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amined. It is enough to say that the views herein expressed dispose of every Affirmed.

for rent. The petition expressly states
that the goods were held by defendant upon
the claims of the Baker Barbed-Wire Com-material question in the case.
pany and the McCormick Harvesting-Ma-
chine Company, and the notice of owner-
ship, which was served on the 10th day of
January, asserted ownership as against
the two last-named parties only. In the
action of L. & H. Goeppinger against Hall
& Co. the defendants therein did not ap-
pear, and on the 25th day of January,
1887, judgment was rendered for the rent,
and a special execution was issued; and
on the 27th day of the same month the
plaintiffs herein filed a petition of inter-
vention in that case, alleging their abso-
lute ownership and possession of the
goods, and they then paid into court the
full amount of the Goeppinger judgment
and costs, and they prayed that they be
subrogated to whatever rights the Goep-
pingers had by virtue of their landlord's
lien, and on the 2d day of February the
said Goeppingers received said money in
full of their claim, and the court, by an
order made on the same day, subrogated
the plaintiffs herein to all the rights be-
fore that held by L. & H. Goeppinger. It
is claimed by counsel for appellant, and
the claim was made in the court below,
that the defendant was rightfully in pos-
session of the goods by virtue of the land-
lord's attachment when this action was
commenced, and objection was made to
the evidence showing the settlement of the
landlord's claim. The objection was over-
ruled. It may be conceded that an action
of replevin cannot be maintained by one
who has no right to the possession of the
property when the action is commenced.
The court below recognized that rule of
law in its instructions to the jury, but, in
view of the peculiar circumstances sur-
rounding the case, the jury was instruct-
ed that, if they found for the plaintiffs as
against the claims of the Baker Barbed-
Wire Company and the McCormick Har-
vesting-Machine Company, they should re-
turn a verdict for the defendant for the
possession of the property under the land-
lord's attachment, and that his interest
therein was one cent. The jury returned
this verdict, and afterwards, on a mo-
tion to retax costs, the court ordered that
all of the costs which accrued up to the
time that the landlord's attachment was
paid should be taxed to the plaintiffs, and
all costs which accrued after that time
should be taxed to the defendant. It may
be that in a strict technical sense the
plaintiffs should have paid the landlord's
lien before commencing this action. But
as the payment was made before any par-
ty in interest was or could have been prej-
udiced, and whatever right the defendant
had in the goods was fully satisfied before
any trial of the main case was had, and
in view of the fact that the plaintiffs at no
time asserted any claim as against the lien
for rent, we conclude that there was no er-
ror prejudicial to the defendant in the rul-
ings of the court last-above recited. The
defendant had no claim whatever to the
goods after the landlord's lien was satis-
fied. There are other alleged errors dis-
cussed by counsel. We do not think they
raise any questions necessary to be ex-
v.49N.w.no.1-5

GRAVES et al. v. MERCHANTS' & BANKERS'
Ins. Co.

(Supreme Court of Iowa. May 25, 1891.) ACTION ON POLICY-PARTIES-INSURANCE-WAIVER OF PROOF OF Loss.

1. Where for a single premium a joint policy of insurance is issued to the owner of a building and to the owner of a stock of goods therein for a stated sum on the building and not exceeding a specified sum on the goods, the two may join in an action on the policy; Code Iowa, § 2545, providing that "all persons having an interest in the subject of the action and in obtaining the relief demanded may be joined as plaintiffs. "

2. Within 30 days after a fire an insurance company sent an adjuster, who took from the insured a statement under oath, covering all the points required to be stated in the proofs of loss except in two unimportant particulars, in regard to which no inquiry was made. The adjuster expressed himself as satisfied, and on receipt of the statement the company requested additional proof as to the value of the goods. Held, that the company had waived formal notice and proof of loss.

3. The value of a stock of goods insured may be testified to by men in the same business, who had been in the store, and casually noticed the stock.

4. The insured having testified generally in regard to the goods on hand at the time of the fire, it is within the discretion of the court to allow leading questions by which his attention is directed to particular classes of goods.

5. Having offered letters written by the defendant, the plaintiff is entitled to read with them his own letters, which were a part of the same correspondence.

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Appeal from_district__court, Decatur county; J. W. HARVEY, Judge.

