officer, while he at the same time had been accepting pay in the diplomatic service. The United States denied his right to recover, and sought to recover, by way of counterclaim, a large sum which it was claimed had been erroneonsly paid him without authority of law as his salary as an army officer, during which time he was not in fact in the army; and it was held that the government could not recover money paid under the mistaken belief that there was a legal liability therefor.

In Kraft v. City of Keokuk, 14 Iowa, 86, the plaintiff sought to recover back money paid by him to defendant for a license, under a law which was afterwards held to be unconstitutional. This court held that he could not recover the money so paid, because paid under a mistake of law. The court says: "The law does not permit him to allege his ignorance, and make it the foundation of his right to recover back the money. The principle upon which courts refuse to relieve mistakes in law is, we suppose, the fact that the law presumes every man to be cognizant, not only of what are its provisions in force, but how far they are valid and operative."

The appellant contends that $160 of the amount paid for attendance, and $17 paid for commitments and discharges, were paid under mistake of fact, and not of law. The agreed statement of facts does not support this claim. It not only fails to show that the payments were made under a mistake of fact, but expressly states that the claims were presented and allowed upon the belief that the defendant county was legally liable to the plaintiff.

The judgment of the district court is affirmed.

Money paid

MISTAKE OF LAW, RECOVERY OF MONEY PAID under. under a mistake of law cannot be recovered back: Norton v. Marden, 15 Me. 45; 32 Am. Dec. 132; Mowatt v. Wright, 1 Wend. 355; 19 Am. Dec. 508, and note; Champlin v. Laytin, 18 Wend. 407; 31 Am. Dec. 382; Mayor v. Lefferman, 4 Gill, 145; 45 Am. Dec. 145. But see Culbreath v. Culbreath, 7 Ga. 64; 50 Am. Dec. 375, and note; Hughes v. Pealer, 80 Mich. 540.

DODD V. SCOTT.

(81 IOWA, 319.]

RES JUDICATA HOMESTEAD. AFTER A JUDGMENT OF FORECLOSURE against a husband, he cannot, in defense of an action by the purchaser under such foreclosure, assert that the property was a homestead when the former judgment was entered; that his wife was not a party to the judgment and was not affected thereby; and that he has a right of possession acquired from the homestead right of his wife. Whatever right the husband had because of the wife's homestead right was available as a defense to the foreclosure suit.

ACTION of forcible entry and detainer, in which the plaintiff relied on the foreclosure of a contract of purchase made by him to the defendant, and a sale and deed pursuant to the foreclosure. Neither in this action nor in the foreclosure suit was the wife of the defendant a party. The defendant answered, that before the beginning of the suit to foreclose he was a married man, and with his wife occupied the premises sued for as a homestead; that his wife was not a party to the foreclosure; and that he had a right and possession in and to the real estate acquired by and from the homestead right of his wife. To this answer a demurrer was interposed, but it was overruled, and the plaintiff appealed.

Hayes and Schuyler, and B. F. Thomas, for the appellant. No appearance for the appellee.

GRANGER, J. The case must be reversed, and as we are unaided by brief from appellee, we limit our consideration to a single question: See McKern v. Albia, 69 Iowa, 447; Deeds v. Chicago etc. R'y Co., 69 Iowa, 164; Gilfeather v. Council Bluffs, 69 Iowa, 310.

A point urged in argument by the appellant is, that the husband, who was a party to the foreclosure proceeding, cannot in this case set up the homestead right of the wife as a defense, and it seems difficult to gainsay the proposition. With the amendment the plea appears to be one personal to the defendant; that is, he does not seek to defend for his wife, but for himself, because of a "right and possession" acquired "through the homestead right of the wife." Being a party to the foreclosure suit, if he had a homestead right available to him as a defense therein, he must interpose it, or the right is lost. Now, the wife was not a party to that proceeding, and any right he had available to him because of the wife's homestead right (if there could be any) was just as available

for defense in that suit as in this, and just as available then as any other right he had. We must assume, then, that all rights personal to the defendant have been adjudicated or waived, and that under the claim of the demurrer, because of the wife not being a party to this suit, no claims based on her homestead rights are available as a defense. With this holding, no question of title is involved in the issues, and the cause should be remanded to the justice for trial.

Reversed.

JUDGMENT

- CONCLUSIVENESS OF. When a party might have presented a defense and did not do so, the judgment obtained against him is conclusive as to such defense, and it cannot be set up in a subsequent proceeding: Morrill v. Morrill, 20 Or. 96; 23 Am. St. Rep. 95, and note; Hobby v. Bunch, 83 Ga. 1; 20 Am. St. Rep. 301, and note. See note to Gould v. Sternburg, 15 Am. St. Rep. 142; Huntley v. Holt, 59 Conn. 102; 21 Am. St. Rep. 71, and note. But see Sloan v. Price, 84 Ga. 171; 20 Am. St. Rep. 354, and note.

HAGAN V. MERCHANTS' AND BANKERS' INS. Co.

[81 IOWA, 321.]

