the lot is to be forty feet wide by one hundred and forty feet long; and said August Zabel, of the second part, is entitled to a clear and warranty deed of the same property here before mentioned as soon as he has the same notes here before mentioned in hand. [Signed] MRS. J. B. NYENHUIS. AUGUST ZABEL."

When this agreement was made plaintiff paid to defendant $65 in money, and delivered to her the notes specified, amounting to $735. He afterwards took possession of the property, made some improvements on it, and occupied it as a home for himself and family until the 3d day of January, 1889, when the dwelling-house was destroyed by fire. Before that time plaintiff paid two of the notes he had given to defendant, amounting to $85, and in- | terest on the remaining notes, to the amount of $45.50. When the agreement was made defendant held a policy of insurance on the house against loss by fire for $750, which had been issued for a term of five years, commencing in January, 1884. After the house was destroyed she collected on the policy the sum of $730. The plaintiff seeks an accounting for the money so collected; asks to have it applied so far as required to the payment of the notes given by him to defendant; demands judgment for the remainder, for the surrender of the notes, and for a conveyance of the property to him. The court rendered judgment in favor of plaintiff for $39.50, and interest thereon at 6 per cent. per annum, from March 14, 1889, and required defendant to surrender the 13 notes in her hands, and to execute to plaintiff a warranty deed for the property, subject to the taxes of 1889. The petition sets out a copy of the agreement, and alleges that the policy of insurance, by arrangement between the parties, was permitted to stand in the name of the defendant, as further security for the payment of the notes given for the purchase price for the benefit of plaintiff, and when it expired the property was to be reinsured at his expense. The answer denies that any arrangement in regard to the insurance was made; denies that plaintiff had any interest in the insurance money collected; and denies that defendant is under any obligation to account for it. She asks, by way of counter-claim, for judgment for so much of the notes now held by her as is due, and for the foreclosure of the agreement. By an amendment to her answer defendant claims that, since the filing of her original answer, she and plaintiff have settled the matter in litigation; that by the terms of the settlement plaintiff executed a deed for the property to her, and received from her a receipt in full for all demands; and she was to deliver the 13 notes in question at a certain office for him, which she has done. She asks that the settlement be enforced. The alleged settlement is denied by plaintiff.

1. This cause was regularly reached for trial in the district court on the 8th day of May, 1890. At that time defendant filed an application for a continuance until the next week, on the ground of the absence of D. M. Lambert, the attorney to whom the care of the case on her part had

been intrusted from its commencer ent. The affidavit alleged that Lambert had a more particular knowledge of the facts of the settlement pleaded and of its terms than any other person; that he had not been subpoenaed because he was the attorney for defendant, and it was supposed would be present if needed; and for the further reason that she relied upon the settlement, and had no reason o believe that it would be denied. The record shows that this cause was set down for trial on the 8th day of May, 1890, under a rule of the court, several weeks before that date. Defendant, therefore, had ample time in which to prepare for trial, but she did not file her amendment pleading the settlement until the day the cause was reached for trial, and shows no diligence whatever to procure the attendance of the witness. His negligence in failing to appear, under the circumstances of the case, must be imputed to her. It was his duty, as her attorney, to have himself present as a witness, if needed. We think the application for a continuance was properly overruled.

2. The evidence as to the alleged settlement shows that it was attempted, but never completed. Plaintiff signed a quitclaim deed to defendant for the premises, and it was understood that his wife would also sign it. But some of the details of the settlement were never agreed upon, and defendant did not comply with its terms on her part. We do not think it was so far effected that it can be enforced.

3. When the agreement of sale had been made, defendant had no interest in the property sold, excepting the right to have it treated as security for the payment of the purchase price. That interest was insurable, and it would be presumed, in the absence of satisfactory evidence to the contrary, that she continued to hold the policy to protect her interest, and not for speculative purposes. But he evidence satisfies us that it was und rstood, and in effect agreed, between the parties to the agreement that the policy of insurance should be permitted to remain in the name of defendant as security for the notes of plaintiff which she held, and which were the measure of her interest in the property.