Plaintiffs alleged the issuing to them by defendant of the policy of insurance set out against loss by fire in the building described and a stock of merchandise while therein; that the property was totally destroyed by fire January 2, 1888; that on February 2, 1888, the defendant, by its adjuster, Overton, fully adjusted the loss, "took sworn statements of the plaintiff in regard to said loss and its cause, and then and there, for and in behalf of the defendant, expressly waived all different or further proofs of loss on the part of your petitioners, and then and there declared the satisfaction of defendant with the facts and proofs so made;" that the property was worth the amount for which it was insured, and that the amount is due and unpaid. Defendant, answering, admits the execution of the policy, and denies that it, by itself or agents, waived the right under the policy and laws of Iowa to demand full and complete proofs of loss; denies that the property was of the value alleged, and that the property was totally destroyed. Defendant admits the issuing of the policy, and denies that any notice or proofs of loss were ever given or made; that the right to demand proofs of loss was waived; and that the property was totally destroyed, or of the value alleged. Defendant alleges that plaintiffs represented in their application that an inventory of the goods had been taken in June, 1887, showing their value to be $2,100.

and that it relied thereon in granting the policy; that in fact, as plaintiffs knew, no inventory had been made at that time, nor for a long time prior, and that by the last inventory the goods were shown to be of much less value than $2,100. It also alleges that the real estate upon which the building was situated and the building were the sole and separate property of M. E. Graves, and that the goods were the sole and separate property of F. J. Graves, neither having any ownership in the property of the other, and therefore there is a nisjoinder of parties plaintiff, aud that the plaintiffs are not entitled to maintain this action. It also alleges that plaintiffs are estopped, by the terms of the policy, from claiming the waiver alleged. A verdict was returned in favor of plaintiffs for $1,520, and, defendant's motions in arrest of judgment and for a new trial being overruled, judgment was entered upon the verdict. Defendant appeals.

A. J. Baker and A. A. Haskins, for appellant. E. W. Curry and Parish & Hoffman, for appellees.

GIVEN, J. 1. We first inquire whether there is a misjoinder of parties plaintiff. It appears without question that plaintiffs did own the property insured separately, as alleged, neither having any interest in the property of the other, except as it arose from their relation as husband and wife, and his occupancy of her store building. The policy is to them jointly, is for a specified amount on the building, and not exceeding a specified amount on the goods, and was issued in consideration of the single sum paid as premium. Appellant claims the rule to be "that, if the interest be joint, the action must be joint, although the words are several; and, if the interest be several, the covenant will be several, although the terms of it be joint." Authorities are cited sustaining this rule, and it is contended that, as plaintiffs' interests were several, they cannot maintain a joint action, though the covenant in the policy is by its terms to them jointly. Whether such is the rule at common law we need not inquire, as the question must be determined upon the provisions of our statute, which is as follows: "Sec. 2545. All persons having an interest in the subject of the action, and in obtaining the relief demanded, may be joined as plaintiffs, except where it is otherwise provided in this Code." In Skiff v. Cross, 21 Iowa, 459, it was held that under this section sureties who had paid money for their principal in equal amounts may join in an action to recover the whole amount. It is there said: "What good reason can be given why we should hold that each must bring a separate action, and thus vex the defendant with several suits instead of one? Under the section quoted the plaintiffs may join, or they might, as heretofore, have brought their separate action each for the amount he paid. That these plaintiffs may be entitled to different amounts is no reason why they should be driven to separate action upon the covenants that are to them jointly. Fauble v. Davis, 48 Iowa,

