax title thereon as against his principal, and this rule is not changed by the fact that the principal has failed to furnish money to pay the taxes; there must be an unambiguous relinquishment of the agency before the agent can acquire au interest, in the subject of it adverse to that of his principal. Pacts considered upon which it was held that a tax title acquired by agents was held in trust for their principal, and the case distinguished from Eekrote v. Myers, 41 Iowa, 324.</p>

Action to recover damages for a personal injury alleged to have occurred by reason of a defective sidewalk. ' There was a trial by jury, and a verdict and judgment for the plaintiff. Defendant appeals.

<p> Appeal from. Cass CvrcuAt Court. </p> <p>The defendant located its line of railway over certain real estate of the plaintiff. In pursuance of a notice served upon the plaintiff the sheriff of the county appointed commissioners to assess the damages which plaintiff would sustain by reason of the appropriation of a right of way one hundred feet in width over said land. The commissioners met, and assessed the damages at three thousand six hundred and sixty dollars for said right of way, the same being three and one-quarter acres.</p> <p>The defendant paid said sum of money into the hands of the sheriff, and appealed from the award of the commissioners to the Circuit Court. The' record of the proceedings was duly filed in the office of the clerk of said court, and the defendant at the proper time filed a motion for a change of the place of trial to some other county. The application was based upon the alleged prejudice of the inhabitants of Cass county against said railroad company. The. application was in due form, and supported by affidavits as required by statute: The motion was overruled, from which ruling the defendant appeals.</p>

Action for specific performance of a contract to convey land.

<p> Appeal from Dallas Oiretdt Court. </p> <p>Action in chancery to foreclose a mortgage upon an elevator and certain chattels, as a boiler, engine, etc., executed to secure two promissory notes made by Dryden & Berry and payable to plaintiffs. Lee, as the assignee in bankruptcy of Dryden & Berry, intervenes, and, in addition to other relief, asks that judgment be rendered against plaintiffs on account of a note received by plaintiffs from the bankrupts Dryden & Berry. The Circuit Oourt entered a decree canceling the mortgage on the ground that it was given in contravention of, and was fraudulent under, the United States, bankrupt law. The decree dismissed the intervenor’s cross-petition, claiming to recover of plaintiff on account of the note received from the bankrupts. Plaintiffs and Lee, the intervenor, both appeal. The facts of the case, so far as they are involved in the points ruled upon, are stated in the opinion_</p>

The plaintiff alleges tliat he owns real estate and personal property situated thereon; that the real estate is, and for twenty years has been, situated in, and a part of, the civil township of DeWitt, and has not been set-off into the district township of Washington by reason of any streams or other natural obstacles.

Ti-ie plaintiff in this action claimed that on the 19 th day of April, 1862, the board of directors of Troy and Doyle townships detached certain lands named in the petition from Doyle township and annexed them to Troy township for school purposes, and that afterwards certain taxes were levied in said territory and collected by the treasurer, and by biro, paid to tlie defendant and by it appropriated.

Action upon a promissory note drawn payable to the order of II. M. Hale, and signed by the defendants I. N. Selby, I). Webster and T. A. Morrow. The two last signed as sureties, and with the agreement that Selby was to secure the note by a chattel mortgage before lie should deliver it. Eo mortgage was ever executed, nor was the note ever delivered to Hale. It ivas delivered to the plaintiff Howe, who advanced money upon it to Selby, or for bis benefit.

One Mablon B. Hatcher died in Lucas county pn the 26th day of March, 1876, leaving surviving: him, as his widow, Mary K. G. Hatcher, and nine children, to-wit: Eebecca A. Day, Elijah J. Hatcher, Joseph T. Hatcher, and Samuel J.' Hatcher, who are made defendants in this action, and J. G. Hatcher, M. A. Hatcher, W. F. Hatcher, Sarah J. Close and Phebe K. Webster, who, with Mary K. G. Hatcher, are made plaintiffs. -The object of the action is to secure the cancellation of two…

The defendant caused to be constructed a sewer, which, the plaintiffs claim, was insufficient to carry off the surface water, and because of the negligent construction of the sewer water flowed into the plaintiffs’ cellar, causing the damages sought to be recovered in this action. Trial by jury; verdict and judgment for the plaintiffs, and the defendant appeals.

