1. On foreclosure the mortgagor and his wife testified that a certain part of the land, to which the mortgagor had only a bond for a deed, was fraudulently put in the mortgage. They were corroborated by an indorsement and cancellation made on the bond. The draughtsman testified that the mortgage was just as he drew it, and the mortgagee and another testified that it was never changed, and that the mortgagor and his wife fully understood the mortgage, and what it described, when they executed it. The application for the loan, and a second mortgage, given for commissions, both included such land; and an inspection of the original showed that no change had been made in the mortgage. Held, that the claim of defendants was not established.

2. A mortgagor of land to which he had only a bond for a deed, sold part of it to a third person, who agreed to pay the amount due on the bond in consideration therefor. He paid about half the amount due on the bond, and put valuable improvements on the part purchased by him. Held, that in a foreclosure of such mortgage such third person was not entitled to be subrogated to the rights of the holder of the legal title as to the land purchased by him.

3. Where the mortgagor has no title to any of the land when the mortgage is foreclosed, the rule which requires the mortgagee to first exhaust the land still owned by the mortgagor before resorting to that part of the mortgaged premises which the mortgagor has sold has no application.

Appeal from district court, Pottawattamie county; A. B. Thornell, Judge.

Action in equity to foreclose a mortgage. Judgment and decree for plaintiff. Defendants appeal.

er this, H. O. Rice sold his equity in the north 80 acres of the Graffen quarter to his brother T. M. Rice, who took possession, and has since occupied the land as a farm, and has paid in all about $1,800 on the purchase price, as provided in said bond, and has also made improvements of the value of several hundred dollars. May 24, 1886, H. O. Rice executed to one Clapp a mortgage for $2,691 on all the land described in the Squire mortgage, except the Graffen quarter. On September 30, 1886, H. O. Rice executed to C. D. Dillin a mortgage for $1,120 on same land that was embraced in the Clapp mortgage. November 27, 1886, H. O. Rice executed to C. M. Witt a mortgage for $516.43 on same land as that included in the Clapp and Dillin mortgages. The Clapp mortgage was assigned to Lodge & Henry, and by them foreclos ed, and the land covered by it sold to satisfy the judgment recovered in the foreclosure suit; they also having become the owners, by assignment from H. O. Rice, of all his interest in the Graffen contract, subject to the equity of T. M. Rice in the north 80 acres. Lodge & Henry are not parties to this action. March 10, 1890, and within nine months after said sale, C. D. Dillin, as a junior lienholder, redeemed the land from the sale under the Lodge & Henry foreclosure, paying $3,688.57 to the clerk, which was afterwards paid Lodge & Henry, and the sheriff's certificate assigned to Dillin. In December, 1885, the $5,000 note and mortgage made to Squire as trustee were sold to the Rutland Savings Bank, and it remained the owner of them until July, 1890. July 8, 1890, the bank began suit in the United States court on said note and mortgage, and on August 6, 1890, plaintiff herein purchased the same, paying therefor $5,700. The case was dismissed, and suit commenced in the state court. Soon after this suit was begun, plaintiff released

KINNE, J. 1. This record discloses the following facts: On December 1, 1885, the defendant H. O. Rice owned in fee the S. W. 4 of section 28, the E. 1⁄2 of S. E. 4 of section 29, and E. 1⁄2 of N. E. 4 of section 32, township 76, range 41; and he held a bond for a deed of the N. W. 4 of section 28, township 76, range 41, from one Adolph Graffen, which tract will hereafter be referred to as the "Graffen Quarter." This bond provided for the conveyance of the fee title on the payment by H. O. Rice of $2,050, such conveyance to be made subject to two mortgages, aggregating $1,700 and interest, which Rice assumed and agreed to pay, making the total consideration $3,750. December 1, 1885, there was still due on this Graffen quarter about $3,500. Rice procured a loan running to one Squire, trustee, for $5,000, and executed his note therefor, secured by a mortgage upon all the real estate heretofore described, including the Graffen quarter. Aft