462. Cases cited by appellant are clearly distinguishable from this. Rhoads v. Booth, 14 Iowa, 575, was a joint action by several plaintiffs for malicious prosecution, and it was held that the damages were personal to each, and that they could not join. Cogswell v. Murphy, 46 Iowa, 44, was against several separate owners of stock to recover damages done by all of the stock, and it was held that a joint action did not lie against the owners. Bort v. Yaw, Id. 323, was to recover damages for fraudulent representations made to the plaintiffs, whereby each was induced to enter into separate and independent contracts with the defendant. Mendenhall v. Wilson, 54 Iowa, 589, 7 N. W. Rep. 14, was an action for tres. pass against two defendants and on contract against one, with a verdict against both for the trespass. There was no evidence against one defendant, and it was held error to refuse an instruction to discharge that defendant as improperly joined in the action. Independent SchoolDists., etc., of Graham Tp. v. Independent School-Dist. No. 2, etc., 50 Iowa, 322, was by several plaintiffs on an implied contract, which, if it did arise, was to each plaintiff separately. It is said in that case that it is not the rule in this state to allow a joinder of plaintiffs where the same result must follow. Clearly, that the same result will follow, is not of itself ground for a joint action. They must have an interest in the subject of the action, and in obtaining the relief demanded. It will be noticed that in none of these cases was the cause of action based upon a covenant running jointly to the plaintiff and for a single consideration. It may be questioned whether the defendant, having contracted with the plaintiffs jointly, is not estopped from denying the joint obligation; but this we do not determine. Thompson v. City of Keokuk, 61 Iowa, 187, 16 N. W. Rep. 82. As bearing Somewhat upon this question, see, also, Linder v. Lake, 6 Iowa, 164; McNamee v. Carpenter, 56 Iowa, 276, 9 N. W Rep. 218; Kansel v. Insurance Co., (Minn.) 16 N. W. Rep. 430. Section 2548 of the Code provides that "persons having a united interest must be joined on the same side, either as plaintiffs or defendants, except as otherwise provided by law." By this policy, and for all the purposes of the insurance, the interests of these plaintiffs in the insured property was united. If this was an action against the plaintiffs on this contract of insurance they would not be heard to plead a misjoinder, in the face of section 2550, as to joinder of defendants; they, as well as this defendant, being jointly bound by the contract. We are of the opinion that there is no misjoinder of parties plaintiffs.

2. A number of the errors assigned arise out of the following facts with respect to notice and proof of loss, and the alleged waiver of other proofs of loss than the statement made to Mr. Overton: It is provided in the policy that“in case of loss the assured shall forthwith give written notice thereof to the company within 60 days; render an account of the loss, signed and sworn to state how the

fire originated; give copies of the written portions of all contracts thereon; also actual cash value and ownership of the property, and the occupation of the premises." The loss occurred January 2, 1888, and on February 2d following F. C. Overton was sent by defendant to the place of the loss, to investigate with respect thereto. There is dispute as to what he was authorized to do, but it is unquestioned that he did then and there take a written statement under oath from plaintiff T. J. Graves. That statement shows that Graves was sworn to "true answers make to all questions propounded to him by T. C. Overton, adjuster of the Merchants' and Bankers' Insurance Company of Des Moines, Iowa, touching my loss and claim on account of loss by fire, "etc. The statement was taken in narrative form in response to questions asked by Overton, and it is with reference to how the fire originated, and contains statements as to an inventory of goods, the amount thereof, the amount and bills of subsequent purchases, and the current expenses of the assured, thereby tending to show the value of the goods. There was testimony tend. ing to sustain plaintiffs' allegation that Mr. Overton waived all different or further proofs of loss, and declared the sat. isfaction of defendant with the facts and proofs so made. In subsequent letters from defendant's secretary, Mr. Overton is spoken of as “our adjuster," and plaintiffs are called upon to furnish original invoices and bills of lading from date of last inventory. There was also testimony tending to show that plaintiffs immedi. ately notified defendant's agent who had solicited the risk of the fire, and that he notified the company. The written statement made to Mr. Overton is in substantial compliance with all that the policy requires as proofs of loss, except that no copies of written portions of contracts are mentioned, nor the occupation of the premises stated. There was no question as to the occupation, and we may infer from the absence of any mention of contracts that there were none. It is said there was no mortgage or other lien upon any of said property. If this statement was not a sufficient rendering of an account of the loss, it was evidently so complete that Mr. Overton might more readily accept it as sufficient proof of loss than one which was less so. It was not a question as to whether Mr. Overton had authority to and did waive the making of any proofs of loss, but rather whether he waived further proofs,—whether he accepted this statement as sufficient. That there was testimony tending to show that he did so accept it is not disputed. As to Mr. Overton's powers defendant's secretary testifies that he was sent to investigate the circumstances of the fire, and that he was afterwards appointed to adjust the loss. Taking proofs of loss, as required by the policy, would seem to be a very ready and proper way of investigating "the circumstances of the fire." The statement taken by Overton was sent to and acted upon by the defendant, as shown by letters calling for further procfs, from which to determine the value of the goods lost. We