<p>t. Taxation: lands granted to railroad : when they become taxable. Lands which have been earned by a railroad company under a congressional grant, but to which there are conflicting claims, and the title to which is still in the United States, are not taxable.</p> <p>2. -: -: neglect to procdre title. The fact that a month elapsed between the cancellation of an entry upon such lands and the filing of another entry, during which time there was no claim adverse to that of the railroad company, it was held, would not render the land taxable from that time, it not appearing that the company neglected to procure the title during such time for the purpose of escaping taxation.</p>

The plaint ffs allege that they are the absolute owners of. certain land in ITa rison county, Iowa, which was sold for delinquent taxes in 1872, and deeded to the defendant Fletcher Armstrong, in 1876, and that before the execution of the tax deed the defendant Armstrong did not cause to be served a-notice of the expiration of the period of redemption as required by section 894 of the Code.

This action is brought to recover damages for the alleged wrongful suing out of an injunction in an action brought by the C. B. ds M. B. B. Co. and the I. B. L. Co. v. Cmroll County, reported in 41st Iowa, page 153. The plaintiff sues upon the injunction bond, and claims as damages the fees paid attorneys in defending the injunction proceeding. The cause was tried by the court, and judgment was rendered for the defendant. The plaintiff appeals.

Action to recover upon an alleged teacher’s contract, and .also upon an injunction bond. The defendant denies the validity of the alleged contract. The plaintiff, upon the 6th day of May, 1878, commenced teaching one of the schools in subdistrict No. 2, in the defendant district township, and continued three weeks, when she was stopped by an injunction. Her contract purports to have been made with one Eobert Wood, who claimed to be subdirector of the subdistrict.

Action upon a promissory note executed by the defendant to J. O. Hunter & Oo., and purchased by the plaintiffs at an execution sale. The defense goes to only two-thirds of .the note, the defendant claiming that two-tliirds of the note have been canceled and discharged. The note was given by the defendant to J. C. ITunter & Co., in settlement of a balance due from him to them in the purchase of a stock of goods.

<p> Appeal from Greene District Gon/rt. </p> <p>Action to foreclose two mechanic’s liens upon property owned by the defendants Pope and Crouch. The defendants Grupe & Turner were joined as claiming an interest in the property. They appeared and showed that they also were entitled to a mechanic’s lien upon the property, and they averred that it was paramount to one of the claims of the plaintiff. At the November term, 1878, the plaintiff obtained judgment upon each of his claims gainst Pope and Crouch, one being for $726.83, and the other for $1,928. The cause as against Grupe & Turner was conti rued. Afterwards, and before the cause could be tried as against Grupe & Turner, the plaintiff caused executions to be issued upon his judgments, and the property to be sold on each, and he bid in the property upon each for the amount of his judgments. Grupe & Turner filed an amendment to their answer, setting up the • execution sales, praying that they might be allowed to redeem if they should, elect so to do, and otherwise that plaintiff should pay them a gyro rata share of the amount for which the property was sold. The court found and decreed that the plaintiff’s claim for $726.83 was the paramount lien upon the property, the statement for a lien being first filed, that Grupe & Turner were entitled to a lien for $600, and plaintiff upon his second claim to a lien for $2,928, and that the two latter liens attached at the same time, the statements being filed at the same time, and that they were equal. The court accordingly decreed that the sale did not divest Grupe & Turner’s lien, and that in case the premises should remain unredeemed the plaintiff should take them subject to the defendants’ lien, to which decree both parties excepted and both appeal.</p>

B. B. Woodward, as trustee, being the holder of three mortgages upon lot one, and the west twenty-four feet of lot two, in block fifty-seven in the city of Davenport, commenced his action of foreclosure, making George L. Davenport, the mortgagee, and other parties who were interested as lien holders, parties defendant. John S. Davis, one of said defendants, held a mortgage upon the same property, which was junior to the mortgages held by Woodward.

