Volume 71 — Iowa Reports

The defendant, Frank Struble, was jointly indicted with Tboinas Struble and John McBride. They were charged with having broken and entered the dwelling-house of one Dr. ~W. ~W. Ordway, in Monon'a county, and in the night time, with intent to steal and carry away from the house the goods and property of Ordway. They were also charged with having assaulted Ordway with intent to murder him. The defendant, Struble, was tried alone.

Action for the rescission of a conveyance of real estate, 6n the alleged ground that it was obtained by fraud and undue influence, and for a grossly inadequate consideration. The district court entered judgment for plaintiff, and defendant appeals.

Action to recover compensation for services rendered by plaintiff to defendant as a teacher of its grammar school. A demurrer to defendant’s answer was overruled. Plaintiff, standing on her demurrer, appealed.

This is a proceeding in certiorari, to test the legality of the action of the board of supervisors of Dickinson county in establishing a public road across land owned by the plaintiffs. The court below affirmed the action of the board, and the plaintiffs appeal.

Action to recover tbe value of a cow killed at a highway crossing by a train on defendant’s railway, on tlie ground of the faulty construction of tlie crossing, and that tbe train was running at a dangerous speed.' Trial by jury. Judgment for the plaintiffs, and defendant appeals.

This is an action uj>on a policy of insurance against loss by fire. A default and judgment were entered against the defendant on the first day of the term to which the suit was brought. On the second day of the term, the defendant appeared, and moved the court to set aside the default and judgment. The motion was sustained. Plaintiff appeals.

Indictment charging the defendants .Kreiger and Beal with the larceny of “ one set double harness.” Trial by jury. Yerdict and judgment. The defendant Beal appeals.

The plaintiff, being the owner of a judgment against D. K. Garman, caused an execution to issue thereon, and the Des Moines Agricultural Society was garnished as a supposed debtor of Garman. The garnishee answered that it was indebted in the sum of $117. Sarah Garman, the appellant herein, intervened in the proceeding, claiming that the indebtedness from the society was due to her, and not to the defendant in execution.

. Tiie plaintiffs, judgment creditors of John Seney, garnished the defendant L. B. Oarhart as the debtor of Seney. J. M. Hemingway intervened, claiming the funds sought to be reached by the garnishment. The court rendered judgment against the garnishee in favor of the plaintiffs. The intervenor, Hemingway, appeals.

Indictment charging the defendants, Levi Kreiger and Andrew A. Beal, with the larceny of “ one Defiance corn plow,” and other property. Trial by jury. Judgment for the plaintiff, and the defendant Beal appeals.

Action to recover for personal injuries sustained by plaintiff while in defendant’s employment as a locomotive engineer. There was a judgment upon a verdict for plaintiff. Defendant appeals. Tlíis case has before been in this court.. See 65 Iowa, 91.

Action on a promissory note. Defendant S. P. South-wick answered that the only consideration of the note was usurious interest, which plaintiff charged and computed on certain other promissory notes which he held against defendant.

The defendant Leacli obtained from the board of supervisors of Polk county a permit to buy and sell intoxicating liquors for tbe purposes for which such liquors may be sold under tbe statute. He also gave a bond, in tbe form prescribed by tbe statute, with tbe other defendants as sureties. This action was brought for tbe recovery of tbe penalties prescribed by tbe statute for certain alleged breaches of tbe bond.

The plaintiff, as assignee of one Oscar Johnson, brings this action to recover for a personal injury to Johnson. There was a trial to a jury, and verdict and judgment were rendered for the plaintiff. The defendant appeals.

This action involves a controversy as to the right of the defendant Cornelia Thayer to a dower interest in certain real estate owned by the plaintiff. The cause was submitted to the court below upon an agreed statement of facts, and it was held that the plaintiff owned the land free and clear of any claim for dower. Defendant appeals.

<p> Appeal from Fremont Circuit Court. </p> <p>Action in chancery to foreclose a mortgage. There was a a decree for plaintiff. Defendants appeal.</p>

Action upon a policy of insurance. The cause was tried to a jury, and, upon the close of plaintiff’s evidence, the circuit court directed a verdict for defendant. Plaintiff appeals.

This action was brought under section 1539 of the Code to recover, in behalf of the school fund, a statutory penalty for selling intoxicating liquors to minors. A verdict and judgment were rendered for the plaintiff for $200., The defendant appeals.

The plaintiff seeks by this action to recover of the defendant a certain sura of money, of which he claims he was defrauded in a settlement made between the parties, growing out of the assignment of certain land contracts by the plaintiff' to the defendant. The defendant set up a counter-claim, which consisted of a promissory note executed by plaintiff to defendant.

The plaintiff claims that when walking along a sidewalk in the town of Ackley, owing to the defective and unsafe condition of the walk, she fell and was greatly injured. Trial by jury, judgment for the plaintiff, and defendant apjieals.

Action upon a promissory note. There was a trial by jury, wbicli resulted in a verdict and judgment for the plaintiffs. Defendant appeals.

This is a proceeding by habeas corpus. The petitioner, T. J. Reynolds, should have been designated in the title of the case as plaintiff. Upon a trial before the district court, the petitioner was'discharged. Defendant appeals.

Action to recover possession of specific personal property. There was a demurrer to the petition, which was sustained, and plaintiff appeals.

Appeal f rom Marshall District Court. The court below entered an order requiring Boardman, the receiver,'to pay to the clerk of the district court $555.39, and $136.09 interest thereon, which be lield as a reciever in this case, and also directing the clerk to pay this money to Caswell and Meeker, interveners. From this order Board-man, the receiver, appeals.

Action to recover possession of specific personal property consisting of certain cattle. The defendant justified the tak-, ing on the ground that the cattle.were trespassing on his premises,'that- he had distrained them, that he had had his damages assessed by tbe proper authorities, and was entitled to the possession of the cattle until such damages were paid. Trial by jury, judgment for the plaintiff, and defendant appeals.

Action upon a policy of insurance. There was a trial to the court, without a jury, and judgment was rendered for the plaintiff. The defendant appeals.

Action for damages alleged to have been sustained by reason of the conversion of certain personal property. There was a judgment for the plaintiff. The defendants appeal.

Action to recover for a personal injury. There was a trial to a jury, and a verdict and judgment were rendered for the plaintiff. The defendant appeals.

This is an action in equity, involving conflicting claims of the parties to certain real estate. After the issues were made up,.the cause was referred to a referee. The referee heard the evidence, and reported the facts and his conclusions of law to the .court. Both parties filed exceptions to the report. The court modified the report and entered a decree. The plaintiff appeals.

Action by attachment against defendant Rathburn, in which Bothwell was garnished. An issue upon the answer of the garnishee, denying indebtedness to defendant, was in each case tried to a jury. A judgment for plaintiff was in each case rendered against the garnishee upon special findings for plaintiff. The garnishee appeals. The cases were submitted together upon the same abstract and argument.

<p>1. Fire Insuran.ee: condition against incumbrance: violation. A condition in a fire-insurance policy, issued to a firm, that the property should not afterwards be in any manner incumbered, was violated by the execution of a mortgage by one of the partners on his undivided one-third interest in the property, and by a judgment against him which became a lien on his said interest.</p>

This is a proceeding in attachment by garnishment. The defendant Chase is the judgment debtor. The Eirst National Bank of Le Mars is the garnishee. The subject of the garnishment is money in the possession of the garnishee, the proceeds of a promissory note which the bank collected.

Appeals from, Polls Circuit Court. These are action's for the foreclosure of mortgages given ' by Lorenz Aulman and George Aulman to the plaintiffs.' Certain creditors of the mortgagors became parties to the suits by intervention, and they filed cross-bills, in which they claimed that the mortgages were void as to the creditors of the mortgagors.

The defendant McCormick was elected and qualified as justice of tlie peace. The other defendants are sureties on his official bond, on which this action was brought to recover money collected by him as such justice on a judgment upon his docket. The money was received by the justice on the twenty-fourth day of January, 1882, and this action was commenced on the sixth day of July, 1885, and the term of office of the justice expired on the first day of January, 1883.