think from all the evidence the jury might find that Mr. Overton had the power to take proofs of loss; that he did waive any further proofs than the statement taken, and did express himself as satisfied therewith. It follows that the errors assigned, upon the theory that there were no proofs of loss, and that Overton did not have authority to waive proofs of loss, are not well founded. There is a marked difference between authority to and waiving of any proofs of loss by an agent, and authority to and waiving any further proofs than those taken by him. The cases cited are all of the first class, and therefore not applicable to this. As stated, there was testimony tending to show that defendant had notice of the fire soon after, through its soliciting agent; but, whether it did or not, it is evident that it had notice upon which it acted. Having acted upon the notice it had, it must be taken, in the absence of objection, to have waived any other or different notice.

3. One Crawford was called by plaintiffs to testify as to the value of the goods. He stated that he had two and a half years' experience in the hardware business; was then keeping a drug-store near plaintiffs' place of business, and practicing medicine; that he was frequently in plaintiffs' store; that it seemed to be well filled; did not notice any depletion of stock before the fire; and that in his judgment there was from $1,500 to $1,600 worth of goods. Mr. Early, a grocer in the same town, but who had taken no particular notice of Graves' groceries, gave as his judgment that they were worth from $200 to $300. Appellant's objections to this testimony were overruled, of which it complains. It is not as satisfactory as would be desired in arriving at the value of the goods destroyed, and yet it cannot be said that it is so remote as to not bear upon that question. In this, as in many cases of the kind, there are no books and invoices from which to ascertain the value; and of necessity the testimony, which is less convincing, must be received and considered. We think there was no error in receiving this testimony and leaving its weight to be determined by the jury. Upon examination of the plaintiff T. J. Graves, and after he had stated generally concerning the goods on hand, he was asked a great many questions in chief, such as, "Did you have any augurs?" all of which were objected to as leading. They were leading in form, and yet the circumstances were such as to justify questions thus directing the attention of the witness to each particular item. Objection was made to letters written and sent by plaintiffs to defendant, on the grounds that they contained statements in favor of plaintiffs, and that they were not entitled to have their own declarations admitted in their favor. These letters were a part of the correspondence with defendant, and form simply one side of the conversation by letters; and defendant's letters being admitted, they were admissible as part of the correspondence. One of plaintiffs' letters referred to Mr. Overton as "your adjuster. Appellant contends that they were not entitled to this statement as evidence

that he was defendant's adjuster. Certainly not, unless defendant in reply admitted it, or was silent on that subject. Without discussing them further, we will say that we are very clear that the letters were properly admitted. On his examination Mr. Overton was asked whether he was engaged in any capacity by defendant other than to simply take the answers of Mr. Graves, and to report the facts in reference to the fire." Plaintiffs objected, on the grounds that the defendant sent him there as an adjuster, and he held himself out to plaintiffs as such, and cannot now claim that he was not. The objection was sustained, and appellant complains. That he did hold himself out to plaintiffs as an adjuster is shown in the statement he took, and in a letter of February 8th following the defendant speaks of him as “our adjuster." The question, however, was not whether he

and refused to reply or plead over, whereupon the court ordered that he be remanded, and remain in the custody of defendant. Plaintiff appeals.

John McKean, for appellant John Y. Stone, Atty. Gen., and F. O. Ellison, for appellee.

GIVEN, J. 1. It appears from the petition and answer that plaintiff was duly sentenced by the district court of Wapello county at the January term, 1884, to imprisonment in the penitentiary at Ft. Madison, at hard labor, for a term of eight years, and was committed to that prison in pursuance thereof. The answer shows that he was placed in the custody of the defendant as warden of the state penitentiary at Anamosa, by virtue of an order or resolutions of the executive council of the state, copies of which are set out as follows:

was an adjuster, but whether he had at a meeting of the executive council

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thority to take proofs of loss, and waive any further than those taken, or “to simply take the answers of Mr. Graves, and to report the facts in reference to the fire." There was no prejudice in sustaining this objection, as Mr. Kirkham, the secretary, testified afterwards that Overton "was instructed to make investigation as to the circumstances of the fire, and he was instructed positively not to take any proofs of loss." He also explained the letter of the 8th by saying that Overton was then authorized to adjust this loss. If Overton was instructed not to take any proofs of loss we have seen that he exceeded his instructions by taking them, and that the defendant received and acted upon them from him as "our adjuster," as shown by the correspondence. This discussion disposes of all the errors assigned and argued, and leads us to the conclusion that the judgment of the district court should be affirmed.