Action to recover rent due upon a lease. One of the defendants interposed an'equitable defense. There was a judgment and decree for plaintiffs; both parties appeal. The facts of the case appear in the opinion.

' On tbe 17th day of October, 1877, tbe plaintiff commenced his action as the indorsee of three promissory notes executed by the defendant to II. L. Iiogaboom. On the 7th of November, 1877, the defendant answered, alleging that the notes were procured through fraud and misrcjn’esentation, and that they were not assigned to plaintiff till long after they became due.

The plaintiff is the owner of two lots in tlie city of Hamburg, upon which there is a dwelling house where she resides. The defendant recovered a j udgnient against the plaintiff upon which he caused an execution to issue, and a levy thereof to be made upon said real estate. The plaintiff instituted this action to enjoin the sale of said property, upon the ground that it was her homestead. There was a decree for the plaintiff. Defendant appeals.

Action for partition of real estate. The plaintiffs claimed to be the owners of the undivided one-half thereof, and conceded in their petition the defendants owned the residue. The defendants pleaded they had paid the taxes on the whole property for a number of years, and they asked judgment for one-half of the amounts so paid. In a reply, among other defenses, the plaintiffs pleaded they were innocent purchasers without notice.

Action to recover an amount of money which plaintiff alleged he deposited with the defendant for safe-keeping, and which defendant fraudulently appropriated to his own use.

Ajppeal from Olinton Ovrcuit Cow't. Action upon two promissory notes signed by tbe defendants Matbias Strutzel, Andrew Peshel and Margaret Strutzel, as makers, and payable to tbe order of tbe defendant Jobn Adam. The notes were transferred by Jobn Adam to tbe plaintiff, and indorsed in blank. Tlie transfer was made after one of tbe notes became due, and before tbe maturity of the other; both of said notes were negotiated at tbe same time, and in one transaction.

Action on a promissory note. The defendant pleaded a failure of consideration, and that the note was not the property of the plaintiff. Trial by jury, verdict and judgment for tlie plaintiff, and the defendant appeals.

This is an action in equity, the object of which is to cancel a mortgage upon, certain real estate, upon the alleged ground that .said mortgage was usurious, and that a sum equal to the principal secured thereby had been paid. Upon a trial on the merits the petition was dismissed, and the plaintiff appeals. The facts appear in the opinion.

Action to foreclose a mortgage executed by the defendant Tilman Landingham, and purporting to be executed by his wife, the defendant Lydia Landingham. The mortgage covers two forty acre tracts, oue of which constitutes the defendants’ homestead. The defense pertains only to the forty acres which constitutes the homestead, and is based upon the alleged ground that Mrs. Landingham never signed or acknowledged the mortgage.

Ajofeal from, Clinton Circuit Cowrt. Thomas O’Neil, as plaintiff claims, was killed by reason of the operation of a horse railroad owned by the defendants, and this action was brought to recover damages therefor. A demurrer to a portion of tlie answer was overruled, and the plaintiff appeals.

Action upon an attachment bond. There was 'a verdict for the sum of one dollar and judgment thereon for that amount and one hundred dollars’' attorney’s fee. From the judgment for attorney’s fee defendant appeals. The facts of the case are stated in the opinion.

Action of replevin, commenced before a justice of the peace, where a judgment was rendered for plaintiff. Upon an appeal to the Circuit Court a like judgment was rendered, from which defendant appeals to this court.’

Appeal from Mills District Ootort. The defendant was indicted for the crime of robbery, was tried and convicted. He appeals.

Appeal from Muscatine District Court. Dependant war mctieted and convicted of murder in the second .degree. He now appeals to tJih court.