<p> Appeal from Jasper District Court. </p> <p>This-is an action in equity, and involves tbe question as to •the priority of two mortgages upon certain real estate, this' plaintiff being tbe owner of one mortgage,- and tbe defendant, the First National Bank of Newton, being the owner of the other. The court below held the plaintiff’s mortgage to be the first lien on the land, and the defendants appeal.</p>

Plaintiff brings this action to recover for personal injuries sustained by bim while in the employment of defendant as a fireman of a locomotive running upon defendant’s road. The petition alleges that the injuries were caused by the negligence of defendant in failing to keep its track at the place of the accident in a safe condition, whereby the locomotive upon which plaintiff was employed was thrown from the track, and precipitated down an embankment.

Action to recover specific personal property. Trial to a jury, wbo, under direction of the court, and by consent of t-lie parties, found a special verdict. On such finding tlie plaintiff moved the court for judgment, and the intervenor moved the court to set aside a part of the special findings, because the same were immaterial and against the evidence. The former motion was sustained, the latter overruled, and judgment rendered for the plaintiff. The intervenor appeals.

This action was brought before a justice of the peace, and a recovery had. The defendant appealed, and on his motion the circuit court dismissed the case on the ground that no jurisdiction had been acquired. From this order .the plaintiff appeals.

Plaintiff brought this action to ■ recover án 'amount of money which he was compelled to pay. as surety on a bond on which defendant was principal, and' which was given by him in a proceeding in bankruptcy.. The defendant pleaded as a defense that the action was barred by the statute of limitations. The judgment was for the defendant, and plaintiff appealed.

Appeals from Louisa Gvrouit Court. Action in chancery to restrain defendants, the town of Lettsville and its officers, from opening certain streets and alleys, which plaintiff's aver have been vacated. A motion to dissolve a temporary injunction allowed in the case, made after answer, and after an agreed statement of facts was filed by the parties, was overruled, and thereupon defendants appeal. The causes being alike as to the facts and pleadings, are submitted together.

Defendant resides in Butler county, and he filed a motion in the district court for the removal of the cause to that county, and, that motion being overruled, he declined to plead, and a default was entered against him, and judgment rendered thereon for the amount of the claim, from which he appeals.

<p>■1, Mortgage: payment to mortgagee after transfer of notes: sale of mortgaged premises: liability. Where the mortgagee of land transferred the secured notes before maturity, but did not assign the mortgage, and afterwards fraudulently, and without the knowledge of his assignee, received from the mortgagor, who was led to believe that he still owned the notes, a partial payment thereon, taking,only a receipt therefor, and the mortgagor afterwards sold the land to another, held, in an action by the assignee to foreclose the mortgage, that he was entitled to recover, as against the mortgagor and the land, the whole amount of the notes, regardless of the partial payment so negligently made by the mortgagor.</p>

<p>1. Evidence: secondary: contents of deed: foundation. Where the grantee in a deed and the custodian thereof testified positively that it had been lost, held that this was sufficient foundation for the introduction of parol testimony as to its- contents, without showing that search had been made for it. (Horseman v. Todhunter, 1-2 Iowa, 280> and Iloive Machine Go. v. Stiles, 53 Id., 424, distinguished.)</p> <p>2. Eeal Estate: quitclaim deed: outstanding equities. Tho grantee in a mere quitclaim deed can acquire no rights thereby against outstanding equities which are valid against the grantor. ( Watson v. Phelps, 40 Iowa, 482, and other cited cases, followed.)</p>

<p>1. Sale: •written warranty: evidence op additional parol warranty. Where there is a written contract of sale, an oral warranty of the thing sold cannot be shown; and when there is a written warranty, the vendee cannot show an additional parol warranty. (Mast v. Pearce, 58 Iowa, 579, and Shepherd v. Gilroy, 46 Id., 193, followed.)</p> <p>2. -: conditional warranty: failure to comply. Where the contract' of the sale of machinery required the purchaser, in case it failed to satisfy the warranty, to give written notice thereof to the vendors and their agent, and he failed to do so, held that he could not set up a failure of the warranty in defense to an action for the purchase money.</p>

Action to foreclose a mortgage. After trial upon the merits, plaintiff’s petition was dismissed. He now appeals to this court.

This is an action in equity, in which the plaintiff demands the specific performance of a written contract entered into by the defendant Robert McWilliams, by wbicb be bound himself to convey to the plaintiff the right of way for a railroad over certain land owned by bim. There was ■ a decree in the district court for tbe plaintiff, and defendants appeal. • *

The plaintiffs claim that they are members of the congregation of St. Stanislaus, a parish or congregation of the Roman Catholic faith, of Liberty township, Johnson county, and that in February, 1883, at a meeting of said congregation, they were appointed trustees to receive from defendants a certain trust fund belonging to said congregation; that defendants had received said trust fund as former trustees of said congregation, but had been removed from -their trust for good…

The controversy in'this case is between plaintiff and the defendants Dornewick and Theodore Wiltgen.

Apjpeal from Shelby Girouit Court. The plaintiff is a claimant of damages caused by tbe establishment of a highway through his land. The board of supervisors allowed him $260. From the order he appealed to the circuit court, but did not pay the filing fee by noon of the first day of the next succeeding term, and, on motion of the defendant, the court affirmed the order of allowance, and from that ruling the plaintiff appeals.

Appeals from Clinton Circuit Court. Action iu equity to restrain nuisances caused by the selling and keeping for sale of intoxicating liquors: Temporary injunctions were asked, which were denied, and the plaintiff appeals.

<p> Appeal from Clinton Circuit Court. </p> <p>Action in equity. The relief asked was denied, and the plaintiff appeals.</p>

This is an áction to recover damages for alleged false and fraudulent representations as to the character of a stream of water, and its capacity for water-power, whereon was situated a mill purchased by the plaintiff from the defendants, the purchase having been made on the faith of said representations. There, was a trial to a jury, and a verdict and judgment for the defendants. Plaintiff appeals.

This is an action in equity to restrain the defendants from laying down a street railway track in one of the streets of tlie plaintiff city. Defendant appealed from an order overruling a motion to vacate a temporary injunction.

This is an action to recover attorneys’ fees wbicb plaintiffs claim to be due them from defendants. There was a trial to the court without a jury, and a judgment rendered for the plaintiffs. Defendants appeal.

The defendant Burlingame was elected and duly qualified as clerk of- the district and circuit courts, and this action was brought on his official bond, to recover certain moneys received by him by virtue of bis office, which be failed to pay over to tbe plaintiff. • Trial by jury. Judgment for tbe j>laintifif,'and the defendants appeal.

Appeal from IÁnrí Circuit Court. This is an appeal from a judgment and a decree for the foreclosure of a mortgage upon certain real estate.

Action to recover double tlie value of a cow killed by a train on the defendant’s road. Trial by jury. Judgment for the plaintiff, and the defendant appeals.

Action at law to recover for personal injuries sustained by plaintiff, resulting from a locomotive, operated upon defendant’s road, striking a carriage wherein plaintiff and others were riding; the driver having attempted to cross the railroad track before the engine. There was a judgment upon a verdict for plaintiff. Defendant appeals.

Mandamus to compel the defendant to remove a school - bouse from sub-district No. 1 to sub-district No. 9, in obedience to the action of the board of directors, or to erect the necessary school-house- in sub-district No. 9. ■ There was a judgment in accord with the prayer of plaintiff’s petition. Defendants appeal.

Defendant appealed from an order of the district court setting aside the verdict of the jury, and awarding plaintiff a new trial.

This is a proceeding before a justice of the peace, under Code, §§ 1544 — 1547, providing for the seizure, condemnation and destruction of intoxicating liquors kept for sale in violation of law. The justice rendered a judgment for the destruction of the liquors. Upon appeal, the district court dismissed the proceeding, the court holding that the justice had no jurisdiction of the case, for the reason that the liquors exceeded in value $400.