O'BRIEN V. BARR et al.

(Supreme Court of Iowa. May 28, 1891.) CONSTITUTIONAL LAW LEGISLATIVE POWERSDESIGNATION OF PENITENTIARY.

1. Acts 14th Gen. Assem. Iowa, c. 43, § 1, and Acts 16th Gen. Assem. Iowa, c. 40, § 8, establishing a penitentiary at Anamosa, in which shall be confined such convicts as the executive council may designate, are not in conflict with Const. Iowa, art. 5, § 1, vesting the judicial power in the courts, and the executive council may transfer to the penitentiary at Anamosa a convict sentenced to imprisonment in the penitentiary at Ft. Madison.

2. The executive council need not designate by name the convicts to be transferred, but it may authorize the warden to transfer 20 convicts "whose removal will, in the judgment of the state warden, be most consistent with the interests of the state and the proper treatment of its convicts, and with a due regard for the existing contracts for the employment of convict labor. "

Appeal from district court, Jones county; J. D. GIFFEN, Judge.

On September 29, 1888, plaintiff filed his petition in habeas corpus, upon which a writ was granted, and to which defendant made answer. Plaintiff demurred to the answer, and, the demurrer being overruled, elected to stand upon his demurrer,

held on the 16th day of February, 1886, the following, among other, proceedings were had, to wit: In the matter of the transfer of convicts from the Fort Madison to the Anamosa penitentiary the order made by the council at its meeting of February 10, 1886, was modified as follows: It was ordered that the transfer be made from convicts received subsequent to February 1, 1886, and to be such as can be spared without conflicting with contracts already made, until the whole number confined in the said Fort Madison penitentiary shall be reduced to four hundred, (400,) provided that number shall not exceed twenty-five. FRANK D. JACKSON, Secretary of State and Secretary of the Executive Council."

"April 9, 1886. To Hon. George W. Crosley, warden of the penitentiary at Fort Madison: You take notice that at a meeting of the executive council of the state of Iowa, held on the 5th day of April, 1886, the following resolution was adopted by said council, to-wit: 'Resolved, that the warden of the penitentiary at Fort Madison be authorized to transfer twenty conricts from said penitentiary to the penitentiary at Anamosa, the said transfer to consist of such convicts only whose removal will in the judgment of the said warden be most consistent with the interests of the state and the proper treatment of its convicts, and with a due regard for the existing contracts for the employment of convict labor. Resolved, that all orders heretofore made by this council in relation to the transfer of convicts be, and the same are hereby, revoked and rescinded, except in so far as transfers have been actually made under such orders.' FRANK D. JACKSON, Secretary of State and Secretary of the Executive Council,'

The grounds of demurrer are that said orders of the executive council are without authority of law and void, and do not mention or bind the petitioner, and that plaintiff can only be confined in the penitentiary of the state as sentenced, and that the sentence cannot be modified or contradicted by order of the executive council.

