In this action by Ella F. Martin against C. E. Davis a writ of attachment issued, and Pendleton Hubbard intervened, alleging himself to be the owner of the property levied on thereunder while the same was in his possession. The jury found that the property belonged to Davis. Motion for a new trial was overruled, judgment on the verdict was entered, and intervenor appeals. C. E. Underhill, for appellant. McMillen & Kindall, for appellee. SEEVERS, C. J. It is sufficient to state that the plaintiff caused certain personal property to be levied upon by virtue of an attachment against the defendant. The intervenor appeared, and pleaded that he purchased the property of the defendant prior to the levy, and that it belonged to him. In answer to the petition of intervention the plaintiff pleaded that the purchase of the property by the intervenor was made for the purpose of hindering and delaying the creditors of the defendant, and was therefore fraudulent. Because it is not stated in the abstract that all the evidence is contained therein, we are required to determine only a single assignment of error. After stating the issue the court charged the jury as follows: "The vital question for you to determine is, who was the owner of the property mentioned in the petition of the intervenor at the time of the attachment thereof, to-wit, December 15, 1886? The intervenor, Hubbard, must show by a preponderance of the evidence-that is, by the greater weight of the credible evidence herein-that he was the owner, to entitle him to your verdict. If he (the intervenor) has thus shown that he was the owner, then intervenor is entitled to your verdict. (2) Whether intervenor was the owner is dependent upon the validity of the alleged purchase by Hubbard. If Hubbard bought the property in good faith, and paid therefor, and had no intent to cheat or defraud the plaintiff, Martin, or other of the creditors of Davis, then the sale is valid. If Hubbard did not make the purchase in good faith, if he bought it with intent to defraud Martin or other of the creditors of Davis, then the sale is invalid." Conceding that the assignment of error is sufficiently specific, counsel for the appellant contends that the foregoing instruction casts upon him the burden to establish that he purchased the property in good faith, and is therefore erroneous. The evidence tended to show that the intervenor had possession of the property at the time it was levied upon, but he did not rely exclusively on such possession. In making out his case the intervenor introduced evidence tending to show that he had purchased of and paid the defendant for the property prior to the levy of the attachment, and there is nothing in the record which indicates that it was made a material question on the trial which party had the burden. Indeed, we feel warranted in concluding from the record that the only material question on the trial was whether the intervenor purchased the property in good faith, or whether such purchase was fraudulent. The question, who had the burden, was practically ignored by the parties and the court. It will be observed that the charge does not in terms state which party had the burden, and it states the law correctly, but it possibly does not go far enough. As the case was tried, however, it fairly presented to the jury the material question to be determined. Under the circumstances it cannot be said that error affirmatively appears. If the intervenor deemed it important to have the jury instructed as to which party had the burden of proof, he should have asked an instruction to that effect. Aflirmed. KENT v. FRENCII. (Supreme Court of Iowa. December 19, 1888.) 1. ARBITRATION AND AWARD-SUBMISSION-CONSTRUCTION OF AGREEMENT. Although an agreement to arbitrate provides that the decision of two of the three arbitrators shall be binding, yet all three must be present at every stage of the hearing, or the award of two will not be binding. 2. SAME-WAIVER OF OBJECTION. Where a party appears before the arbitrators, and files a protest against their jurisdiction, on the ground of the absence of one of them, he does not waive his right to set up this objection to the award by the fact that he subsequently participates in the hearing. Appeal from district court, Wapello county; CHARLES D. LEGGETT, Judge. E. S. Kent appeals from a judgment entered against him on award of arbitrators, in favor E. C. French, appellee. Chas. Hall and A. C. Steck, for appellant. Williams & Jacques, for appellee. ROTHROCK, J. On the 21st day of December, 1885, the parties entered into an agreement in writing, by which they submitted certain matters in difference between them to the arbitration of W. B. Wycoff and W. H. Stevens. The agreement provided that said arbitrators were authorized and empowered to call in and appoint another person to act with them in the consideration of the matters in dispute, and that the decision of any two of the three should be conclusive. In February, 1886, the defendant made application to the court for a resubmission of the matter to the arbitrators. It does not appear that any award had at that time been made, but it does appear that one H. M. Cockerill had been acting as an arbitrator with the two named in the written submission. On the 27th day of December, 1886, the court ordered a resubmission to the three arbitrators above named. Notice of the order was given to them, and W. B. Wycoff refused to further act in the premises. The other two met, and, before taking any action in the way of hearing evidence or arguments of counsel, the plaintiff appeared and filed a written protest against proceeding with the hearing before two arbitrators,-one ground of which protest was that the articles of submission did not confer jurisdiction upon them, one of said arbitrators having resigned and refused to act as such. The arbitrators Stevens and Cockerill proceeded with the hearing. Evidence was taken, and an award was made and filed. The plaintiff excepted to the award. His exceptions were overruled, and judgment was rendered thereon. It is to be presumed that Cockerill was chosen by the arbitrators named in the written submission. They alone had the authority to select him. By the terms of the submission he was not a mere umpire to decide questions upon which the other arbitrators might differ. He was to act with the others in hearing the evidence, the arguments of counsel, and making up the award. If any two of the three should agree as to the rights of the parties their award should be binding. But two of the three had no right nor authority to hear and determine the controversy without the aid of the other. This is so well settled as to require neither argument nor discussion. 