Action in equity to establish plaintiff’s right to redeem a quarter section of land, and to quiet, in him the title thereto. The circuit court entered judgment for defendants, and plaintiff appeals.

Plaintiff is the widow of Geoi’ge M. Everitt, deceased. The said George M. Everitt at oue time was the owner of a quarter section of land. Before his marz-iage with plaintiff, he conveyed this land to K. Young. After the znarriage of the parties, Young conveyed the land to defendant, who is the son of George M. Everitt by a former marz’iage, and his only heir at law.

The plaintiff seeks by tins proceeding to recover of the defendant $175 for certain work done upon a public highway. An action at law was first brought, a jury was impaneled to try the case, and, after the trial had proceeded for some time the court ordered that plaintiff could proceed no further without amending his petition.

The plaintiff, a citizen of Black ITawk county, seeks by this action to recover of the defendant, for the use of the school fund, the sum of $100 for unlawfully selling beer to one Heizer, who is a person in the habit of becoming intoxicated. The defendant alleges that it is a corporation, and not liable to prosecution for the act complained of. There ivas a trial by jury.

A motion by defendant Becker to vacate and set aside a judgment in this case against him, as well as the other defendants, was, by order of the district court, overruled. From that order he now appeals to this court.

. Plaintiff, brought an action against defendants on a money demand, and'sued out a writ of attachment, on which certain personal property belonging to defendants was seized. There was no controversy as to plaintiff’s demand, but defendants pleaded a counter-claim for damages on the attachment bond for the wrongful suing out of the attackment. On the trial, defendants recovered on the counterclaim, and plaintiff appeals.

<p> Appeal from Guthrie Circuit Court. </p> <p>Action to quiet title. There was a decree for the defendant. The plaintiff appeals.</p>

This is an action upon a promissory note, brought by a fire insurance company. There was a trial by jury, and a verdict and judgment for the defendant. Plaintiff appeals.

These are actions to redeem lands from tax sales after treasurer’s deeds had been executed to the purchasers. The district court entered judgments denying to plaintiffs the right of redemption, and they appealed.

This case involves the question as to the legality of certain fees taxed by the defendant, who is clerk of the circuit court of Clayton county, said fees having been taxed in the course of the settlement of the estate of O. Packer, deceased. The circuit court held that the fees were illegal, and the defendant appeals.

<p>1. Practice: court not boosd by it3 own ruling: illustration. In this case, plaintiffs move! for a continuance on the ground of the absence of a witness, and the court erroneously held that the facts which it was alleged the witness would swear to were material to the issues. Defendants, however, offered to allow the affidavit for a continuance to be read as evidence of what the witness would swear to if present, and the trial proceeded. Afterwards, when plaintiffs offered to read the affidavit, defendants objected on the ground that the facts therein stated were not material, and the courts sustained the objection. Held no error, as the court was not bound to adhere to its erroneous ruling.</p> <p>2. Evidence: admissions of one of two defendants. Evidence that one of two defendants made an admission derogatory to their defense cannot be admitted where the witness is unable to state which one of the defendants made the admission, sines it could not bind the other.</p> <p>3. -exclusion: error without prejudice. Where, in an action on an attachment bond, the jury found only nominal damages, it was at most error without prejudice to exclude evidence offered in mitigation of damages.</p> <p>4. Attachment: action on bond: attorneys’ fees. Where the whole defense in an attachment case tended to show the wrongfulness of the attachment, it was proper, in an action on the bond, to allow attorneys’ fees for services in defending the entire case.</p> <p>5. Practice: right to open and close. Where, npon the pleadings, the plaintiffs had the burden of proof, but by failing to introduce evidence, they shifted the burden upon defendant, the latter had the right to'open and close.</p> <p>6. Instruction: error without prejudice. An erroneous instruction is no ground for the reversal of a judgment which could not have been otherwise had the instruction not been given.</p>

This suit involves the question of the ownership of certain personal property, consisting of iron castings and other articles which were for many years in an old, dilapidated and unused foundry and’ machine-shop. The plaintiff alleges that he was the owner of the property, and in possession thereof, and that defendants forcibly, unlawfully, willfully and maliciously broke open said building, and removed the property therefrom.

The plaintiff executed to the defendant Halstead certain promissory notes, and a chattel mortgage to secure the payment of the same. Halstead transferred the notes to. the Kansas Manufacturing Company. Plaintiff commenced an action in equity against the manufacturing company to restrain it from foreclosing the mortgage, on the ground that the notes had been paid, and averring that the company took said notes with notice of plaintiff’s defense to them. .

This action involves the title to real estate in Wright county. The plaintiff claimed the land under the patent title, and averred that, though the same had been sold for taxes, and a treasurer’s deed executed, yet the period for redemption had not expired, because no projier notice of expiration of redemption had been given. The defendant filed a cross-bill setting up title under a tax sale and deed to one Young, and a warranty deed from Young to the defend, ant.

Action upon three promissory notes executed by Norman & Williams to Winch, and by him indorsed to plaintiff. There was a judgment against plaintiff upon a verdict lbr defendant Norman & Williams, and a judgment against them in favor of the state for the use of the school fund. Both, parties appeal.

Action in equity to compel the defendants to interplead, in order that their respective claims against each other, and against the plaintiff company, may be determined. The facts appear to be that one Weston was at one time the owner of certain shares of stock in the plaintiff company, and the same stood in his name on the books of the company.

