highways: in

cities and

towns.

Knowles v. The City of Muscatine.

WRIGHT, J.-This road was established in 1854, is one hundred feet wide, and located entirely within the limit 1. ROADS and of the city of Muscatine. The first question incorporated is, whether the County Court had the power to establish this road within the city limits. It is conceded that the power existed under the general powers of the County Court, unless it was taken away by some special statute. This, it is claimed, was done by sections 9 and 11, p. 248, Laws of 1839, and the amended city charter, 1842. Laws of 1841-2, p. 120. These statutes confer the power to regulate and improve the lanes. and alleys; to regulate the width of sidewalks, and provide that said lanes and alleys, including the roads leading from the city for one mile, shall constitute one road district. There is no power in these provisions to open a street or road. The power to regulate and improve does not carry with it the right to condemn and open. The general power conferred, therefore, upon the County Court to establish roads throughout the county is not affected or repealed by these special provisions, and the objection is consequently overruled.

It is next claimed that the statute (Code of 1851, §§ 515, 516) contemplates that a public road shall not exceed 2.: width: sixty-six feet in width, and that there was no Irregularity. power, therefore, to establish this road of the width of one hundred feet. The language of these sections is not free from doubt; but conceding the construction claimed, and the inquiry is, was the order void, or erroneous merely? It appears that the County Court had full and complete jurisdiction over the parties and the subject-matter. The order made was never appealed from, but remained in force and virtue. Under such circumstances we incline to the opinion, and so hold, that the order was not void, but irregular or erroneous merely. This being so, the claimed defect could not avail plaintiff' VOL. XX.-32

Elmore v. Higgins.

in this collateral proceeding. Sustaining this view, see Davenport Mutual Saving Fund and Life Association v. Schmidt, 15 Iowa, 213; The State of Iowa v. Berry, 12 Id., 58, and cases there cited.

Affirmed.

ELMORE V. HIGGINS et ux.

1. Contracts: COTEMPORANEOUS AGREEMENTS. A cotemporary indorsement made upon the back of a promissory note which was secured by mortgage, becomes a part of it, and is binding upon the parties and qualifies and restricts their contract; and in construing the contract, the note, the indorsement and the mortgage will be considered together and effect be given to every expression if this can be fairly done.

2. ——: CONTRACT CONSTRUED. On a promissory note secured by mortgage, a cotemporaneous indorsement was made by the parties as follows: "The within mentioned note is confined to a certain mortgage of even date, given by said Amando D. Higgins and Mary T. Higgins to Waldo J. Elmore." Held, That the payee of such note is confined in his remedy to a foreclosure of the mortgage, and was not entitled to a personal judgment.

Appeal from Tama District Court.

THURSDAY, APRIL 12.

THIS is a proceeding to foreclose a mortgage executed by the defendants, Amando D. Higgins and Mary T., his wife, to secure the payment of a promissory note made by Amando D. Higgins to the plaintiff. The petition was in the ordinary form. The answer contained two counts. In the first, the defendant admitted the making and execution of the note and mortgage. The second count pleaded facts intended to deny the plaintiff's right to a personal judgment, and a general execution for any balance which might remain after exhausting the mort

Elmore v. Higgins.

gaged estate. The right to a foreclosure against the property was not contested. The second count of the answer, in substance, alleges that at the time of the execution of said note, and prior to the execution and delivery of the same, and for a valuable consideration, said Waldo J. Elmore and said Amando D. Higgins agreed that the remedy of plaintiff in any proceedings to collect said note, should be confined to the avails of said mortgage; that is to say, to the amount made by the sale of the mortgaged premises, without any personal judgment or recovery against said Amando D. Higgins; and that at the same time with the making of said agreement, and before the delivery of said note, a memorandum thereof was cotemporaneously indorsed on said notes in the words and figures following: "The within mentioned note is confined to a certain mortgage of even date, given by said Amando D. Higgins and Mary T. Higgins to Waldo J. Elmore.

"AMANDO D. HIGGINS, "WALDO J. ELMORE."

