EXECUTION-EXEMPTION. CROW v. BRown. [81 Iowa, 344.] PROPERTY PURCHASED BY A PENSIONER with moneys received by him as arrears of his pension is exempted from execution, by virtue of the statute of the United States declaring that "no sum of money due or to become due to any pensioner shall be liable to attachment, levy, or seizure by or under any legal or equitable process whatever, whether the same remains with the pension-office, or any officer or agent thereof, ... but shall inure wholly to the benefit of such pensioner." ... Davis and Wells, for the appellant. Dale and Brown, for the appellees. ROTHROCK, C. J. 1. In the month of October, 1875, the defendant Brown recovered a judgment against the plaintiff for the sum of four hundred dollars and costs. At that time the plaintiff was insolvent. The plaintiff was a soldier in the war of the rebellion, and in the month of October, 1886, he received a pension from the United States on account of physical disability incurred while in the military service. He was allowed and paid the sum of $1,440 as arrears of pension. Upon receiving the said sum of money he bought 120 acres of land, for which he paid out of said pension money the sum of five dollars an acre. He built a house on said land into which he moved his wife and family, and has since occupied the premises as a homestead. On the eighteenth day of May, 1889, the defendant Brown caused an execution to be issued on said judgment, and levied on the land, and by this action the plaintiff seeks to restrain the defendant Pomroy, who is sheriff, from selling the land in satisfaction of the judgment. In the case of Webb v. Holt, 57 Iowa, 712, it was held that pension money was exempt from the payment of the debts of the pensioner while it was in course of transmission to him,. but not after it came into his possession. This construction of section 4747 of the Revised Statutes of the United States was adopted by a majority of this court. The same principle has since been adhered to in the cases of Triplett v. Graham, 58 Iowa, 135; Baugh v. Barrett, 69 Iowa, 495; Farmer v. Turner, 64 Iowa, 690; and in Foster v. Byrne, 76 Iowa, 295. In the first and last of the cited cases, Mr. Justice Beck and the writer hereof dissented from the opinion of the majority.. No formal dissent was entered in the other cases. Since the inal opinion was filed on rehearing in the case of Foster v. Byrne, 76 Iowa, 295, the personnel of this court has been changed, and upon a full examination of the question, a majority of the court are of the opinion that the property purchased with pension money is exempt from execution or attachment under the act of Congress above cited. The reasons for such holding are fully set out in the dissenting opinions above referred to, and need not be repeated here. It is sufficient to say, that if force and effect is to be given to that clause of the act of Congress which provides that pension money "shall inure wholly to the benefit of the pensioner,' to the exclusion of his creditors, there appears to us to be no escape from the conclusion that the property purchased with pension money is exempt. Any other construction of the law would permit creditors to subject the money as soon as it reaches the hands of the pensioner. It is correct, as claimed by counsel for appellees, that the weight of authority is contrary to our present holding. But courts are not always controlled by the weight of authority. If they were, the duties of courts of last resort would be simply to ascertain the number of cases involving the question, and follow the majority. There is the other important consideration, that the weight of authority should commend itself to the judgment and conscience of the court having before it the question for determination. If the rule adopted by this court heretofore were such as that rights may have accrued by reason of the rule, whereby the law as declared has become what is known in the law as a rule of property, we might well hesitate to overrule the cases above cited. But no such a result will follow our present holding. The relation of the creditor of the veteran pensioned soldier has been in no sense changed by the decisions of this court. The defendant in this action has not extended credit to the plaintiff by reason of the former decisions of this court. The decree of the district court is reversed. ROBINSON, J., dissented. He claimed that the words "shall inure wholly to the benefit of such pensioner" were qualified by the preceding clause whether the same remains with the pension-office, or any officer or agent thereof," and therefore that when the moneys left that office and its agents, and was received by the pensioner and invested by him in other property, there was nothing in the act of Congress, or elsewhere, which exempted such property from execution; and that this view has been the one generally reached by the various courts to which the question has been presented, he established by citing the following: Rozelle v. Rhodes, 116 Pa. St. 129; 2 Am. St. Rep. 591; Friend v. Garcelon, 77 Me. 25; 52 Am. Rep. 739; Crane v. Linneus, 77 Me. 59; Cranz v. White, 27 Kan. 319; 41 Am. Rep. 108; Jardain v. Fairton Savings Fund Ass'n, 44 N. J. L. 376; Robion v. Walker, 82 Ky. 60; 56 Am. Rep. 878; Faurote v. Carr, 108 Ind. 123; Spelman v. Aldrich, 126 Mass. 113; Hissem v. Johnson, 27 W. Va. 652; and that the only case necessarily in conflict with those authorities was Folschow v. Werner, 51 Wis. 85; though a dictum to the like effect could be found in Hayward v. Clark, 50 Vt. 612. EXECUTION-EXEMPTION. -The doctrine of the principal case, to the effect that property purchased with pension money is exempt from execution, overruling Foster v. Byrne, 76 Iowa, 295, is followed in Dean v. Clark, 81 Iowa, 753. In accord with the principal case, also, is Yates County Nat Bank v. Carpenter, 119 N. Y. 550; 16 Am. St. Rep. 855. PENSIONS — EXEMPTION. — As to when money resulting from pensions becomes subject to garnishment, see Rozelle v. Rhodes, 116 Pa. St. 129; 2 Am. St. Rep. 591, and extended note 596-598. COLES v. Kennedy. [81 IOWA, 860.] CONTRACTS.