<p>‘ 1. Title Bond: foreclosure: tender of deed. No tender of a deed is necessary by the vendor of real estate in order to the maintenance of an action in equity to foreclose a title bond for the collection of the purchase money. In an action at law for the purchase money a different rule prevails. (See opinion for authorities cited.)</p> <p>2. Contract: signing as trustee: parol to disclose capacity: wiio liable. Where one signs a contract as trustee, and there is nothing on the face of the contract to indicate for whom he is trustee, parol evidence is not admissible to show such fact, and he is personally liable. (See cases cited in opinion.)</p> <p>3. Vendor and Vendee: action for purchase money: defense of defective title: burden of proof. Plaintiffs' intestate sold land to defendant, .and gave him a bond for a deed, and put him in possession, and his right of possession had not been questioned. He also furnished him an abstract of title to the land. In an action for the purchase money and to foreclose the title bond, defendants pleaded, not that there was no title to any portion of the land, but, in general, that the title was defective, as shown by the abstract. Plaintiffs on the trial did not trace their title back to the government, by introducing in evidence deeds from their grantors, but simply showed that the land bad been conveyed to the intestate, and that he had been in open, notorious and undisturbed possession for more than ten years. Held that this was presumptive evidence of title, and that the burden was on defendants to show wherein the title, as shown by the abstract, was defective.</p> <p>4. -: -:--•: removal of incumbrance. In such case, a . recovery cannot be defeated on the ground that a portion of the land is encumbered, if the incumbrance is removed prior to the trial; unless there has been a rescission, or such an offer to rescind as entitled the party making it to a rescission at the time the offer was made.</p> <p>5.--: -:--: mortgage to corporation: release,. In such case it is sufficient for the plaintiff to prove that a mortgage on the premises has been paid, without proving a release of record; but where the mortgage was to a corporation, and it was satisfied of record by the secretary and treasurer of the company, held that this was a sufficient release, though not executed in the manner required by the articles of poration for instruments affecting the title to real estate.</p> <p>6. -:--:--: mere possibility of litigation. In such case, a mere possibility that there may be litigation over the title will not defeat a recovery, but there must be a reasonable probability that there will be such litigation. And so, where, after plaintiffs’ intestate and his grantors had been in undisturbed possession for nearly forty years, under a deed with a defective description, he brought an action to correct the defect in his title arising from such error, and notice was served by publication, and the two years allowed by statute for a motion for a new trial had not expired, held that the possibility of the defendants’ applying for and obtaining a new trial was too remote to be considered.</p> <p>7. Judgment: quieting title: irregularities: collateral attack. The failuve of the clerk to mark “filed” and to enter on the appearance docket an original notice showing the acceptance of service by defendants in an action to quiet title, cannot be urged, in a collateral proceeding, against the validity of the judgment, especially where the court has found that the defendants were duly and legally served.</p> <p>8. Action: to quiet title against misdescription: parties. The wives and husbands of the deseendarits of one who has conveyed land by a wrong description are not necessary parties to an action to quiet the title against.such imperfection, on the ground that they have a dower interest in the land; for they have no such interest. (Compare Lea v. Woods, 67 Iowa, 304.)</p> <p>9. Administrator: conveyance of land bought in on mortgage foreclosure. An administrator who buys in land upon the foreclosure of a mortgage belonging to the estafe holds it as personal property, and he may convey it without an order of court.</p> <p>10. Vendor and Vendee: failure of title as to part: rescission or compensation. Where the vendor in a bond for a deed is unable to convey a portion of the land because of a defect of title, but such portion did not constitute an inducement to the purchase, and is so situated as not to detract from the value of the whole tract, compensation, and not rescission, is the rule.</p> <p>11.-: objections to title: when made. Where a purchaser of land under a contract made certain objections to the title as shown by an abstract furnished by the vendor, and thus induced the vendor to expend money in litigation in removing such objections, held that the vendee could not afterwards raise other objections which he knew the vendor could not remove, and then insist upon a rescission of the contract on account of such objections; hut that the vendee must, in such case, present all his objections within a reasonable time after being furnished with an abstract.</p> <p>12. -:--: incumbrance by consent of vendee. Where land was purchased to be used for a town site on a proposed railway, and the persons interested in the purchase were, with one exception, the same as those interested in the railway, and the purchase was made by one who was agent for both the purchasers and the railway company, and after the oral contract for the purchase had been made, and a part of the consideration paid, hut before the bond for a deed had been executed, the same agent procured from the vendor a deed for the right of way for the railroad over the same land, held that the purchasers could not set up such right of way as an incumbrance on the title, for the purpose of avoiding the contract of purchase; and especially is this so in view of the fact that a right of way through the land was necessary to render the purchase valuable for the purpose for which it was made.</p> <p>13. -: time as essence of contract: waiver. Time should sometimes be regarded' as of the essence of a contract for the salo of land, even when it is not so expressly stated, if the object and purposes of the contract so indicate, and it has been so treated by the parties. But it time be regarded as of the essence of the contract in this case, held that ■ it was waived by the vendee by giving the vendor time, after the day fixed for performance, to perfect his title.</p> <p>14. ;--: objections to title: rescission of contract: terms. A. . vendee of real estate under a bond for a deed cannot rescind the- contract on account of imperfections in the title, without tendering back as good a title as the vendor had when the contract was made. In other words, he cannot further incumber or becloud the title, and then tender it back, and demand a rescission.</p> <p>15.---: ACTION FOR PURCHASE money: delay in perfecting title. In an action for the purchase money of land sold under a bond for a • deed, it appeared that there was a delay on the part, of the vendor in perfecting his title, but no right of rescission had accrued to the vendee, and no substantial damage had resulted to him on account of the delay, and he had not been disturbed in his possession of the premises. Held that the vendor was entitled to recover the purchase money with - the stipulated interest.</p>

The plaintiffs each recovered a judgment in justice’s court against the defendant Cosgro. Executions were issued on these judgments, on which one John Huff was garnished as a supposed debtor of the defendant. The garnishee paid over to the officer who held the executions an amount of money sufficient to satisfy both j udgments. The officer thereupon returned the writs, and certified in his return that he had garnished Huff thereon, and that he had received the money from him.

Plaintiff brought an action for damages for an alleged libelous publication. The district court sustained a demurrer to an answer filed by the defendants, and from that order they appeal.

The appeal is from proceedings instituted to ascertain the right of way damages due the plaintiff by reason of the taking of land for the defendant railway company. A sheriff’s jury was called, and the damages assessed. From the assessment the defendant appealed to the circuit court, where a trial was had, and the damages were again assessed. From that assessment the defendant appeals to this court.

Appeal, from Boone Circuit Cou?'t. Action to recover under the statute double the value of a ■ cow killed by a train on the defendant’s road, at a point . where it had the right to fence its track. It is also stated in the petition that the train was carelessly and negligently operated. Trial to the court; judgment for the plaintiff; defendant appeals.

Plaintiee claimed damages for an alleged trespass committed by the defendants iu entering upon certain premises belonging to him, and cutting and carrying away a portion of the crops growing thereon. He also prayed for an injunction to restrain defendants from committing further trespass on the premises. There was a verdict and judgment foi defendants. Plaintiff appeals.

The plaintiff in this action is the widow of Simon B. Paige, deceased.

'Appeal from Pocahontas District Court. Action in equity for the specific performance of an alleged . contract for the sale and conveyance of real estate. The district court denied the relief demanded, and dismissed the petition. Plaintiff appeals.

Action in chancery to quiet the title of certain lands in plaintiffs. There was a decree in the circuit court granting the relief-prayed for in plaintiffs’ petition. Defendants appeal.

This is an action upon a policy of insurance against- loss by fire and lightning. There was a trial by jury, and a verdict and judgment for the plaintiff. Defendant appeals.

This is an action upon an alleged contract for the insurance of a dwelling-house against loss or damage by fire. The cause was submitted to the court below upon the pleadings and an agreed statement of facts. The court determined that the defendant was not liable for the loss, and the plaintiff appeals,

<p>1. Adultery: complaint by wipe: what is not. The mere fact that a wife, in obedience to a subpoena, testifies before the grand jury upon the question of her husband’s adultery, does not constitute a complaint by her against her husband, within the meaning of § 4008 of the Code, which provides that no prosecution for adultery can be commenced except on the complaint of the husband or wife. (State v. Donovan, 61 Iowa, 278, followed.)</p>

This is an action of replevin for certain horses. There was a trial by jury, which resulted in a verdict and judgment for the plaintiff. Defendant appeals.

This is an action in equity to establish and enforce a mechanic’s lien. There was a judgment and decree for the plaintiff. Defendant appeals.

This is an action at law by which the plaintiff seeks to recover of the defendant the purchase price of certain lumber'and materials alleged to have been sold by the plaintiff to the defendant, to be used in the construction of a court house. The defendant denies -that .it purchased any of said lumber and materials of the plaintiff. There was a trial by jury, and a verdict and judgment for the plaintiff. Defendant appeals.

Action in equity to forclose a mortgage executed by defendant B. C. Koons to M. L. Koons, to secure seven promissory notes. The mortgage and notes were assigned by M. L. Koons to plaintiff’s intestate, in payment of an indebtedness, sucb assignment being made after the maturity of the notes. It is alleged in the petition that the defendants Harmon and Madsen assert some claim to the mortgaged property, but that their claims are junior to that of plaintiff.

Action to foreclose a mechanic’s lien. The defendant Joseph Rogg is the owner of the property in question. In June, 1885, he entered into a contract with the defendant Woodside for the construction of a building. Woodside contracted with- the plaintiff to furnish the lumber for the building, with the exception of the doors, sashes, etc., furnished by the Capital City Planing Mill Company. The plaintiff claimed a lien for the entire balance due it, to-wit, $452.61.

<p>1. Practice: judgment on special verdict: error cured. Error, if any, in overruling a motion for judgment on a special verdict, notwithstanding the general verdict, is cured by afterwards sustaining a motion by the same party to set aside the general verdict and for a new trial.</p>

Action on three promissory notes and to foreclose a mortgage. A demurrer to the answer was overruled, and the plaintiffs appeal.

<p> Appeal from Carroll Circuit Court. </p>

The plaintiff seeks by this action to recover damages of the defendant for the alleged wrongful diversion of a stream of water away from his mill. A demurrer to the petition was sustained, and plaintiff appeals.