1 Amer. & Eng. Cyclop. Law, 683, and cases cited. It is there said that "the disputants are entitled to the exercise of the judgment and discretion, and to the benefits of the views, arguments, and influence, of each one of the persons whom they have chosen to judge between them, and they are entitled to these, not only in the award, but at every stage of the arbitration, even where a majority are empowered to decide." See, also, Cary v. Bailey, 55 Iowa, 60, 7 N. W. Rep. 410. It is claimed by counsel for appellee that he was without fault in the matter of the refusal of Wycoff to further act as arbitrator, and that such refusal was by reason of plaintiff's procurement. We do not determine that this, if true, would avail the appellee. It is enough to say that we do not think the record establishes the fact that the arbitrator refused to act at the instance of the plaintiff. It is further claimed that the plaintiff waived the error now complained of by appearing at the trial and submitting to a hearing before two arbitrators. But he did not withdraw his protest, and he waived no right to object to the jurisdiction of the arbitrators by appearing and mak ing the best showing that he could. As the judgment must be reversed because the hearing was had before but two of the arbitrators, it is not necessary to give attention to other alleged errors discussed by counsel. Reversed. STATE v. PIERCE. (Supreme Court of Iowa. December 19, 1888.) BLACKMAIL-WHAT CONSTITUTES. A conviction on indictment under Code Iowa, § 3871, relating to the offense of making malicious threats with intent to extort money, cannot be sustained by evidence that defendant, a constable, had a search-warrant for the premises of the complaining witnesses; that he notified them of the fact, and signified his willingness, for a bribe, to refrain from making search; that the witnesses accordingly gave him some money; and that he assured them the matter would be dropped. Such evidence shows an entirely different offense. Appeal from district court, Polk county; MARCUS KAVANAUGH, Judge. Defendant, Frank Pierce, was indicted and convicted for the offense of making malicious threats with intent to extort money, and he appeals. A. A. Haskins, for appellant. A. J. Baker, Atty. Gen., for appellee. BECK, J. 1. The indictment charges the crime of which defendant is ac cused in the following language: "The said Frank Pierce, on the 15th day of September, A. D. 1887, in the county of Polk aforesaid, did then and there willfully, maliciously, unlawfully, and feloniously threated by verbal communication to W. R. Trotter and J. O. Cole to search the premises of W. R. Trotter, J. O. Cole, and B. D. Miller, the same being a drug-store situated in the Hotel Goldstone,' in East Des Moines, Iowa, and to seize the intoxicating liquors therein kept, which said liquors were then and there the property of said W. R. Trotter, J. O. Cole, and B. D. Miller, which said seizure would injure the property and business of the said W. R. Trotter, J. O. Cole, and B. D. Miller; with the willful, unlawful, and felonious intent to extort money from them, the said W. R. Trotter, J. O. Cole, and B. D. Milier, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Iowa." It is shown by the evidence that defendant at the time of the act alleged in the indictment was a constable, and Miller, Cole, and Trotter were partners in the drug business. In our opinion, there is not one word of evidence found in the abstract tending in the remotest degree to prove the threats or threatenings alleged in the indictment. The evidence which it is claimed tended in that direction is as follows: Cole testified that "along about the middle of September, I had a conversation with Mr. Pierce on the bridge. He said: Jim, I have a search-warrant for your place over there.' I said, 'Is that so?' and he replied, Yes, sir.' He walked on, and left me, and near the center of the bridge he stopped, and waited until I caught up with him, and he said, Jim, I hope you will appreciate this.' I said, Certainly;' and that is all there was to it." Miller testified that "about the 15th of September Mr. Cole reported to the firm that he had had a conversation with Frank Pierce. Within a day or so after that I met Pierce on Mulberry street, right north of the court-house. I shook hands with him, and I said to him, Frank, we being told that you have a warrant for our place.' Says I: We are doing a straight, legitimate business, and we do not want our stuff carried off. We do not want the report to go out that we have been searched, because it will hurt our business.' Well,' he says, if you fellows can come up and do something for me, it is all right. I am not in this thing for my health.'" Trotter gave the following evidence: "I was in the drug business,-a member of the firm of Trotter, Miller & Cole. Last September, Cole reported to me that Frank had a warrant for our place, and I reported it to Miller. About that time I met Frank on East Locust street, and passed the time of day with him. He said he would be around to our place in a little while. He came around, perhaps an hour afterwards. Dr. Miller and I were standing in the front part of the store. I gave Frank $10. He remained a few minutes, and went out. I had a subsequent meeting and conversation with Mr. Pierce about three weeks afterwards. I met him in the north end of the court-house hall, and gave him $20 that I had with me, and that I had agreed to give him; and I told him we had now made him two payments, and that he could not do that so often; that he must let us off easy. He said he guessed we would not be bothered any more; to do what was right, and go ahead." No threats are shown by this testimony which are contemplated by the statute prescribing the offenses under which the indictment was found. It is