mits the contract as set up by his co-de- | fendant, and alleges that it was the only contract entered into by the parties. He alleges that the value of the land traded by plaintiff to defendants is $2,200, less the price at which it was estimated in the trade, which was fixed at plaintiff's request, but was not intended by the parties as the actual price allowed for the fund in the trade. This allegation of the answer was stricken out, on motion, on the ground that it set up a variance and change of the written contract proposed to be proved by parol.

The evidence tends to show that the defendants were co-partners, and as such owned the stock of goods and Nebraska land traded to plaintiff. The negotiations were begun by the plaintiff and his agent with both of defendants, but defendant C. G., with the assent and direction of the other defendant, went with plaintiff and his agent to see the plaintiff's farm, and was authorized to complete the trade. After the farm was seen by the defendant a proposition was made to put the Nebraska land into the trade, which was finally accepted, after the representations as to its quality and character were made by defendant. Plaintiff had no knowledge of the value and character of the land, and relied upon defendants' representations in making the trade. Defendants knew the character of the land, having before seen it and examined it. The evidence shows that the land was of the character and value alleged in plaintiff's petition. The written contract entered into is in the following language: "Walker, Iowa, April 7th, 1'87. This contract, made and entered into this day, witnesseth, that 1, Isaiah Stanhope, bargain and sell to Swafford Bros., of Mt. Vernon, Iowa, and agree to convey by perfect warranty deed, with abstract of title, to said Swafford Bros., the following: My farm owned and occupied by me, and located three miles north-east of Walker. Price of farm, $8,480. Deed to be made at once, and possession to be given immediately. Also, $700 of farming Implements and hay and corn, as per agreement, and as per bill made out this day. Said Swafford Bros. are to pay for said farm in goods at their marked cost price. Said goods are their general stock of merchandise and fixtures in Mt. Vernon, Iowa. Also, 320 acres of land in Custer county, Nebraska, at $2,240. And I, Isaiah Stanhope, am to pay $60 to said Swafford Bros., in cash. Providing the stock of goods should fall short of $7,000, then the amount less than $7,000 is to be taken out by Swafford Bros., leaving the same amount of the $700 in farm implements with said Stanhope. The aboveland deeded by Stanhope to Swafford Bros. includes 25 acres in Linn county. [Signed] ISAIAH STANHOPE. SWAFFORD BROS." This contract was signed by C. G. Swafford in the firm name. The other defendant assented to the trade without objection.

2. The defendant L. G. asked the court to instruct the jury that, as there was no evidence showing that he made, or had knowledge of, the false representations, their verdict should be for him. The instruction was rightly refused on the ground

that, as defendants were co-partners, and the land was traded by one of the defend.. ants for the co-partnership, the other party is bound by the contract and representations though he did not know the representations were made. The trade was a partnership transaction, which one partner was competent to make, and thereby bind the other partner.

3. The court gave an instruction as to the effect of a ratification of the contract by L. G. Swafford, which is now the subject of complaint. No exceptions were taken to any of the instructions at or subsequent to the trial, but this one was objected to on the motion for a new trial. But no grounds of objection to the instruction are stated, as required by Code, § 2789. We cannot, therefore, consider the objection now made to the instruction.

4. The court rightly struck out the allegations of the answer as to the value of the farm traded by plaintiff. The written contract settled the price to be allowed for the farm. It cannot be altered by parol evidence.

5. It will be observed that the action is to recover for false representations inducing plaintiff to make the trade. Now, if it be assumed that all the terms of the contract are embodied in the writing, and the false representations are not expressed therein, plaintiff may recover thereon, for the reason that the action is not upon the contract, but for false representations,a course of action other and independent of the contract. If one be inveigled or induced by false representations to enter into contract of a sale of property, he could maintain his action on the false representation; and would not be required to sue on the contract of sale in order to recover his damages therefor. his damages therefor. This is plaintiff's case.

6. The evidence amply supports the verdict. The representations were clearly shown, and by equally satisfactory evidence they were proved to be false. Upon all points the evidence supports the verdiet.

No other questions demand attention. The judgment of the district court is affirmed.