<p> Appeal from Buena Vista District Court. </p> <p>Action upon a promissory note. There was a judgment, upon a verdict for defendants. Plaintiffs appeal.</p>

The defendant was convicted of the larceny of a sum of money, and sentenced to a term of imprisonment in the penitentiary.

Appeal from Dallas Circuit Court. . Action in equity to set aside a conveyance of real pstate. The relief asked was denied, and the plaintiff appeals.

The plaintiff is the widow of S. I. McCormick, deceased, who died in September, 1883, and left no children surviving •him.

Action to recover damages for personal inj uries sustained by plaintiff by falling into a ditch dug by defendants in a public street. There was a judgment upon a verdict for plaintiff. Both parties appeal.

<p>1. Practice: -waiver of error by proceeding. Where plaintiff’s petition had been dismissed, and he filed an amended petition, which defendant moved to strike from the files, but his motion was overruled, held that he waived the error, if any, in the overruling of the motion, by filing an answer to the amended petition and going to trial on the issues thus raised.</p> <p>2. Verdict: evidence: . private knowledge op jurors excluded.Where the uncontradicted and unimpeaehed testimony of defendant established a good defense pleaded by him to the note in suit, a verdict for plaintiff should not have been allowed to stand on the ground that the jury was justified in rejecting defendant’s testimony upon their personal knowledge of h;s unsavory reputation for truth and veracity.</p>

Appeal from Louisa District Court'. The defendant was convicted of the crime of manslaughter, and sentenced to a term of imprisonment in the penitentiary.

<p>1. Payment: of fraudulent note: recovery: pleading. One who'seeks to recover money paid by Mm on a note, on the ground that the note was fraudulent, must plead and show that the payment was made under a mistake of fact, or that he did not have knowledge of the fraud at the time the payment was made. (Murphy v. Creighton, 45 Iowa, 179, and City of Muscatine v. Keokuk, etc., Packet Co., Id., 85, followed.)</p> <p>2. Appeal: from order refusing new trial. Under §8164, of the Code, an appeal may be taken where the court refuses a new trial, whether jugment has been rendered on the verdict or not.</p> <p>3. Practice on Appeal: prolix record : costs. Where the appellant prints and files the evidence without abstracting it, the costs of the superfluous printing will be taxed to him, even though he prevails on the appeal.</p>

<p>1. "Machanlc’s Lien: prior mortgage: separate sale op improvement: apportionment op proceeds. Where there was a prior mortgage on the farm on which .a new dwelling house was erected, for the materials for which plaintiff claimed the establishment of a ■ mechanic’s lien, and the house was securely built on a stone foundation, and covered a cellar suitable for its purpose, and it was stipulated that the land was not worth enough to pay both plaintiff and the mortgagee, but it did not appear what the land and improvement together were ■ worth, held that the court below did not abuge the discretion vested in it by CJhap. 100, § 9, par. 4, Laws of 1876, in refusing to order the separate sale and removal of the dwelling for the satisfaction of plaintiff’s lien; and that, under the doctrine of German Bank v. Scliloth, 59 Iowa, 316, and Curtis v. Broadwell, 66 Id., 662, the court properly decreed the mortgage to be a first lien on the whole property, and ordered’a foreclosure sale accordingly.</p>

This is an action in equity by which the plaintiffs seek to redeem certain land from a tax sale. There was a decree in the circuit court for the plaintiffs. Defendants appeal.

The defendant was appointed administrator of the estate of James Dunham, deceased, on the eleventh day of January, 1875. On the twentieth day of September, 1882, he filed a report as administrator, and asked that it be approved, and that he be discharged. The plaintiff is a creditor of the estate, and he filed objections to the report. The defendant was cited to appear for examination touching his administration of the estate.

<p>1. Fire Insurance: failure to ray premium note: forfeiture: waiver: agency: fraud. The policy in question provided that the company should not be liable for any loss accruing while any premium note remained overdue and unpaid. The policy would be forfeited unless a premium note was paid by May 15. The insured lived at K., and was postmaster there, but the company did not knowthat he was postmaster. There being no bank at Eh, thecompany, according to its custom in such cases, sent the note, on the 7th of May, to the postmaster for collection. On the 25th of May, the postmaster, in the presence of two witnesses, took the note out of the safe and destroyed it, and put in -its place the amount of money necessary to pay it. On the next day the loss occurred. On the 3d of the following June he wrote to the company enclosing, the identical money which he had deposited in the safe, which the company received and retained in payment of the note. He did not sign his name to the letter, but subscribed himself simply “ Postmaster, K, Iowa.” The company did not at this time know that a loss had occurred. Held—</p> <p>(1) That the policy was forfeited on the 15th of May by the non-payment of the note at that time.</p> <p>(2) That, although the company sent the note to the postmaster ftc; collection, yet, since the postmaster and the insured were identical, the law will not regard him as the agent of the company to make a collection from himself; and that his act in taking payment from himself after the forfeiture of the policy was not binding on the company, and was not a waiver by the company of the forfeiture.</p> <p>(3) That the conduct of the insured amounted to a fraud, from which the law will not allow him to reap a benefit.</p>

This is an action upon an account for goods and merchandise alleged to have been sold by the plaintiffs to the defendant. The defendant denied that the plaintiffs sold any goods to him, or on his credit. There was a trial by the circuit court without a jury, and a judgment was rendered for the plaintiffs. The defendant appeals.

This is a proceeding to compel tlie defendant, the Central t nva Railway Company, to equip, maintain and operate that part of its line of road from Manly Junction to North-wood, in Worth county. A mandatory injunction was ordered by the district court in accord with the prayer of the petition. The defendants appeal.

<p>Appeal from Madison Circuit Court.</p> <p>Action to recover possession of real estate. The facts’ are stated in the opinion. The plaintiff appeals.</p>

<p> Afjpeal from Mills Oirouit Gourt. </p> <p>Plaintiff instituted an action at law on a money demand, and sued out a writ of attachment, which was levied on cer tain personal property as the property of the defendant John Finkin. Thomas J. Finkin filed a petition of intervention, claiming to be the owner of the attached property, and asking that the same be released from the levy. Plaintiff answered this petition, denying that intervenor was the owner of the property, and alleging that his only claim thereto was based on a pretended sale by defendant John Finkin, and that such sale was made for the purpose of hindering and delaying the creditors of defendant in the collection of their debts. There was a verdict and judgment for plaintiff. Intervenor appeals.</p>

<p> Appeal from, Plymouth Gircuit Gou/rt. </p> <p>Action in .equity for the cancellation of a deed executed by plaintiff to defendant, by wbicb he conveyed to her hip interest in certain real estate, on the ground that the conveyance was obtained by fraud and false representations. The circuit court dismissed the petition, and plaiutiff appeals.</p>

This is a proceeding in tbe court of probate to charge the plaintiff, an administrator, on account of certain indebtedness to the estate. There was an order entered to the effect that he should charge himself in his report and account with such alleged indebtedness. From this order he appeals.

Action to recover forty acres of land in Kossuth county. The defendant filed a petition for a removal of the case to. the circuit court of the United States, and the petition was denied. From the order denying the petition the defendant appeals.

Proceedings were had before the supervisors of Dickinson county to establish and vacate certain roads. Plaintiff appealed to the circuit court from an order of the supervisors allowing him damages for locating the road over his lands. In the circuit court a motion of defendant to dismiss the appeal was overruled, and a motion of plaintiff to amend his claim for damages, increasing the amount thereof, was sustained. From these rulings defendant appeals.

These are equitable actions, and involve the validity of a conveyance of a farm of 160 acres, and a chattel- mortgage upon the personal property upon 'the farm. Charlotte Dill, the plaintilf in one action and ■ a defendant in the other, is the wife of David W. Dill. Eisñeld and Schoeneman Bros & Oo. are creditors of David W. Dill. The conveyance of the farm and the chattel mortgage were executed by David W. Dill to Charlotte Dill.