suit all of the land included therein except the Graffen quarter, and credited upon the note two-thirds of the amount then due thereon, and asked judgment against Rice for the balance and a decree of foreclosure against the Graffen quarter for the one-third remaining due upon the note. H. O. Rice testifies, and the record so shows, that he has no interest in this land. T. M. Rice intervened in the case, and asked, in the event that the Squire mortgage was found to cover the Graffen quarter, that he might be subrogated to the extent of payments made by him on the Graffen contract, and that such payments might be decreed to be a prior lien to plaintiff's mortgage. The court found for plaintiff, and that he should have judgment for $1,651.36, with attorney's fees, costs, and interest, against H. O. Rice, and ordered the mortgage foreclosed for said sum as against said Graffen quarter.

2. It is contended by the defendants that the Graffen quarter was fraudulently put in the Squire mortgage; that it was expressly

agreed and understood between all the parties that it should not be embraced therein. Now, it is incumbent upon the defendants to establish this claim. In favor of their contention is the evidence of H. O. Rice and his wife. They are corroborated to some extent by the indorsement and cancellation made upon the Graffen bond. Against this is the testimony of Somers, who drew the mortgage, that it is just as it was drawn by him; of both the Squires that the instrument has never been changed, and that Rice and his wife fully understood the mortgage, and what was described therein, when they signed and acknowledged it. Then we have the original mortgage before us, and it clearly appears that no change has ever been made in the description of property therein set forth. Again, on the same day, a mortgage was given to Squire covering the same real estate as the $5,000 mortgage, which second one was given for commission on the loan. The application for the loan embraced the Graffen land. It is clear that defendants have failed to establish this defense, and we must hold that the Graffen quarter section was rightfully embraced in the Squire mortgage.

3. T. M. Rice insists upon the right of subrogation as to the money payments made by him to Graffen on the 80 acres of the Graffen land purchased of H. O. Rice. The trial court dismissed his petition of intervention, and must have found that he was not entitled to be subrogated. Authorities are cited by counsel announcing correct principles of law applicable to the subject of subrogation, but not applicable to the facts as they appear in this case. T. M. Rice purchased the land with record notice of the Squire mortgage thereon. In law, he knew that the Squire mortgage covered this land, subject only to the Graffen claim for purchase money. When he made his several payments to Graffen he had no thought that he could or would be subrogated to Graffen's rights. But it is immaterial as to what T. M. Rice thought. The fact is, he purchased the land of H. O. Rice. He took the latter's place, and stood in his shoes, so far as the obligation to Graffen was concerned, and agreed to pay this Graffen claim as a part of the purchase price of the land; and he did in fact pay part of it. Now, T. M. Rice, by his agreement and acts, made H. O. Rice's debt to Graffen his own. His obligation to Graffen became an actual primary liability, and in such a case the right of subrogation does not exist. Sheld. Subr. § 26; 3 Pom. Eq. Jur. § 1212, note 1; Id. § 1213; Goodyear v. Goodyear, 72 Iowa, 329, 33 N. W. 142; Kellogg v. Colby, 83 Iowa, 513, 49 N. W. 1001.

4. It is said that plaintiff must exhaust the 320 acres of land before he can proceed to sell the Graffen land under the mortgage. It is not necessary to discuss the rule contended for. If it be correct, still, when applied to the facts of this case, it does not impose such a duty upon the plaintiff. The

rule contended for requires the plaintiff to enforce his judgment by levying upon and selling land which H. O. Rice still owns, and would permit the land purchased by T. M. Rice to be sold for any balance remaining after thus exhausting the other mortgaged property. Now, this record shows that H. O. Rice has no title to any of this land, and has not owned it for some time. His interest therein has passed to other parties who have become purchasers of the property. Hence it is not a case where the rule is applicable.