<p> Appeal from PolJc District Court. </p> <p>Action to recover a tract of land in block 15 in Hall’s addition to the city of Des Moines, the tract being thirty-nine feet wide, and one hundred and seventy-three feet long. The plaintiff claims to be the owner of lot one in said block, and that the thirty-nine feet in question constitute the south thirty-nine feet of said lot. The defendants claim to be the owners of the lot in the same block immediately south of lot one: to-wit, lot four. They also claim that the thirty-nine feet in question constitute the north thirty-nine feet of said lot four. They also claim that they have occupied the land in question for more than ten years prior to the commencement of the action, but they do not aver that they have occupied it otherwise than under a claim that it was a part of lot four.</p> <p>The case was referred to a referee, who reported, in substance, that the plaintiff is the owner of lot one, and the defendants of lot four; that lot one includes the thirty-nine feet in question; that the defendants, and those under whom they claim title to lot four, have occupied the thirty-nine feet for a period commencing more than ten years prior to the commencement of (he action, but that they occupied it in the belief that it was a part of lot i'our. Upon these facts, he reported that the plaintiff was entitled to the possession of the thirty nine feet, and recommended a decree accordingly.</p> <p>The defendants filed exceptions to the report, but the exceptions were overruled, and a decree entered in accordance with the report. The defendants appeal.</p>

The plaintiff brings this action as a judgment creditor of the defendant' J. G-. Maurer, to set aside a conveyance of real estate alleged to have been fraudulently made by J. G-. Maurer to the defendant William Maurer. There was a deeree for the plaintiff. The defendants appeal.

<p>Former opinion in this case, 51 Iowa, 215, adhered to.</p>

The defendants pleaded an equitable estoppel. Trial'to the court; judgment for the plaintiff, and the defendants appeal.

Action to recover specific personal property. Trial by jury, verdict and judgment for defendants. The plaintiff appeals.

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

The petition alleges as a cause of action that defendant is the indorser of a promissory note of which plaintiff is the indorsee; that the note remains unpaid, and that it was duly presented for payment at maturity, of which defendant had lawful notice. An amended petition shows grounds for an attachment, which was accordingly issued.

The plaintiff alleges in his petition that, on the 13th day of August, 1874, the defendants were indebted to him in the sum of $366, and to secure the same they executed to him a deed of certain real estate in Wright county. He prays for a decree for the amount due, and for foreclosure. The defendants deny the indebtedness, and aver that the deed was executed to the plaintiff in pursuance of a sale of the property to him, and as an absolute conveyance.

<p>Mistake: banks: transmission of money.</p>

<p>Practice in the supreme court: abstract.</p>

Action in chancery. There was a decree entered at the hearing granting the relief claimed by plaintiff. Defendant appeals. The facts of the case appear in the opinion.

The petition states, in substance, that 'if the plaintiff would use his influence and get the lands belonging to the estate of James Cilruth placed in defendant’s hands for sale, the latter agreed to give the former one-half of all that was made by reason of the sale thereof. That plaintiff performed the contract on his part, and indicated to the defendant a person who would’ purchase said lands.

Action by attachment, upon promissory notes, an account, and to recover damages for the breach of an agreement contained in a lease. The answer admits the execution of two notes, but sets up a counter-claim based upon the violation by plaintiff of the terms of the lease, and wrongful suing out of the attachment, and claims damages thereon. There was a verdict and judgment for defendant. Plaintiff appeals.

<p>Practice in the supreme court: bill of exception*.</p>

Action to recover damages caused, as plaintiff claims, by a horse belonging to him being struck and injured by a train on defendant’s road. Trial by jury; verdict and judgment for the plaintiff. The defendant appeals.

Action to establish a mechanic’s lien on areal estate owned by Lucy M. Clark at the time the improvement was made, but who has deceased. A decree establishing the lien was entered by the District Court, and the defendants appeal.