This is an action in equity, by which the plaintiff seeks to reform a written contract between the parties, and to enforce a specific performance thereof. There was a decree in the court below for the plaintiff. Defendant appeals.

This is a proceeding to establish a claim against the estate of John Horton, deceased. The claim is in the form of a promissory note for $2,900. The plaintiff is the widow of the decedent, and was appointed administratrix of the estate. When this claim was presented, a special administrator was appointed to act in the premises. He approved the claim, and filed a report to that effect.

This is an action to recover damages for a personal injury which the plaintiff alleges she received by a fall upon a defective sidewalk upon one of the streets of the town of Shenandoah, defendant. There was a trial by jury, and a verdict and judgment for the plaintiff. Defendant appeals.

Action in chancery to enforce a specific performance of a contract .to convey lands. There was a decree granting the relief prayed for by plaintiff. Defendant appeals.

Action on two promissory notes. The answer admits the execution of the notes, and pleads payment. The. cause was tried to the court without the intervention of a jury, and judgment was entered for the defendants. Plaintiff appeals.

Action at law on a promissory note. Trial to the court. Judgment fos the defendant Joseph Shetler, and the plaintiff appeals.

This is a special proceeding, by which it is sought to strike sut or sever from the incorporated town of Calliope certain territory on which the plaintiffs reside. There was a trial by jury, and a verdict was returned directing the territory in question to be severed from the incorporation. Upon this verdict an order wras made appointing commissioners tc adjust the terms upon which the severance should be made D efendant appeals:

This is an action in equity for the foreclosure of a mort gage. There was a judgment and decree for the plaintiff. Defendant Warren Walker appeals.

This action was brought against the defendant Colien on an account for attorney’s fees, and against the defendants Young & Parrish, on a draft. The defendant Cohen appeared, and filed a motion for the removal of the case as to him from the district court of Decatur county to the district court of Polk county, and for an allowance of his expenses; the motion being based upon the ground that he was a resident of Polk county. The court overruled the motion, to which he excepted.

This is an action in equity, by which it is sought to set aside and cancel a sheriff’s sale of eighty acres of land, part of which is claimed to be the homestead of the plaintiff1. There was a demurrer to the petition, which was sustained, and plaintiff appeals.

This is an action for recovery of damages caused by an alleged trespass to personal property. There was a verdict and judgment for plaintiff, and defendants appealed.

Action in equity to obtain a decree declaring a certain mortgage on real estate, executed by the plaintiff to the principal defendant, satisfied of record, on the ground that it had been paid. The relief asked was granted, and the defendant, Josephine J. Allen, appeals.

The plaintiff and defendant Michael Braham entered into a written contract by wbicb tbe latter agreed to sell to plaintiff, for a specified consideration, the right of way for its railway over certain premises, and to execute and deliver a conveyance of the same when the road' should be located, and the consideration paid.

Action in chancery to determine the question of- priority between two conflicting liens upon lands. The prayer of plaintiff’s petition was granted by the decree, from which defendant appeals.

Plaintiff’s intestate was killed while in the employ of defendant as a brakeman on one of its trains, and this action was brought for the recovery of the damages sustained by his estate in consequence of his death. There was a general verdict for plaintiff for $2,000. There were also certain special findings.

Action to recover the possession of two horses. As to one of them, the plaintiff claimed possession on the ground that the horse was her property, and she 'claimed possession of the other because she was the widow of W. W. Herd. The cause of the detention of the horses was stated in the, petition to be that the defendant was administrator of the estate of ~W. W. Herd, and as such took possession of the horses. Trial by jury, judgment for the plaintiff, and defendant appeals.

The defendant is administrator of the estate of E. S. Perkins. At the time of the latter’s death, he owned a certificate of deposit issued by a bank for $1,000, which money had been received from the United States government as and for a pension granted him.

The petition sets forth that the defendant is already indebted to the full constitutional limit; that the plaintiff is the owner of certain land fronting on one of the streets of the city, and that the city, by its officers, entered into a contract with one McCauley to construct a sewer in said street, and to pay him therefor by assessing the contract price thereof against the adjacent property; that the municipal authorities are about to make said assessment, and charge the…

The defendant was indicted for the crime of murder in the second degree. He was tried and convicted of manslaughter, and sentenced to imprisonment in the penitentiary for one year. He appeals.

Action to set aside a conveyance made to the defendant M. E. Hutchinson of a farm in Davis county.

Action in chancery to foreclose a mortgage. There was a decree granting the relief prayed for by plaintiff. Defendant Hannah Hanson, executrix, appeals.

Ajpfeal from Kossuth District Court. This action is brought by a principal against its agent, to recover damages alleged to have been sustained by reason of neglect of duty by the agent. The plaintiff demurred to the fourth division of the defendant’s answer. The court overruled the demurrer. The plaintiff elected to stand upon its demurrer, and judgment was rendered against it for costs. The plaintiff appeals.

This is an action of replevin, involving the ownership of a stock of boots and shoes.

Action upon a policy of fire insurance. There was a trial to a jury, and verdict and judgment were rendered for the defendant. The plaintiff appeals.

Action upon two promissory notes, and to foreclose a mortgage executed by the defendant ITarry Wolbert, and his wife, Melissa Wolbert, upon their homestead. There was a decree for tbe plaintiff, and the defendants appeal!

<p> Appeal from Carroll District Court. </p> <p>Indictment charging that the defendant seduced one Din? Granhoff. Trial by jury. Yerdict, guilty, and judgment. The defendant appeals.</p>

Tnis is an action upon a bond given by the defendants for ? permit to sell intoxicating liquors. The petition was dismissed upon the motion of defendants. The plaintiff appeals.

<p> Appeal from Shelby Cireuit Court. </p> <p>The facts are stated in the opinion.</p>

<p> Appeal from Linn District. Court. </p> <p>This is an action upon a promissory note. There was a trial by jury, and a verdict and judgment for the defendant. Plaintiff appeals.</p>

<p>1. Guardian: appointment: jurisdiction: domicile. The probate court of the county in which a minor child has its domicile is the court which has jurisdiction to appoint a guardian of its person, though it be not at the time a resident of such county. (Compare Love v. Cherri/, 24 Iowa, 204.)</p> <p>2. Domicile: of minor child : wiiat is change of. The domicile of a minor child is the domicile of its parents, and after the death of its parents its domicile continues, the same until another is lawfully acquired. But where the father was dead, and the mother, shortly before her death, in her will requested a sister residing out of the state to take and raise the child, and the sister accordingly took ihc child out of the state, but assumed no legal obligation toward it, held that the domicile of the child was not changed.</p> <p>3. Guardian: right to custody of ward: effect of parent’s request. Under § 2249 of the Code, a guardian of the person of a child has the same right to its custody as if he were its parent. And where he is not shown to be an unfit person to have such custody, the child will not be taken from him and given to an aunt, though its mother in her will has requested that the aunt take and raise the child.</p> <p>4. Habeas Corpus: custody of child: prime consideration: evidence on appeal. Where the right to the custody of a minor child is involved in a habeas corpus proceeding, the best interest of the child is the first consideration; but the action is regarded as an ordinary one, and, on an appeal to this court, the judgment of the lower court cannot be disturbed unless it is clearly contrary to the evidence as to the best interest of the child.</p>

Appeal from Gedar District Court. The defendant was indicted, tried and convicted of the crime of arson, and he appeals.

■ On tbe eighth day of February, 18S5, a passenger train on defendant’s railway was derailed, as is supposed, by a broken rail, at a point near a bridge over a gully or ravine. When the train went upon tbe bridge, the wheels on one side passed ontside of the guard-rail, and tbe bridge was broken down, and tbe car in which plaintiff’s intestate was riding as a passenger was thrown into the gully or ravine, and she received injuries which caused her death.