It is objected that the agreement is silent as to the matter of insurance, a d that parol evidence is not competent to vary or contradict the writing, but that it must be presumed to contain all of the agreement of the parties. In answer to that, it may be said that the petition fully disclosed the facts in regard to the agreement as claimed by plaintiff. It was not in any manner attacked, the defendant contenting herself with denying its averments. The evidence submitted to show the policy was to be held as security and for the benefit of plaintiff, was. verbal. To some of it the objection was made that it was immaterial, but no claim was made that it was incompetent. It was certainly material to the issues presented by the pleadings, and defendant cannot be permitted to urge in this court, for the first time, that it was incompetent.

Objection to evidence must be first made in the trial court, even though not ruled on there. Davis v. Nolan, 49 Iowa, 686. It is the right of each party to know what objection, if any, exists to his evidence when offered, that he may take the steps necessary to cure the defect, if one exists, or to otherwise avoid the objection. The findings of the district court have ample support in the evidence, and the decree is therefore affirmed.

Kellogg v. COLBY et al. (Supreme Court of Iowa. Oct. 19, 1891.) NOTICE OF APPEAL-SERVICE ON CO-PARTY-SUBROGATION TO RIGHTS OF MORTGAGEE.

1. Though Code Iowa, § 3174, provides that, where a part of several co-parties appeal, those appealing must serve notice of appeal on all the other co parties, yet the failure to do this does not defeat the supreme court of its jurisdiction, but it may determine any question affecting only appellant and the adverse party.

2. Where one purchases land subject to a mortgage, assuming payment of the mortgage as part of the price, he cannot, on paying the mort gage, be subrogated to the rights of the mortgagee, and have the mortgage foreclosed as against the purchaser of the land under a foreclosure of a second mortgage.

Appeal from district court, Humboldt county; LOT THOMAS, Judge.

Besides appellant, the defendants are A. J. Parker and Estella B. Fuller. The action is to foreclose a mortgage on land described as "large lot one, in Lathrop's addition to the town of Humboldt, "against H. J. Parker, as debtor, and the other defendants as having an interest therein. Barring one or two other facts that we regard as unimportant, the cause was submitted on the following stipulation of facts: "It is hereby agreed and stipulated by and between all the parties to the above-entitled cause that the following is a true statement of facts, and that the same shall be used as such on the trial of said cause: (1) That on the 5th day of October, 1881, Welcome Ellis was the owner in fee-simple of the premises described in plaintiff's petition, and on that date mortgaged the same to one S. A. Johnson, to secure a note of the same date for $250, with interest at nine per cent. per annum, due October 5, 1886, and that said mortgage was duly recorded on the day of its date, and that Exhibits one and two, respectively, hereto attached, are copies of said note and mortgage, and that no part of the same, principal or interest, was ever paid, except as hereinafter stated. (2) That on the 24th day of February, 1882, said Ellis mortgaged said premises to the defendant E. E. Colby, to secure the payment of a note of $400, with interest at ten per cent., due, $200 thereof January 1, 1883, and $200, thereof January 1, 1884, and that said mortgage contained a warranty against all incumbrance except a mortgage of $250,' and that said mortgage to Colby was duly recorded February 27, 1882. (3) That said Ellis, on the 19th day of July, 1882, sold said premises by warranty deed to Estella B. Fuller for the sum of $750, and said deed was duly recorded on the 31st