5. Lastly, it is claimed that the court below charged too much of the incumbrance to the Graffen quarter. Plaintiff credited two thirds of the amount due on his mortgage as paid by reason of the release by him of the half section, and asked a decree foreclosing his mortgage against the Graffen quarter section for one-third of the mortgage debt. The district court found that the Graffen quarter should bear five-seventeenths of the entire mortgaged debt, and entered a decree accordingly. The established rule in this state is that when mortgaged property is alienated it must bear its share of the mortgage debt pro rata according to value, and without regard to improvements placed thereon by purchasers subsequent to the time of the execution of the mortgage. Bates v. Ruddick, 2 Iowa, 423; Massie v. Wilson, 16 Iowa, 390; Taylor v. Short's Adm'r, 27 Iowa, 361; Barney v. Myers, 28 Iowa, 472; Tufts v. Stanley, 42 Iowa, 628; Huff v. Farwell, 67 Iowa, 298, 25 N. W. 252. Under the evidence, we think the court was justified in its finding. True, the rule in this particular case seems to work a hardship in requiring the value of the land to be ascertained without regard to the amount actually paid thereon at the time the mortgage was made. But the rule has been too long established to be set aside because in its enforcement an occasional injustice may seem to result; be sides, it is doubtful if any rule could be established which would in all cases prove satisfactory. We see no reason for disturbing the judgment below, and it will be affirmed.

1. A letter by a fire insurance company, acknowledging receipt of notice of a claim of loss by a policy holder, and stating that it "will receive prompt attention," does not waive a condition requiring the assured to furnish proofs of loss within 60 days.

2. After expiration of the time for sending proofs of loss to a fire insurance company, the assured's attorney wrote it, stating the amount claimed, that notice had been given and acknowledged, and that the policy was destroyed by the fire. He requested the company to inform him if the claim would be settled without suit, as, "if not, we desire suit to commence

at once." He also asked for a copy of the policy. The company, in reply, sent a copy of the policy, and stated that no proofs of loss had been received. Held, that such correspondence did not tend to prove waiver of proofs of loss.

3. Where a fire insurance policy provides that no person can waive any of its conditions except the secretary, and he only in writing. thereon, an oral waiver of proofs of loss by an adjuster of the company does not bind it.

Appeal from district court, Monroe county; W. I. Babb, Judge.

Action on a policy of insurance against loss by fire. There was a trial by jury, and a verdict and judgment for plaintiff. Defendant appeals. Reversed.

Henry L. Dashiell, for appellant. T. B. Perry, for appellee.

ROTHROCK, J. The property insured was a frame dwelling house, and certain household furniture and personal property kept and used in the house. The policy was issued on the 25th day of January, 1890, and the amount of the insurance was $425. The property was totally destroyed by fire on the 27th day of June, 1890. The policy provides that, in case of loss of the property by fire, "the assured shall forthwith give notice of said loss to the secretary of the company, and within sixty days render a particular account of such loss, signed and sworn to by the assured, stating when and how the loss originated, the nature of the title, and inter est of the assured and all others in the property." The application for the insurance was taken by one Mullen, a local agent of the defendant, who was a mere soliciting agent, without authority to issue policies. The day after the fire, the husband of plaintiff called upon Mullen, and advised him of the loss, and Mullen wrote a letter to the company at Cedar Rapids, giving notice of the loss. It is conceded that no proof of loss such as was required by the policy was made within 60 days after the fire. The plaintiff claims that formal proof of loss was waived by the defendant. In our opinion, the determination of this question is decisive of the case, and no other question need be considered. The defendant introduced no evidence on the trial, and, after the plaintiff had introduced her evidence, the defendant made a motion for a verdict against the plaintiff, one ground of which was as follows: "The proofs of loss were not furnished in 60 days after the loss, as required in the contract and the statute, and there is no evidence of any waiver of the same by the de fendant." The motion was overruled, and the court charged the jury, and a verdict was returned for the plaintiff.

The claim of waiver of proofs of loss is based upon the acts of the officers and agents of the company by which the plaintiff was induced to believe that no proofs of loss were required. There is nothing in the evidence by which any waiver could be inferred, founded upon the acts or declarations of the

agent Mullen.