The plaintiff is the wife of A. B. Arnold, and the petition in substance states that the defendant D. H. Gotshall unlawfully sold to her husband intoxicating liquors, thereby causing her said husband to become intoxicated, whereby she was greatly damaged; that such unlawful sales were made in certain described premises occupied as a saloon, the legal title to which real estate was in the wife of the defendant, who is also a party to the action.

<p> Appeal from Delaviare Cireuit Court. </p> <p>The facts are stated in the opinion.</p>

The petition states that the plaintiff is tbe widow of Henry Gardner, who died in July, 1883, and who at that time was the owner of certain real estate described in the petition; that the plaintiff is sixty-seven years old, and her husband, when he died, was seventy-two years of age; that, for seven months preceding his death, Henry Gardner had been confined to his bed, and greatly prostrated; that the defendant is thirty-one years old, and had been brought up in the family…

<p> Appeal from Fremont Circuit Court. </p> <p>Action at law. The facts are stated in the opinion.</p>

Tuts is an action in equity by which the plaintiffs, who are tax-payers of the city of Davenport, seek to enjoin,the collection of a tax voted by the legal voters of said city to aid in the construction of a railroad projected by the Davenport, Iowa & Dakota Railroad Company, defendant. Tlie cause was submitted to the court below upon a petition, answer and^reply, and upon certain exhibits and affidavits.

The plaintiff claims damages of the defendant for wrongfully detaining certain goods and chattels from his possession.

Plaintiff sues on a promissory note, which is as follows: “ Endowment Note, Simpson Centenary College. “$500. Indianola, Iowa, July 21, 1869. “Within five years after date, I promise to pay Simpson Centenary College five hundred dollars, for value received, with eight per cent interest, payable semi-annually, at the office of the treasurer of said college, on the first day of January and July of each year.

Action at law to recover $175 for a harvester and binder which the plaintiff claims it sold the defendant. The defendant alleged in his answer that he took the machine from plaintiff’s agent on trial, with the agreement that, if it worked satisfactorily, he would buy the same; that said machine failed to work, and defendant returned the same as agreed.

Appeal fnom Hardvn Circuit Ccnwt. This action was bi’ought by the Chicago, Iowa & Dakota Railway Company, appellant, for an. injunction to restrain the defendants from interfering with the plaintiff’s alleged right of way, and also to restrain them from prosecuting proceedings for the assessment of damages under the statute. The court dismissed the plaintiff’s petition, and rendered judgment in favor of the defendants for costs. The plaintiff appeals.

This is an action at law by which the plaintiff seeks to recover damages of the defendant because its railroad embankment obstructs the natural flow of surface-water, whereby the water stands upon part of plaintiff’s farm, to his injury. There was a trial by jury, which resulted in a verdict and judgment for the plaintiff. Defendant appeals.

<p>1. Tax Sale and Deed: notice to redeem: proof. The holder of a tax-sale certificate, in an affidavit written on the same paper whereon appeared the notice of the expiration of the time for redemption, and the affidavit showing its publication in a newspaper, stated that he was “the holder of the certificate of purchase described in the within notice, and that said notice was served on the within named T. J., in the manner and form as shown by the within and foregoing return.” Held that this affidavit referred with sufficient explicitness to the affidavit showing publication of the notice, and constituted good proof of service. (Compare Stull v. Moore, 70 Iowa, 149.)</p>

In 1880, • J. J. Kennersly was the owner of certain real estate on which was situated a mill, the machinery in which was propelled by water. In December of that year he sold the real estate to A. P. Lee; and, as a large portion of the purchase-money was not paid, Kinnersly and Lee entered into a written contract whereby the former reserved and was entitled to a vendor’s lien on the premises as security for the payment of the purchase-money.

Action on a policy of insurance against loss or damage by fire. There was a verdict and judgment for'the plaintiff, and the defendant appeals.

<p>1. Promissory Note: parol to vary: instance. In an action upon a promissory note made by a husband to his wife’s father, held that it was not competent for the defendant to show that the note was given merely as evidence of an advancement to the wife, and that it was made by the husband because the wife was insane, and the husband received the money in trust for her use and benefit. (Dickson v. Harris, 60 Iowa, 727, followed.) Beck, J., not concurring.</p>

This is an action at law by which the plaintiffs seek to recover of the defendant the value of an old threshing-machine, and the amount due upon certain promissory notes executed by the defendant. There was a trial by jury, and a verdict and judgment for the plaintiffs. The defendant appeals.

Plaintiff is the only child, and defendant is the widow, of George W. Kline, who died in 1875. Defendant converted to her own use the personal property belonging to the estate. She also sold the real estate of which her husband died seized, and received and converted the proceeds derived therefrom. Plaintiff brought this action to recover two-thirds of the value of the personal property and of the proceeds of the- real estate.

The plaintiff, as the assignee of W. A. Jordan & Sons, filed an account in the circuit court sitting as a court of probate, and ashed that the same be allowed as a claim against the estate of Solomon McReynolds. The relief ashed was refused, and the plaintiff appeals.

The plaintiff averred in his petition that he was the unqualified owner of 160 acres of land, and that the defendant railway company condemned 100 feet in width through said land for right of way for its railroad; and that, in constructing the said railroad, defendant entered upon plaintiff’s land on each side of said right of way, and took strips of land, outside the right of way, 50 feet \t-ide by 200 feet long, without any authority from plaintiff, and removed the earth…

Defendant was indicted and convicted for the crime of administering to a pregnant woman a substance with intent to produce a miscarriage, which was not necessary to save her life. He now appeals to this court.

Mandamus to compel the defendants, a part of whom are directors of the independent district of Rock, and the others directors of the district township of Rock, to appoint arbitrators to make an equitable division of the assets of the district township of Rock, held before the organization of the independent district, which covers a part of the territory of the original district township from which it was separated.

Action in equity to modify a judgment, and set aside a sale of real estate thereunder. The circuit court sustained a demurrer to the petition, and from that order plain tiff appeals*

These causes involve tbe same questions, and are submitted upon tbe same abstract and argument. They are special proceedings by which the plaintiffs seek, by a sheriff’s jury, to ascertain the damages to which they claim they are entitled by reason of the construction of a railroad upon certain streets in the city of Algona, upon which streets the plaintiffs own abutting real estate.

This action was brought to recover certain money alleged to be due the plaintiff, Ida McGinness, as guardian of her minor sister, Ella Barton. There was a trial to a jury, and verdict was rendered for the defendant, and judgment was rendered against the plaintiff for costs. She appeals.

Action involving the construction of a will. The judgment of the circuit court being adverse to defendants, they appeal.

<p>1. Appeal: from circuit court: correction of record after abolition of court. Upon the abolition of the cirouit court its records were transferred by law to the district court; and where an appellant from the circuit court desires to correct the record in that court, he should apply to the district court for that purpose. Ex parte affidavits are not admissible.</p> <p>2. Interest: construction of contract. T. was owing D. $3,000, and one clause of a contract between them stated: “T. is to pay D. $1,000 on or before April 1, 1880,” and another clause provided: “ The balance of said sum is to be paid by T. to D. on or before April 1,1881, and interest ii to be allowed to D. accordingly on said $1,000; and the remaining balance to be paid April 1,1881, at the rate of 10 per cent from this date.” Held that the contract provided for 10 per cent on the last payment only, and that, no rate being named for the first payment, it drew only 6 per cent.</p> <p>3. -: stoppage by offer to pay. A me-e statement by a debtor to his creditor that he is ready to pay is not sufficient to stop the accruing of interest. If an actual tender is not necessary, it must at least appear that he has the money, and is in fact ready to pay according to contract.</p>

This is a proceeding, under chapter 8 of the Laws of 1874, for the establishment of disputed corners and boundaries of certain real estate. A commissioner was appointed, who went upon the premises, took testimony and made a survey, and returned his report to the court. The defendants tiled objections to the report, and offered to introduce certain affidavits in evidence, on the hearing of the objections to the report.