day of

day of July, 1882, which deed was subject to the mortgage of $250 to S. A. Johnson, aforesaid. (4) That said E. E. Colby sold and assigned his notes and mortgage of $400 to one Braley, who brought suit for foreclosure of the same in the circuit court of Humboldt county, Iowa, on the 1883, making the plaintiff herein, C. C. Kellogg, and the defendants, E. E. Colby, H. J. Parker, and Estella B. Fuller, and Welcome Ellis, parties defendants, and that such action was had therein that, on or about the 28th of July, 1885, judgment and decree were rendered therein in said circuit court, foreclosing said mortgage against all the defendants therein. (5) That, under and by virtue of said judgment and decree, said property was sold by the sheriff of said county on the 16th of November, 1885, and a certificate of sale issued to E. E. Colby, defendant herein, who purchased the same at said sale for the sum of $650; and on the 17th of January, 1887, the said sheriff made to E. E. Colby, who was still the holder of said certificate, his sheriff's deed of said premises, and the said deed was on the same day duly filed for record and recorded in Humboldt county. (6) That said judgment and decree were never reversed or set aside, and no redemption was ever made from said sale thereunder. (7) That on the 11th of September, 1882, said Estella B. Fuller sold said premises to C. C. Kellogg, the plaintiff herein, by warranty deed, subject to the aforesaid Johnson mortgage, payment of which was assumed by the grantee as part of the purchase price, which was $800, as recited in said deed. (8) That on the 18th of April, 1883, said Kellogg, the plaintiff, sold said premises by full warranty deed to the defendant H. J. Parker. (9) That said deed from plaintiff herein to defeudant H. J. Parker expressed a consideration of $800; that no money was paid at the time of the sale, but that defendant Par. ker gave to plaintiff his several notes and mortgage for the sum of $625, with eight per cent. interest, which are the notes and mortgage sued on herein, and the exhibits attached to plaintiff's petition are copies thereof; and that defendant Parker also conveyed to plaintiff a certain town lot, which in the trade was called $175, but which plaintiff afterwards sold for $100. (10) That the defendant H. J. Parker bas paid to plaintiff interest upon the notes and mortgage sued on herein as follows, to wit: April 10, 1884, he paid $50; October 10, 1884, he paid $25; April 10, 1885, he paid $25; October 10, 1885, he paid $25; April 10, 1886, he paid $25. (11) That said H. J. Parker, on the 14th of June, 1887, sold said premises to E. E. Colby by warranty deed, copy of which is hereto attached, and marked 'Exhibit Five,' and to which reference is made for the recitals and covenants therein contained. (12) That the consideration expressed in said deed from Parker to Colby is $800, but in truth and in fact the only consideration paid, or agreed to be paid, for said conveyance was that Colby should pay the expense of making the same, and that said Colby should pay all claims and costs thereon that should be adjudged

valid, on account of the notes and mortgage given by said Parker to the plaintiff, Kellogg, being the notes set forth in plaintiff's petition, which agreement by said Colby was in writing. (13) That the actual consideration paid by the plain. tiff to the defendant Estella B. Fuller for the conveyance mentioned in paragraph seven hereof was as follows, to-wit: ($150) One hundred fifty dollars was paid in cash at the date of deed; ($350) three hundred fifty dollars was deposited in bank by plaintiff, to be paid when all incumbrance save and except the Johnson mortgage, mentioned in paragraph one hereof, should be removed; and the payment of said Johnson mortgage was assumed by the plaintiff. (14) The plain- | tiff Kellogg paid the said Johnson mortgage at maturity, intending thereby to subrogate himself, and be subrogated, to all the rights of the said S. A. Johnson in and to said note and mortgage, and the property covered thereby. (15) That, upon the conveyance (set forth in paragraph eight hereof) by plaintiff to the defendant Parker, said Parker entered into the possession of the premises conveyed, and remained in the undisturbed possession and use of the same until January 17, 1887; but who has been in possession since that date shall be determined by evidence to be hereafter taken in this cause.

Under the facts thus stated, the plaintif sought either his foreclosure judgment against defendant Parker, or that, if denied, he be subrogated to the rights of Johnson under the mortgage paid by him. Defendant Parker, by way of counterclaim, sought to recover against the plaintiff on his covenants of warranty, because of the Colby mortgage, under which Braley foreclosed, and the sheriff's deed was made to Colby. Defendant Colby pleads, as against plaintiff's claim for judgment of foreclosure or subrogation, his sheriff's deed under the foreclosure sale, and asks to be dismissed, with costs. Defendant Estella B. Fuller pleads that there has been no eviction of plaintiff from the land; that the title of defendant Colby has been conveyed to one A. E. Clark, who now has a perfect title to the land, and tenders the same to the plaintiff. Defendants Colby and Parker deny that the title of the land is in Clark, and not in defendant Colby, and the plaintiff asks that defendant Fuller be required to perfect his title, or that he have his judgment of foreclosure against her, or adequate relief. The district court gave judgment dismissing plaintiff's petition for foreclosure against Parker, and gave to Parker judgment against plaintiff, because of a breach of his covenants of warranty, for $133, decreed the title tendered to Estella B. Fuller to perfect the title in plaintiff void, and gave judgment for plaintiff against Estella B. Fuller for $4,850.89. It further gave judgment subrogating plaintiff to the rights of Johnson under his mortgage, and made the same a lien on the land superior to defendant Colby's title. Defendant Colby appealed.