in the following language: "If any person, either verbally or by any written or printed communication, maliciously threaten to accuse another of crime or offense, or to do any injury to the person or property of another, with intent thereby to extort any money or pecuniary advantage whatever, or to compel the person so threatened to do any act against his will, he shall be punished by imprisonment in the penitentiary not more than two years, or by fine not exceeding five hundred dollars." Cole, § 3871. The witnesses do not testify that defendant threatened to accuse the parties named of crime, or to do them or their property injury. They show that defendant negotiated with them for a bribe, for the omission on his part to discharge his official duty, which is a crime punishable under Code, § 3948. The foregoing evidence, which is denied by defendant in his testimony, shows that the witnesses were quite readily overcome by the temptation offered them by defendant. We need not pursue the inquiry suggested by defendant's counsel that they are particeps criminis as to the offense really committed, as it has nothing to do with the decision of this case. Other questions arise upon objection to various rulings of the court below. They need not be considered, as the judgment in the case, for the error pointed out, must be reversed, and our conclusion thereon will operate as a final disposition of the case. Reversed. STATE v. HARRIS. (Supreme Court of Iowa. December 19, 1888.) Appeal from district court, Polk county; J. GIVEN, Judge. BECK, J. The defendant was convicted of the unlawful sale of intoxicating liquors, and now appeals to this court. The cause was submitted without argument, brief, or assignment of errors, no counsel appearing for either party. We discover no error in the record. The judgment is therefore affirmed. STATE v. UTTERSON. (Supreme Court of Iowa. December 19, 1888.) Appeal from district court, Polk county; J. GIVEN, Judge. BECK, J. The defendant was indicted and convicted of nuisance by unlawfully selling intoxicating liquors, and now appeals to this court. The cause has been presented to us without appearance of counsel for either party, and no arguments or briefs have been filed. We have examined the case, and find no error in the record. The judgment of the district court is affirmed. MURPHY V. HANSCOME et al., (WARNER, Intervenor.) (Supreme Court of Iowa. December 19, 1888.) TRUSTS-RESULTING TRUSTS-EVIDENCE-SUFFICIENCY. Land, the title to which was in the name of decedent, was leased, mortgaged, improved, and controlled by him and his widow, as his, for nearly 20 years, during which time his mother resided with him and his widow, and made no claim or inquiry as to the title. The mother had delivered to decedent money, which he had invested in land, but what land did not certainly appear. Held, that a resulting trust in favor of the mother was not established in an action in which her original petition alleged an agreement that the title should remain in decedent's name, and the amended petition averred that title was taken by him without her knowledge or consent, and in which the only evidence was the random and uncertain declarations of decedent, and the indefinite testimony of the mother, then 76 years of age. Appeal from district court, Monona county; C. H. LEWIS, Judge. Partition by Mary G. Murphy against Emma J. Hanscome and others, the plaintiff being the widow, and defendants the heirs, of Watson R. Hanscome, deceased. Mary C. Hanscome intervened, alleging a resulting trust in the land in her favor. The intervenor having died pending suit, her executor, George E. Warner, was substituted. Judgment for intervenor, and plaintiff and defendants appeal. L. R. Bolter & Sons, for plaintiff. P. Hubbard, for defendants. lan & Kendall, for intervenor. McMil SEEVERS, C. J. Watson R. Hanscome died in August, 1879, leaving surviving him the plaintiff, his widow, and four minor children. At the time of his death he owned the legal title to certain real estate, and this action was brought to partition the same. Mary E. Hanscome, the mother of Watson R., intervened in the action, and pleaded that she gave her "son $300 with which to purchase some land on which to make her a home," and that the land in controversy was purchased with said money; that it "was agreed between her and her son that the legal title to said land should remain in her said son, Watson R. Hanscome, for the benefit of the intervenor, for a home in her old age." This petition was verified by the intervenor. An amended and substituted petition of intervention was afterwards filed, in which it is stated that her son took a deed in his own name for the land in controversy, "without the knowledge or consent of the intervenor." This petition was also verified by her. The relief asked by the intervenor is that "the legal title to the land be decreed to have been held by said Watson R. Hanscome in trust for this intervenor, and for her use and benefit," and that she be invested with the legal title thereto, and that she have such other relief as she is equitably entitled to. The court found that the intervenor had furnished the money to her son to pay for the land, and he had taken the title in his own name, without her knowledge or consent, and, the death of the intervenor being suggested, George E. Warner, executor, was substituted in her place and stead, and a judgment entered in his favor establishing a lien on the land for the money the court found the intervenor had furnished her son. The plaintiff and minor defendants appeal. The land in controversy was purchased by and conveyed to Watson R. Hanscome in February, 1868. He immediately entered into possession, and improved the same. He and the plaintiff were married in 1869, and they resided on the land for some years, when he moved to Onawa, where he died. While in Onawa he leased the land, and at all times after he purchased it used and controlled it as his own. The intervenor made her home with her son on the land, and also with him when he moved to Onawa. The plaintiff, in 1882, left Onawa, returned to the land, and thereafter occupied the same as her home, and has made valuable improvements thereon. The intervenor lived with the plaintiff on the land until |