Mills District Court. Actions iu equity to cancel certain conveyances from the intervenor to the defendants, and to quiet in plaintiff' the title to the real estate included therein. The intervenor alleged in his petition that the conveyance under which plaintiff claimed the property was obtained by fraud, and he prayed that the same be canceled and set aside.

As the plaintiff claims, she stepped into a hole in tbe tbe street near a sidewalk on which she was walking, whereby she was greatly injured. Trial by jury. Judgment for the defendant and tbe plaintiff appeals.

<p>Appeal from Cass Circuit Court.</p> <p>Action to recover for balance of an account for intoxicating liquors sold and delivered to the defendant. The defendant pleaded certain payments, and also that the contract of sale of a part of the goods was made in Cass county, and of part in Montgomery county, and that the plaintiffs had no permit to sell in those counties, and that the sales 'were illegal. He also pleaded a counter-claim for money paid on account of illegal sales of liquors. The plaintiffs denied that the sales were illegal, and denied that they were made in Cass or Montgomery county. There was a trial to the court without a jury, and judgment was rendered for the defendant, though for much less than he claimed, and he appeals.</p>

<p> Appeal from Pottawattamie District Court. </p> <p>On the twenty-sixth day of September, 1881, a box car standing on a side track in the freight yard of defendant at Council Bluffs took fire, and exploded with such force that it injured certain buildings of the plaintiff, situated about half a mile away from where the explosion occurred. This action was brought to recover damages for the injuries to said building. There was a trial by jury, and a verdict and judgment for the plaintiff. Defendant appeals.</p>

Action at law on an account for goods sold and delivered, and for money paid for the use and benefit of defendants, and at their request. There was a verdict and judgment for defendants, and plaintiffs appeal.

This is an action in equity, involving the title.to a- valuable tract of land in the city of Ottumwa. The plaintiff demands a decree quieting its title to the land. The defendants claim that they are the owners of the property, and that the plaintiff has no interest therein. There was a decree in the circuit court for the defendants. Plaintiff appeals.

Appeal from Gass District Court. Action on a promissory note on which defendant is surety. Yerdict and judgment for plaintiff and defendant appeals.

Action upon a promissory note. There was a judgment upon a verdict for plaintiff for a part of his claim, from which he appeals.

The defendant Alexander- Chisholm is administrator of the estate of William Chisholm, deceased. The other defendants are the widow and heirs at law of said William Chisholm. This action'is upon three promissory notes,- and for the foreclosure of a mortgage securing the same, executed by William Chisholm in his life-time.

The plaintiff, Howard county, made a motion for an order that the clerk of the court be directed to pay over certain money in his hands to the treasurer of the county; the motion being made on the theory that the money in question was due the county for taxes. The court overruled the motion, except as to certain taxes upon real estate. The plaintiff appeals.

Indictment charging that the defendant, by false pretense, obtained the signature of another person to a written instrument. Yerdict, guilty; judgment. The defendant appeals.

Action to recover upon a certificate of membership in the defendant company. There was a trial to the court, and judgment was rendered for the plaintiff. The defendant appeals.

<p> Appeal from Jasper District Gowrt. </p> <p>Action to foreclose a chattel mortgage. Judgment for the plaintiff, and defendants appeal.</p>

District Court. Plaintiff brought this action in equity, to restrain the defendant from constructing a culvert or water-way through an embankment on which the track of its railroad is laid. lie alleges that the opening of said culvert or water-way through the embankment would have the effect to throw upon his premises, which are adjacent to the railroad, a largo amount of surface water, which is drained onto defendant’s right of way from the land lying on the opposite side…

The defendant Kreichbaum is sheriff of Des Moines county, and the other defendants are sureties on his official bond. Plaintiff brought an action to recover the value of his interest in a stock of goods on which he held a chattel mortgage. There was a trial to the court without the intervention of a jury, and the judgment was for defendants. The facts are stated in the opinion. Plaintiff appeals.

Appeal from Hardin District Court. Indictment for larceny. The jury found the defendant guilty, and from the judgment he appeals.

Action at law upon a policy of insurance, to recover the amount insured against loss by fire upon a building and certain contents, owned by plaintiff. There was a judgment upon a verdict for plaintiff*. Defendant appeals.

Action for a personal injury. There was a trial to a jury, and verdict and judgment were rendered for the plaintiff. The defendant appeals.

Appeal f rom Polk Circuit Court. Action in equity to rescind a contract and set aside a conveyance of real estate. Judgment for plaintiff,' and defendants appeal.

Action in chancery to set aside a sheriff’s sale, and a deed executed thereon. The relief prayed for in the petition was granted by the decree of the circuit court. Defendants appeal.

<p> Appeal from Buena Vista District Qourt. </p> <p>Action in equity. Decree for the plaintiff, ' and the defendants appeal.</p>

Action for the recovery of damages caused, as plaintiff alleges, by defendant’s failure to perform its contract to furnish cars at a specified time for the shipment of a Jot of hogs to Chicago. The cause came on for trial at the January term, 1885, of the district court, and, after the parties had each rested, defendant’s counsel filed a motion to direct the jury to return a verdict for it.

Plaintiff, as assignee of a mortgage executed January 9, 1882, due in one year, filed his petition for foreclosure, February 26th, 1885.

Oirouit Court. ' Application by plaintiff for discharge as trustee. The ease was heard and determined by Hon. J. A. Hoffman, as judge of the circuit court. The court held that there was due from the plaintiff, as trustee, the sum of $2,280.87, and ordered that he pay the same.

The defendant was convicted of the murder of one Enoch Johnson, and sentenced to imprisonment in the penitentiary for life, and from that judgment he appeals.

The defendant Sarah J. Rogers was indicted for the crime of resisting an officer. Verdict and judgment were rendered against her. She appeals.

These are actions at law. They involve the validity of a chattel mortgage upon a stock of hardware. The plaintiffs are creditors of the defendant Woodworth, and levied attachments upon the property. The defendant Mather asserted title to the goods under a chattel1 mortgage made by Wood-worth to him. Pending the action, Mather assigned the mortgage to the Grinnell Barb Wire Co., and it intervened and assumed the place of Mathei as a party to the action.

<p>Criminal law: appeal for delay: no appearance nor assignment of error: judgment affirmed.</p>

Action in equity to subject .certain real estate to the payment of a judgment against Amos Elliott. The petition was dismissed, and the plaintiff appeals.

The plaintiff’s action is in the nature of a suit upon an account for work and labor. The defendants are husband and wife, and they filed separate answers. Joseph Mattocks admitted by his answer that the plaintiff had performed work and labor for him, but denied that he was indebted to him therefor. He also set np a counter-claim, in which he demanded damages by reason of the plaintiff having injured and maltreated certain live stock of the defendant while in his employ.

The plaintiff, as widow of Solomon McReynolds, deceased, brings this action inequity against the heirs of the decedent for the purpose of obtaining her distributive share in certain land of which he died seized, and in certain other land, a part of which stands in the name of the defendant M. M. L. MeReynolds, and part in the name of the defendant Marsha Tracy, but which she «avers also belongs to the estate of the decedent.

Action in chancery to enforce the specific performance of a contract to convey lands. After a trial upon the merits, plaintiff’s petition was dis-' missed. He now appeals to this court.

Action upon an alleged contract to pay the plaintiff a debt due from ona . Fuson. There was a trial to the court without a jury, and judgment was 'rendered against the plaintiff for costs. She appeals.

<p>1. Corporations: transfer of stock: entry on books: when necessary. (Fort Madison Lumber Co. v. Batavian Bank et al., ante, p. 270, followed.)</p>

Action on a negotiable promissory note which the plaintiff claims was transferred to him before maturity for a valuable consideration. The defendant pleaded that the note had been obtained by fraud, and that the plaintiff had full knowledge of such fraud prior to and at the time the note was transferred to him. Trial by jury, verdict and judgment for the defendant. A motion for a new trial was overruled, and the plaintiff appeals.

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