A. D. Bicknell and P. Finch, for appellant. G. S. Garfield and R. M. Wright, for appellee.

GRANGER, J. 1. There is a motion to dismiss the appeal for the reason that appellant had served no notice of appeal on his co-defendants, Fuller and Parker, under the requirements of Code, § 3174, as follows: "A part of several co-parties may appeal; but in such cases they must serve notice of the appeal upon all the other coparties, and file the proof thereof with the clerk of the supreme court." In Moore v. Held, 73 Iowa, 538, 35 N. W. Rep. 623, it is held that the service of the notice under said section is not jurisdictional. It is also there held that, where there is a failure to serve such notice on all the co-parties, this court has jurisdiction to determine such questions as affect only the appellant and the adverse party.

The only question presented by the appeal is whether or not the land now owned by defendant Colby is liable for the Johnson mortgage, under the judgment subrogat. ing the plaintiff to the rights of Johnson. The judgments of the district court affecting the interests of defendants Fuller and Parker are not appealed from, and hence, as to them, are conclusive, and of such a character that the determination of the question presented by the appeal can in no manner affect them. It is only contended that, if the deed tendered by Fuller to plaintiff was void, "it would destroy all defenses of Parker based on the alleged breach of warranty." But Parker has not appealed, and the decree that the deed is void is conclusive, and we think has support in the record. The motion to dismiss the appeal must be overruled.

2. Plaintiff, by purchasing the land under an agreement to pay the Johnson mortgage as a part of the purchase price, not only took the land subject to the mortgage, but assumed a personal liability to Johnson for its payment. When Colby purchased the land under the foreclosure judgment, the record gave to him notice of this undertaking and obligation on the part of the plaintiff. It is true that Colby, when he purchased the land at the foreclosure sale, had notice from the record that the Johnson mortgage was unpaid, and a prior lien, for which his land might become liable. But he at the same time had knowledge of plaintiff's personal undertaking to pay the debt. As between plaintiff and Johnson, this personal obligation never ceased until the debt was paid. In paying the debt, he simply paid for the land he bought from Fuller, and which he afterwards sold to Parker, with covenants against incumbrances. The title of the land now vests in Colby by virtue of the sheriff's deed. The judgment below in its effect is that, for some reason, plaintiff's obligation to pay the Johnson mortgage became secondary; for the right of subrogation never follows an actual primary liability. Jones, Mortg. § 792; Sheld. Subr. § 26; 2 Pom. Eq. Jur. § 707; 3 Pom. Eq. Jur. § 1212, note 1. Looking to appellee's argument for grounds to sustain the action of the court, it is said that, "the land being the primary fund. and the plaintiff being also personally held for payment, * # * he had the right to pay the mortgage, and be subrogated to Johnson's rights.' Authorities

99

strument is transferred by indorsement to

ing the rule as claimed. It is not a case, as we understand, where the "land is the primary fund" for the payment. Plaintiff's personal obligation was first,-primary,-against which he could plead no excuse; and that obligation existed to the moment he paid the debt. The obligation was entirely uninfluenced by Colby's conduct or situation as to the land.

Importance is attached to the fact that plaintiff paid the mortgage, intending to be subrogated to the rights of Johnson. But the intent su to do could avail him nothing, in the absence of a legal right to be so subrogated. His obligation was not of a character to entitle him to such a right. It will be seen, by reference to the facts, that Parker made to Colby a deed of the land June 14, 1887, and some importance is attached to that fact by appellee; but nothing more need be said than that Colby took nothing by that deed.

The judgments in the case that are now conclusive show that the rights of Parker were lost because of the breach of the covenants of warranty by plaintiff to Parker. Colby, as a consideration for the deed, merely agreed to pay the notes that Parker gave to plaintiff, if adjudged valid. They were adjudged of no force because of the failure of title from the plaintiff to Parker. We are clearly of the opinion that the court erred in subrogating the plaintiff to the rights of Johnson under the mortgage. See, in support of our conclusion, Goodyear v. Goodyear, 72 Iowa, 329, 33 N. W. Rep. 142; Byington v. Fountain, 61 Iowa, 512, 14 N. W. Rep. 220, and 16 N. W. Rep. 534; Massie v. Mann, 17 Iowa, 131; Morrison v. Morrison, 38 Iowa, 73. There are numerous other cases to the same effect. Reversed.