Which memorandum (as defendant alleged) was understood by both parties to express the agreement afore

said.

To the defense, as set out in the second count of the answer, the plaintiff, Waldo J. Elmore, interposed a demurrer, assigning the following reasons therefor:

"1. Said indorsement or writing set forth in said second count, does not show nor contain, in itself, the meaning and agreement assigned to it.

"2. Said indorsement is ambiguous, indefinite and absolutely unintelligible; therefore it cannot be aided or cured by averment or parol testimony.

"3. Said indorsement is too vague and ambiguous to control, vary and contradict the positive promise on the face of the note."

Elmore v. Higgins.

The demurrer was sustained and judgment rendered against the defendants for the amount of the note, and a decree of foreclosure, as prayed in the petition.

Amando D. Higgins appeals, and assigns the following

errors:

First. The court erred in sustaining said demurrer upon each cause therein assigned.

Second. The court erred in rendering a personal judgment for the amount of the note against the said Amando D. Higgins.

G. H. Struble for the appellant.

1. A cotemporaneous memorandum on a note, or even on a separate piece of paper, is a part of the note, and qualifies and restricts it, and will bind all parties. 4 Pars. N. & B., 539; Miller v. The Receiver of the Franklin Bank, 1 Paige, 445; Rogers v. Kneeland, 10 Wend., 218; Keeler v. Bartine, 13 Id., 114.; Heyrood v. Pernio, 10 Pick., 228; 2 Gibbs (Mich.), 408; Wheelock v. Freeman, 13 Pick., 165; Barnard v. Cushing et al., 4 Metc., 230; Hunt v. Livermore, 5 Pick., 395.

2. Effect must, if possible, be given to every expression in the contract; and the rule is carried so far that it is said to be the duty of courts to give to all doubtful expressions such an interpretation as will make them produce some effect. Chit. on Cont., 70; Smith on Const. Stat. § 52; Ward v. Whitney, 8 N. Y., 446; Hamilton v. Taylor et al., 18 Id., 358; 36 Mo., 28; 42 Id., 229.

3. When a contract is capable of two significations. it should be understood in that in which it will have some operation, rather than in that in which it will have none. Poth. Obl., pt. 1, ch. 1. § 1, art. 7; Mariner v. Stone, 2 Cow., 781.

4. Written instruments are to be interpreted according

Elmore v. Higgins.

to their subject-matter; and it is obvious that parol or verbal testimony must be resorted to in order to ascertain the nature and qualities of the subject to which the instrument refers. 1 Greenl. Ev., § 286; Heldelrand v. Fogle, 20 Ohio, 147; Perkins v. Lyman, 11 Mass., 76; 13 N. H., 275; Field v. Schricker, 14 Iowa, 119.

The intention of the parties must be collected from the whole instrument, and in order to carry that intention into effect, the literal import of the words, when inconsistent with the intention so ascertained, may be disregarded. 5 Duer (N. Y.), 336; Atwood v. Cobb, 16 Pick., 229; Decker v. Brown and Furniss, 3 Duer, 291; 10 Gratt., 318.

H. E. J. Boardman for the appellee.

I. A writing cannot even be reformed in a court of equity, when it is clear that nothing was omitted which was intended to have been incorporated. If no fraud or mistake is claimed, the writing must stand, however it falls short of expressing the intention. Dwight v. Pomeroy, 17 Mass., 302; Gelpcke, Winslow & Co. v. Blake, 15 Iowa, 391.

II. Parol testimony is never admissible to explain a patent ambiguity in a written instrument, where something must be added to make it intelligible. The writing is simply void. Am. Law Reg., 1860 (Jan.); 2 Pars. Cont., 566; Hawkins v. Edwards & Turner, 1 Iowa, 426.

III. It is a rule that the note and the mortgage are to be taken by the corners, and a fair interpretation given to it as a whole, and surely a square promissory note will not be considered as contradicted or varied by a cotemporaneous memorandum, when such memorandum is equally susceptible of an interpretation in harmony with the note, or as an ear mark. 2 Pars. N. & B., 542.