Moreover, he was a mere soliciting agent, with no power to issue policies or bind the company by a contract of insurance. Agents possessing the limited power of soliciting insurance, delivering policies, and receiving premiums cannot waive conditions and forfeitures. Viele v. Insurance Co., 20 Iowa, 9; Armstrong v. Insurance Co., 61 Iowa, 212, 16 N. W. 94; Garretson v. Insurance Co., 81 Iowa, 727, 45 N. W. 1047. The letter written by the soliciting agent was received at the general office, and was answered by a postal card in these words:

"Office of Farmers' Ins. Co. Cedar Rapids. Ia., June 30/90. Dear Sir: Your notice claiming loss on your policy No. 178,879 has been received, and will receive prompt attention. Yours, truly, J. H. Smith, Prest."

No other communication was had with the home office until November 9, 1891, long after the expiration of the 60 days in which proofs of loss should have been made, when the following correspondence was had:

"Albia, Iowa, November 9th, 1891. J. H. Smith, President Farmers' Insurance Co., Cedar Rapids, Iowa: Mr. Douglass Kirkman, husband of Mrs. Ada Kirkman, informs me that, on the 27th of June last, Mrs. Ada Kirkman sustained a loss by fire of her property insured with your company by policy No. 178,879. He says he has given you notice of the loss, receipt of which was acknowledged by you June 30th last. The policy was destroyed by the fire along with the property insured. The amount of the insurance was $425, which he claims his wife has sustained by the fire, and this amount he claims of your company as the damage due his wife on the policy. If the matter will be settled without suit, please inform me. If not, we desire suit to commence at once. Will you please furnish me a copy of his policy, the original having been destroyed in the fire, and he will pay the expense. T. B. Perry."

"Cedar Rapids, Iowa, 11-12-'90. T. B. Perry, Albia, Iowa: As per your request of 10th inst., we herewith inclose you copy of policy issued to Mrs. Ada Kirkman, having date January 23d, 1890, No. 187,879. No proof or affidavit of any loss sustained under this policy has been received by the company. J. H. Smith, President."

On the 15th day of November, 1890, plaintiff's counsel transmitted formal proofs of loss to the defendant, with a letter inquiring whether the proofs were satisfactory, and whether the loss would be paid. The de fendant made no reply. It is claimed that the postal card was an implied waiver of proofs of loss, because it was stated therein that the matter would "receive prompt attention." We do not think that this was a waiver of any act necessary to be done by the plaintiff. It was surely not necessary that the answer to the notice of loss should call the attention of the insured to the plain provision of the policy that required proofs of loss within 60 days. The president of the

company might well say that prompt attention would be given, without waiving any part of the contract. The postal card was nothing more than notice that the company would give prompt attention in the performance of its contract. The correspondence which took place in November, as we view it, does not tend to prove a waiver of proof of loss. Plaintiff's counsel is a lawyer of undoubted experience and ability. He founds his claim of waiver upon the fact that the president of the company did not fully answer his letter. It is true, the answer did not state that the matter would be settled without suit. But the furnishing of a copy of the policy was to enable counsel to commence the threatened suit, and the statement that no proof of loss had been made was not an intimation that, if it should be made after that, the time of making it would be waived. It was rather an intimation to the learned counsel that he would likely fail in sustaining an action. It is further claimed that one J. H. Stahl was an agent of the defendant, known as an "adjuster of losses," and that within 60 days, and on the 8th day of July, 1890, he appeared upon the premises where the property which was destroyed was situated, and that in conversation with the plaintiff and her husband he waived proof of loss, and stated that the insured had done all that was required for them to do, and that the defendant would settle the loss in 60 days. There is some doubt as to whether there was evidence sufficient to authorize a finding that Stahl was an adjusting agent, or that he was clothed with power to waive any stipulation in the policy. This question we need not consider, because the policy in sult contains this provision: "It is expressly provided that no officer, agent, or employe of this company, or any other person, can in any manner waive any of the conditions, provisions, or requirements of this policy, except the secretary, and he only in writing hereon; and this policy is made and accepted on the above express conditions." There is no question as to the rights of the parties under such a contract as this. There is no statute of this state by which insurance companies are bound by all the acts of the agents which they send out to deal with the public, and the courts cannot say that a contract limiting the power and authority of agents is void. The plaintiff in this case must be held to have assented to this stipulation in the policy, and, for aught that appears, she is bound thereby. Zimmerman v. Insurance Co., 77 Iowa, 691, 42 N. W. 462; Cleaver v. Insurance Co., (Mich.) 32 N. W. 660; Hankins v. Insurance Co., (Wis.) 35 N. W. 34. We have disposed of this question of waiver without determining whether the president of the company, notwithstanding the terms of the policy, had the power to make a valid waiver of its conditions. As we have said, we do not regard either the postal card or letter as evidence of a waiver. As to the