FAWKNER v. LEW SMITH WALL-PAPER
Co. et al.

(Supreme Court of Iowa. Oct. 20, 1891.)
PAROL EVIDENCE TO EXPLAIN WRITING.

Where a written contract stipulates that one party is to deliver to another $800 "in wallpaper, at wholesale price," parol evidence is admissible, in a suit for non delivery of the paper, to show that the parties agreed at the time of making the contract that the wholesale price should be the price then fixed by a printed card of prices which was delivered to the purchaser.

Appeal from district court, Polk county; M. KAVANAUGH, Judge.

Action on a contract binding defendants to deliver wall-paper of the value of $800, on demand. There was a judgment on a verdict for defendants. Plaintiff appeals. Barcroft & Bowen, for appellant. P. F. Bartle, for appellees.

BECK, C. J. 1. The action is brought on an instrument in writing in the following language: "Des Moines, Iowa, July 11, 1887. On demand, I promise to deliver to the order of E. F. Fisher eight hundred dollars (less twenty per cent. discount) in wall-paper, at wholesale price, goods clean assorted stock, out of my store on Fifth street, Des Moines, Iowa. No storage. LEW SMITH WALL-PAPER Co." The in

plaintiff made a demand of the wall-pa. per, and defendants refused to deliver it, and demands judgment for the value of the wall-paper, less the amount of payment in wall-paper made by defendants. With other defenses, the answer pleads that, at the time the instrument in suit was executed, the parties agreed that the wholesale price of the paper should be the prices fixed in a printed card of prices then delivered to Fisher, and that the prices of the paper were in this way fixed by the agreement of the parties. Defendants refused to deliver the paper, except at the prices named in the card. Evidence in support of the defense, showing the agree ment of the parties as to the card prices, and the card, were admitted, over plaintiff's objection, and instructions were given to the effect that such an agreement, if established, was a defense to the action, and required a verdict for defendant.

2. In our opinion, the evidence just stated was rightly admitted, and the rulings of the court that an agreement, to the effect that the wholesale price should accord with the card prices if established, is a defense to the action. The evidence does not tend to vary, change, or modify the original agreement. It is simply a contract supplying evidence to establish the wholesale price; thus in fact fixing a rule whereby the quantity of the paper contracted for may be determined. In no sense does it contradict, alter, or change the terms of the contract. By the agreement in question, the parties settle the meaning of the word "wholesale" as used in the contract. It is in parol, but contracts may be in part parol and partly written. Keen v. Beckman, 66 Iowa, 672, 24 N. W. Rep. 270. We are clearly of the opinion that the rules of the law against the admission of parol evidence tending to prove a different contract, or to vary, change, or modify it, are not applicable to this case. The oral contract in this case simply provides a rule for the interpretation of the language of the written instrument, and dispenses with evidence otherwise necessary to determine the quantity of paper which defendants are obliged to deliver. In our opinion, the rulings of the district court in admitting the evidence in question, and the instructions to the jury, are correct. Affirmed.

plaintiff, and the defendant Bunker appeals.

Laughlin & Campbell, for appellant. J. F. Smith, for appellee.

ROTHROCK, J. The evidence shows that on the 20th day of March, 1889, the defendant Embree executed and delivered a chattel mortgage to the plaintiff upon the property in controversy. The said mortgage was filed for record in the recorder's office of the proper county on the 22d day of the same month. There is no question about the validity of the mortgage. It was given for a full consideration; and for default in payment of the debt, or for any attempt to remove or dispose of the property, the plaintiff was, by the terms of the mortgage, authorized to take possession of the same, and remove and sell it, and out of the proceeds retain the amount of the debt and expenses, and pay the surplus, if any, to said Embree. These provisions of the mortgage plainly implied that the property was owned absolutely by Embree. The fact appears to be that the said Embree had before that, and on the 20th day of February, 1889, executed and delivered to the defendant Bunker a chattel mortgage on the same property. But the last-named mortgage was not filed for record until the 30th day of March, 1889, some eight days after the filing of plaintiff's mortgage. The only question to be determined is which of the mortgages is the prior lien upon the property. Upon the face of the record the plaintiff's mortgage is prior because it was first filed for record. But appellant contends that the plaintiff had notice when the mortgage to it was executed that the property had before that been mortgaged to Bunker. The burden was on the defendant Bunker to establish this alleged fact by a preponderance of evidence. The court below was of the opinion that the defendant failed to maintain the issue. We have carefully examined the evidence, and reach the same conclusion. We need not set out the testimony of the witnesses, nor further elabo rate the case. The decree of the superior court is affirmed.