- PROMISE IS NOT WITHOUT CONSIDERATION when it is to pay $1,750 for 3,500 shares of the capital stock of a mining corporation, though the only property of the corporation is a mining claim in Arizona, prosecuted to the extent of driving a tunnel for a short distance and sinking a shaft about twenty feet, and in which shaft a small vein of silver ore nas been found, but not in quantities sufficient to justify milling the same; nor is the consideration of the promise so inadequate as to constitute a badge of fraud. CORPORATION MISREPRESENTATION TO INDUCE PURCHASE OF STOCK. — Agreement to purchase stock in a mining corporation, induced by representing that one who was known as a successful business man of large experience and capacity had subscribed and paid for five thousand shares of such stock, when in fact he had a secret contract exonerating him from making any payment therefor, is obtained by fraud, and will be canceled by a court of equity. F. M. Stuart, for the appellant. Mitchell and Penick, for the appellees. GIVEN, J. The testimony shows that in 1880 appellant was the owner of a mining claim in Arizona, called the "Mina Rica," that had been prospected to the extent of driving a tunnel for a short distance, and sinking a shaft to about twenty feet. A small vein of silver ore was found in the shaft, but not in quantities to justify milling the same. In the spring of 1880, appellant returned from Arizona to Chariton, bringing with him specimens of ore which he represented to have been taken from his claim. He proceeded to organ ize a joint-stock company for gold and silver mining in Arizona, "and to purchase the three-fourths interest of the Mina Rica mine." A company was organized with a large capital stock, divided into shares of twenty dollars each. The appellee subscribed for four thousand shares of stock, to be paid for at "fifty cents per share, as per agreement with J. W. Kennedy and R. M. Moore." The contract in question was executed and acknowledged April 1, 1880. By it appellee acknowledged himself to be indebted to the appellant in the sum of $1,750, to be paid on or before April 1, 1881, and if not paid at that time, appellee was to make to appellant a warranty deed for a certain lot in Chariton. If one half of said sum was paid within the time named, appellant was to have a deed for the east half of said lot. The only consideration for this contract was three thousand five hundred of the four thousand shares subscribed for by appellee, the other five hundred shares being given to him free of charge. After the organization of the company, appellant gave to appellee and other subscribers orders on the company for their stock. These orders were taken up, and the parties credited with their stock, and statements issued to them showing the amount they were entitled to. As the company desired to raise funds by the sale of stock, it was resolved that none should then be issued to the promoters. 1. But two questions are involved in this case, to wit: Was the agreement without consideration? and was the plaintiff induced to sign the same by fraud? In considering these questions, we are to look at the facts as they were then known to the parties. It is not true, as urged, that all the mining company had was a hole in the ground, twenty feet deep. It had the right to prosecute its business of mining upon that claim to whatever extent it pleased. True, the result was uncertain; but it owned a mining claim that had been prospected to the extent stated, located in a mining region in the vacinity of valuable mines, and had at least an inviting show of valuable ore. The consideration for the agreement in question was a large amount of stock in the company owning this mining claim, with its limited development, and the right to develop it indefinitely, There was certainly not a want of consideration for this contract. 2. We next inquire whether the appellee was induced to execute this contract by reason of fraud, as alleged upon the part of the appellant. It is urged that there is such inade quacy of consideration as to indicate fraud. There was great uncertainty as to what appellee might realize out of the consideration moving to him, but it was not so inadequate as to constitute a badge of fraud. The fraud alleged is, that to induce appellee to subscribe for stock in the mining company, and to execute said agreement, appellant exhibited specimens of silver ore containing large and rich proportions of silver, and caused it to be represented to appellee that said ore was taken from the Mina Rica mine; that appellant represented to appellee that one S. H. Mallory had subscribed and paid for five thousand shares in the said mining company; that each of said representations was false and fraudulent; that said mine did not have any silver or gold ore in it, and never had; that the ore exhibited to appellee did not come from and was not taken from said mine; that S. H. Mallory had subscribed for five thousand shares with a secret contract with defendant that they should cost him nothing. All the witnesses testifying upon that subject agreed in stat ing that there was silver ore in the shaft sunk upon the claim. Appellant testifies that the specimens of ore which he exhibited to appellee were taken from that claim, and this testimony stands uncontradicted by any reliable evidence. S. H. Mallory had resided in Chariton for many years, and was known in the community as a man of large business experience and capacity, and as a successful business man, whose name as a subscriber would be influential in inducing others to take stock in the mining company. While it is true that Mr. Mallory's name follows that of appellee on the subscription list, it appears that he had agreed to take stock previous to the time the list was circulated for signatures, and that the fact of his agreeing to take five thousand shares of the stock was held out to appellee as an inducement to execute the contract in question. The testimony shows that Mr. Mallory was to have his stock free of charge, and that it was given to him to secure the influence of his name in procuring appellee and others to subscribe. The fact that Mr. Mallory was not to pay for his stock was concealed from the appellee To have disclosed it would have been to defeat the very purpose for which the five thousand shares were given to Mallory. We have no doubt but the belief that Mr. Mallory had subscribed for five thousand shares of the stock, and that he had or was to pay for the same, operated as an inducement to appellee to subscribe for stock, and execute the contract in |