declarations of the agent Stahl, it is clear from the above-named cases, and many others that might be cited, that he had no authority to waive proofs of loss. We think the motion to direct a verdict for the defendant should have been sustained. Reversed.

MOFFATT v. MOFFETT. (Supreme Court of Iowa. Feb. 7, 1894.) CONVERSION-ADMISSIONS IN ANSWER-Burden OF PROOF-AGENCY-EVIDence.

1. In an action for the conversion of a certain quantity of corn, where defendant admits receiving plaintiff's corn, but avers that he purchased it from an agent of plaintiff, whom he paid therefor, the burden is on defendant of showing that the person from whom he purchased was plaintiff's agent, and that he paid such agent for the corn.

2. Evidence that plaintiff's nephew, who lived with him, and worked on his farm, was authorized to buy things, and have them charged to plaintiff, is immaterial on an issue as to whether such nephew was authorized to sell defendant corn belonging to plaintiff, which defendant was charged with converting.

3. On an issue as to whether plaintiff's nephew was authorized to sell plaintiff's corn to defendant, acts and declarations of plaintiff, tending to show such authority, are admissible, though not known to defendant when he bought the corn.

Appeal from district court, Cedar county; James D. Giffen, Judge.

An action to recover the value of 523 bushels of corn, taken by the defendant from plaintiff's farm in Cedar county. From a judgment below for the plaintiff, the defendant appealed. Reversed.

Wolf & Hanley and R. G. Cousins, for appellant. Wheeler & Moffit, for appellee.

GRANGER, C. J. 1. The issues should be definitely understood, in order to properly consider the legal import of an instruction given by the court as to the burden of proof, of which complaint is made. In the petition, after stating that plaintiff owned the land where the corn was, it is stated "that defendant took from said cribs five hundred and twenty-three bushels of corn, the property of plaintiff, and of the reasonable market value of $120.29, and converted said corn to his own use, and refuses to pay plaintiff for the same; that there is now due plaintiff by defendant for said corn $120.29, no part of which has been paid, and interest thereon åt six per cent;" then a prayer for judgment. The answer denies each and every allegation of plaintiff's petition, but admits that he purchased from one Ferguson, who had charge of the farm and property of this plaintiff, and was the authorized and acting agent of the plaintiff, 500 bushels of corn at 21 cents per bushel; alleges the fact to be that he paid plaintiff's agent in full for all corn purchased; denies that he is indebted to plaintiff in any sum whatever. The answer admits receiving 500 bushels of plaintiff's corn, and by way of affirmative defense it states