SORESON et al. v. DAVIS et al. (Supreme Court of Iowa. Oct. 13, 1891.) TAX-TITLES RECORD-ACQUISITION AGAINST COTENANT-TRUSTEES-LIMITATION.

1. Land originally owned by plaintiffs' ancestor was claimed by defendant under a tax title which he had acquired by mesne conveyances. The record of one of the deeds in defendant's chain of title gave the grantee's name as "Christian Temple," while it was "Christian Teufel" who made the conveyance under which defendant claimed. Held, that this mistake by the recorder would not invalidate defendant's title as against plaintiffs, who did not occupy the position of innocent purchasers, misled by the record.

2. A trustee holding the legal title to an undivided one-half of a tract of land can neither severally nor jointly with another acquire a taxtitle adverse to the co-tenants of his cestuis que trustent; and, since he is incapacitated from acquiring such a title, the title of the person taking jointly with him must also fail.

3. The acquisition of a tax-title by a stranger to the tenants in common, and his conveyance of

it to the trustee, gives the latter no title as against the co-tenants of his cestuis que trustent, since his disability to acquire the tax-title in the first instance also prevents him from purchasing it afterwards.

4. Where the records show that the trustee held the legal title to an undivided one-half of the land when he acquired the tax-title, a remote purchaser of such tax-title is chargeable with notice that it is invalid as against the co-tenants of the cestuis que trustent, and the purchaser will not be protected because he became such for value. 5. A deed by the trustee, conveying his taxtitle, is not an ouster of the co-tenants of his cestuis que trustent, so as to set the general statute of limitations (Code Iowa, § 2529) running against them.

6. An action attacking the capacity of the trustee to acquire a tax-title adverse to the cotenants of his cestuis que trustent is not within Code Iowa, § 902, which limits to five years from the date of the tax deed the time within which an action may be brought to recover land sold for the non-payment of taxes.

Appeal from district court, Pottawattamie county; H. E. DEEMER, Judge.

Action in equity to establish and confirm in plaintiffs title to oue moiety in lots 1-3, block 28, and lots 1-10 and 21-30, block 49, in Brown's subdivision in the city of Council Bluffs. Plaintiffs claim such title as the beirs at law of W. D. Brown, deceased, and allege that appellant, Davis, claims to be the absolute owner of the whole title, under certain pretended tax-deeds to defendants John T. Baldwin and G. M. Dodge, and to the firm of Baldwin & Dodge; that, ever since 1857, plaintiffs and their ancestors, under whom they hold title, have owned said lots in common with John T. Baldwin and G. M. Dodge, and their grantees, including defendant Davis, and were tenants in common with John T. Baldwin and G. M. Dodge at the time of the tax sales and deeds to them, and to their firm of Baldwin & Dodge, by reason of which tenancy said deeds convey no title adverse to plaintiffs; that John T. Baldwin and Ġ. M. Dodge, and the firm of Baldwin & Dodge, were the agents of the ancestors of plaintiffs for the payment of the taxes at the time of the tax sales and deeds, by reason of which said sales and deeds conveyed no title adverse to plaintiffs. Plaintiffs proffer payment of all amounts paid as taxes or redemption, and ask that title be confirmed to them in the undivided onehalf of said lots. Defendant F. R. Davis alone appears. He answers, denying the alleged tenancy in common and the alleged agency. He sets out a chain of title to himself under certain tax-deeds and subsequent conveyances, alleges adverse possession since 1873, and that plaintiffs'action is barred, and asks to be quieted in his title to the entire property. Decree was entered in favor of the plaintiffs. Defendant Davis appeals.

L. W. Ross, for appellant. W. T. Smith and J. E. F. McGee, for appellees.

GIVEN, J. 1. There is no question but that W. D. Brown, the ancestor of plaintiffs, died seised of the undivided one-half of the lots in controversy; neither is there any question as to the defendants' chain of title under the tax deeds, except as to a single link. Frank J. Magin and wife,