2. By section 1, c. 43, Acts 14th Gen. Assem., and section 8, c. 40, Acts 16th Gen. Assem., the penitentiary at Anamosa

was established as a penitentiary of the state, "in which such convicts sentenced for life or any period of time as the executive council may designate shall be confined, employed, and governed, according to the provisions of law relating to the government and discipline of the penitentiary at Ft. Madison." It is contended that this authority is in derogation of article 5,§ 1, of the constitution, which provides: "The judicial power shall be vested in a supreme court, district court, and such other courts inferior to the supreme court as the general assembly may from time to time establish." Pronouncing this judgment of imprisonment was unquestionably the exercise of a judicial power. The imprisonment and its duration could alone be determined by the court. But fixing the particular penitentiary in which the petitioner should be confined is not a part of the judgment. The effect and duration of confinement is all that was judicially determined by the judgment. The conviction was for burg. Jary, and the punishment provided in the statute is, "He shall be punished by im. prisonment in the penitentiary," and not in any particular penitentiary. The state furnishes penitentiaries, and may provide in which one convicts or classes of convicts shall be confined. This is in no sense the exercise of judicial power. If the state is concluded by a judgment that the confinement be in a particular penitentiary from providing for confinement elsewhere, then the humane provisions of our statute for confinement elsewhere in cases of insanity or pestilence are for naught in such cases. If by such a judgment the state is precluded from providing for confinement elsewhere than in the penitentiary named, then, if from fire or other casualty the prison named becomes unsuitable as a place of confinement, the convicts must be turned loose. We are in no doubt as to the authority of the state to provide for the confinement of convicts in any of its penitentiaries during the period fixed in the judgment, and that the authority to designate the convicts to be confined in the different penitentiaries is legally vested in the executive council of the state.

3. It is complained that the petitioner was not designated by name by the executive council to be transferred to and con

fined in the penitentiary at Anamosa, but that it was left to the warden at Ft. Madison to select those who should be transferred under the resolution and order of the executive council. The authority is to designate. The law is silent as to how the designation shall be made. The authority being general, they may designate in whatever way will clearly point out the individual convict or class of convicts who are to be confined at Anamosa. It is under this authority that the council have designated that all female convicts and persons convicted in certain counties of the state shall be confined at Anamosa, and those convicted in other counties at Ft. Madison. The order under which petitioner was transferred was for the transfer of a class of convicts.—that is, 20 convicts" whose removal will in the judgment of the state warden be most consistent with the inter

ests of the state and the proper treatment of its convicts, and with a due regard for the existing contracts for the employment of convict labor." True, this left it to the judgment of the warden as to which convicts would come under the class designated in the order; but this did not, as is contended, call upon him to exercise judicial powers, and the selection and transfer were in no wise a modification or change of the judgment which had been pronounced against the petitioner. We think there was no error in overruling plaintiff's demurrer to the answer, and in remanding him to custody. The judgment of the district court is affirmed.

HAYS V. MCCORMICK.

(Supreme Court of Iowa. May 28, 1891.) SWAMP LANDS-SELECTION BY STATE - RAILROAD GRANTS.

1. In an action to quiet title, where plaintiff claims under the swamp-land grant act of congress of September 28, 1850, and defendant under a railroad aid grant of May 15, 1856, the fact that the land was never selected by the state, as required by the swamp-land act, is not conclusive that it was not swamp land, but its actual character may be shown.

2. Where the land was swamp within the meaning of the act, the title thereto vested in the state on the passage of the act, and was not forfeited, as against the subsequent railroad aid grant, by failure to make selection as required

in the act.

3. Payment of taxes on the land by the railroad company and its grantees during the time the land was owned by the county under a grant from the state of all swamp land does not affect the rights of the county's grantee, as the land was exempt from taxation while owned by the county.

4. Such grantee will not be required to refund such taxes, as he would not have been obliged to pay them.

5. Where it appears that by agreement with the board of supervisors plaintiff is entitled to a proper instrument of conveyance of the land from the county, his title is sufficient, as against defendant, though the instrument of conveyance to him is insufficient.

Appeal from district court, Linn county; J. H. PRESTON, Judge.

Action to quiet title to a 40-acre tract of land in Linn county. Decree for plaintiff, and the defendant appealed.

E. S. Bailey and N. D. Parkhurst, for appellant. Davis & Voris, for appellee.

GRANGER, J. The respective parties trace the origin of their titles to grants of land by the United States, that of plaintiff being to the swamp-land grant act, approved September 28, 1850, as amended; and defendant to the Iowa railroad grant of May 15, 1856, as amended. The claim of the record title of the parties is as follows That of plaintiff, the act of congress of 1850 granting to the states the swamp and overflowed lands unfit for cultivation within their boundaries; the act of the general assembly of 1853 granting to the counties the swamp and overflowed lands within their limits, which were by the act of congress in 1850 granted to the states; and a conveyance by the county of Linn to him, September 4, 1888. That of the defendant, the Iowa railroad grant of 1856; a certification of the land under

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