PLEADING. THE EXECUTION OF A POLICY OF INSURANCE IS NOT PUT IN ISSUE by an answer denying that the policy as set out in the complaint is the policy issued by the defendants, "for that the same has been changed and altered, without their knowledge and consent, since its delivery," and further specifying the respects in which it has been so altered. Such policy is therefore receivable in evidence on behalf of the plaintiff without proving its execution, and without evidence concerning the alleged alterations. EVIDENCE-Burden of ProOF. — IF A WRITING APPEARS TO HAVE BEEN ALTERED, but there is nothing to show when or by whom such alteration was made, the party claiming that it was made after delivery and with. out authority must assume the burden of proof. INSURANCE CORPORATION IS BOUND BY The KnowledgE OBTAINED BY ITS AGENTS.

INSURANCE, NOTICE OF CONCURRENT. — IT THE AGENT OF THE INSURER KNOWS when he receives the application for insurance that the assured is desiring and applying for concurrent insurance in excess of that permitted by the policy, this knowledge is imputed to the insurer, and precludes it from maintaining a defense founded upon the fact that additional insurance was finally obtained.

INSURANCE.-PAROL EVIDENCE that proof of loss was prepared and sent to the insurer is admissible, and if there is no issue as to the form or sufficiency of the notice or proof, there is no necessity of evidence of the contents of either, and the admission of an alleged copy cannot preju. dice the insurer nor afford him any ground for reversal.

INSURANCE. - COUNTERCLAIM BASED UPON A PREMIUM NOTE is not sustainable when the promise in the note is to pay a designated sum “in

such portions and at such times as the directors of such company, agree ably to their act of incorporation and by-laws, may require," unless the directors have declared such notes or some portion thereof due and pay. able.

ACTION to recover upon a policy of insurance against loss by fire. The policy and a copy of the application were annexed to and made parts of a complaint. In the application, the question asked, of what materials the roof is, is answered, "iron and shingle." In the policy the description is, “iron roof and shingle building." The answer denied that the policy set out was the policy issued by defendants, "for that the same has been changed and altered, without their knowledge or consent, since its delivery"; that the words "and shingle," in the application and policy, were added therein without their knowledge, consent, or authority, and after the delivery of the policy to the plaintiff, and alleged that the plaintiff had procured concurrent insurance in excess of the sum for which permission was given in the policy to which the defendant had never consented in writing or otherwise. In his reply to defendant's answer, plaintiff alleged “that if any change was made in such policy or application as indorsed thereon, which plaintiff does not admit, the same was changed before such policy and application came into plaintiff's hands or was delivered to plaintiff, and plaintiff is not chargeable therewith; but he denies such change or alteration was made as charged in answer and amendments"; that defendant had full knowledge at the time the insurance was applied for of the amount of insurance plaintiff was taking out, and the companies and amounts in each. Verdict and judgment for plaintiff. Defendant appealed.

Baker and Haskins, for the appellant.

Woolson and Babb, for the appellee.

GIVEN, J. 1. On the trial, plaintiff offered in evidence the policy, and copy of application attached, to which defendant objected, on the ground that it was apparent on the face of the instruments that they had been changed, wherefore the burden was on plaintiff to account for the change before he could introduce the instruments in evidence, and also upon the ground that plaintiff confessed the change in his reply, and had not offered evidence tending to avoid it. This objection was overruled. The defendant asked an instruction to the effect that if the jury found that there was ground for

suspicion on the face of the instruments that the policy had been altered as alleged, then the burden was upon the party offering it in evidence to show "when such alleged alteration was performed, by whom, and the intent with which done." This instruction was refused, and one given that "the burden of establishing that the words were added to one or both of the places alleged after delivery of the policy rests upon the defendant." The overruling of said objection, the refusal to instruct as asked, and the instruction given, are assigned as

error.

The books are full of diverse decisions as to whether, on the production of a written instrument which obviously has been altered, it is incumbent upon the party offering it in evidence to explain its appearance. Some hold that an alteration apparent on the face of the writing raises no presumption either way; some that it raises a presumption against the writing, and therefore requires some explanation to make it admissible; others hold that it raises such presumption only when the apparent alteration is suspicious; and yet others, that it is presumed, in the absence of explanation, that the alteration had been made before delivery. The authorities are so numerous that we refrain from citing any, but refer to the American and English Encyclopædia of Law, under "Alteration of Instruments," where many of the authorities sustaining these different views are cited. This question was incidentally noticed, but not passed upon, in Jones v. Ireland, 4 Iowa, 69; Ault v. Fleming, 7 Iowa, 143; Wilson v. Harris, 35 Iowa, 507; and Wing v. Stewart, 68 Iowa, 13. These cases were disposed of upon other grounds, and the question before us has never been directly passed upon by this court. The issues involved in this defense are, whether the policy was altered as alleged, and if so, whether after delivery to plaintiff, and without authority of the defendant. In Jones v. Ireland, 4 Iowa, 69, it was held to be a question of fact for the jury whether there had been an alteration as alleged. The instrument was certainly competent evidence as bearing upon this question, and was therefore proper to go to the jury; but the contention is, whether the plaintiff was entitled to offer it without explanatory proofs.

If the appearance of the instrument or other testimony tended to support the charge of alteration, it was the duty of the court to submit the issue to the jury; but if the instrument or other proofs did not so tend, then the issue should