that the corn was purchased of plaintiff's authorized agent, and payment was made to him therefor. These averments are considered as controverted without a reply. Code, § 2712; Bank v. Perry, 72 Iowa, 15, 33 N. W. 341. Upon a proposition for judgment upon the pleadings, without evidence, the plaintiff would have been entitled to the value of the 500 bushels of corn at 21 cents per bushel, for defendant admits receiving that much of plaintiff's corn of that value. To avoid such payment, he must show-what he averredthat Ferguson was an authorized agent for that purpose, and that payment was made to him. The only instruction by the court on the burden of proof is as follows: "(4) The plaintiff has the burden of proof, and it devolves on him to satisfy you of the truth of the material allegations of his petition by a fair preponderance of evidence; and if he has not done so you would find for defendant." It will be seen that the instruction deprives plaintiff entirely of the benefit of the admission in the answer, and required him to make proofs of the material allegations of his petition, or permit a verdict for defendant, when, without any proof, he was entitled to judgment. Nothing in the submission of the cause seems to render the errors without prejudice. It is true that on the trial the testimony was mainly directed to the fact of the agency of Ferguson, and the jury was directed to find whether or not he was such agent, or was by the plaintiff held out as such in a manner to render the plaintiff liable for his acts; but the instructions nowhere place the burden of showing such fact on the defendant, and we might say that he should not now complain, because he did not ask an instruction, but for the error in the instruction given, which operated to deny the plaintiff a right to which he was entitled under the admitted facts.

2. A few suggestions as to the evidence may be important in case of another trial of this cause. The plaintiff gave direct evidence to the effect that his corn was taken without his consent; that defendant told him he had got 523 bushels of it; that he still owed him for it, and gave the market value. On cross-examination, after stating that Ferguson was his nephew, and had been living with him some weeks before he left the farm; that he did chores like a hired man, and, if a sack of flour was needed, he was sent for it, he was asked: "Did James go to town, and buy things, and have them charged to you, while he lived with you?" The question was held to be proper cross-examination, and material. We think it is neither. A proper answer to the question could have no bearing whatever on the testimony given on the direct examination; nor would it tend to show the fact of agency if such an inquiry would, at that stage of the trial, be proper. Permission to a son, a hired man, or one living with another, to get things at a store, and have them charged, is in no sense au

thority, nor does it tend to show authority, to sell his property.

3. It appears from the record that the fact of agency is sought to be shown in two ways: (1) An actual authority to Ferguson to sell the corn, and (2) that he was so held out to the public as to authorize the understanding that he was such agent. There was evidence admitted of facts and declarations, not within the knowledge of defendant, when he bought the corn, and appellant urges that because of such want of knowledge they were immaterial, and could not have been relied upon in making the purchase. If the testimony established the fact of the agency, it was proper, whether known or not, for the actual agency would protect the defendant regardless of any knowledge he had on the subject. If, however, the transaction is to be justified, not by the fact of agency, but because of the conduct of the plaintiff in holding Ferguson out as such, the defendant must have purchased relying on such conduct, and previous knowledge would have been requisite. As the fact of agency was involved in the trial, the testimony was not improper, because of the reasons suggested, These suggestions will indicate our view as to an instruction presenting a similar question. We may further say that we think there is no testimony to authorize the giv ing of the seventh instruction. The judgment is reversed.

COFFMAN ▾. CHICAGO, R. I. & P. RY. CO. (Supreme Court of Iowa. Feb. 8, 1894.) BRAKEMAN-COUPLING CARS - NEGLIGENCE-GEN ERAL AND SPECIAL VERDICT.

In an action against a railroad company for the death of a brakeman crushed between cars in making a coupling, judgment should be for defendant, notwithstanding a general verdict for plaintiff, when the special findings show that decedent's signals for backing the cars were obeyed; that he knew the kind of cars he was to couple; that he had been instructed how to couple them, and directed, when making the coupling, not to stand between the cars, but at the side, while the cars were coming together; and that he had made such couplings before; and the complaint and evidence show plaintiff's theory to be that, the couplings on the two cars being unlike, and not fitting each other, permitted the cars, which were not supplied with bumpers, to come together.

Appeal from district court, Shelby county; Walter I. Smith, Judge.

Action to recover damages alleged to have been caused to the estate of plaintiff's intestate by negligence on the part of defendant. There was a trial by jury, and a verdict and judgment for plaintiff. The defendant appeals. Reversed.

T. S. Wright, H. W. Byers, and Wright & Baldwin, for appellant. Turner, Smith & Cullison, for appellee.

ROBINSON, J. On the 5th day of September, 1889, Edward A. Bennett was in the em