(80 Iowa, 84)

SMITH V. CITY OF OSAGE. (Supreme Court of Iowa. May 15, 1890.) ADVERSE POSSESSION-DEDICATION-ESTOPPEL. knowledged, and the grantor, having remained in 1. Where a conveyance of lands was not acpossession for several years, executed a new deed, in proper form, to another, and gave him possession, he held adversely to the title of the first grantee.

2. Lands were conveyed for the express pur pose of causing them to be laid out into village streets, alleys, and a public square. But the lots, and a plat was made and recorded, showing grantor remained in possession, and afterwards granted to another, who entered and held under claim of title. The streets and square were never opened, and the village, having become a city, assessed the whole tract for municipal taxes. Held, that the city is estopped from claiming easements in the land under the original dedication.

Appeal from district court, Mitchell county; JOHN C. SHERWIN, Judge.

Action to quiet the title of plaintiff in

certain lands. After a trial on the merits, a decree was entered in favor of plaintiff, as prayed for in his petition. Defendant appeals.

L. M. Rice, for appellant. G. E. Marsh, for appellee.

BECK, J. 1. The plaintiff claims to hold the title to the land in controversy, and alleges that defendant sets up an adverse title thereto. The defendant in its answer alleges that the land in question was platted and laid off in lots, streets, alleys, and a public square, and that the streets, alleys, and public square were in that way dedicated to the public use. It is not claimed that defendant holds the title of any of the lots, and the only claim or interest it has is as a representative of the public, or as a municipal corporation having charge and control, for the benefit of the public, of land dedicated to public use, as streets, alleys, and public grounds. It does not appear that any of the lots laid off on the land in question have been sold, or that defendant is the representative of the owners of such lots, or the guardian of their interests. The plaintiff pleads various defenses to defendant's claim that a part of the land has been dedicated to the public use, and is held subject thereto. We find it necessary to consider but two defenses, as, in our opinion, the decision of the case turns thereon. Other defenses will not be stated nor considered in this opinion.

2. Plaintiff, in his answer to defendant's claim, pleads the statute of limitations as a defense to the action, alleging that he has been for 30 years in the actual, open, and notorious possession of the land, which has been adverse to defendant, and the claim it sets up to the land. The facts, briefly stated, are these: Sarah E. Moore entered the land in 1854. In 1855 she united with her husband in conveying the land to Eaton and Jenkins for the purpose, expressed in the deed, of causing the land to be laid off into village lots by the grantees in the deed. It seems to be a deed with conditions creating a power and trust. This deed is not acknowledged. It was duly recorded. The owners of other tracts of land united with Eaton and Jenkins in laying off a large tract of land into village lots, and for that purpose caused a plat of the land to be filed showing lots, streets, alleys, and a public square. This was in 1855. Objections are made to the regularity and sufficiency of the plat, and the act of dedication by the owners of the land, indorsed on the plat. Mrs. Moore continued in the possession of the land until 1871, when she conveyed it to one under whom plaintiff claims. Plaintiff now claims that he and his grantor, and those under whom they claim, have been in the actual, open, and notorious possession of the land, claiming the title thereto against all men. It appears that the land has been used and cultivated as a part of a farm. The streets and alleys have never been opened, and the public square has not been occupied by the public, but has been in cultivation as a part of a farm. Plaintiff insists that he and those under whom he claims have been in

adverse possession of the land, and that defendant's claim to the land is barred by the statute of limitations. Defendant maintains that, as plaintiff claims under Mrs. Moore by a subsequent conveyance, his title cannot be adverse to the city, whose claim is based upon a prior conveyance executed by her; that, as plaintiff's and defendant's title have a common source, from the same grantor, Mrs. Moore, plaintiff's title cannot be adverse to defendant's claim. We know no rule recognized in this state extending so far. If there were, no case of adverse holding could arise in this state, where all titles are derived from the government. No title not capable of being traced back to the government is valid here, for all titles have their origin in the government, which is often reached through fewer mean conveyances than were executed in this case. The rule which counsel presents, we think, cannot extend further than to exclude the doctrine of adverse holding from cases wherein the parties hold under the same title, these titles meeting in a common source, in such a manner as that one is held to be in subordination to, or dependent upon, the other, and not independent of, or in conflict therewith.

In the case before us, plaintiff's and defendant's title nowhere meet in a common source. It is true they are both traced to Mrs. Moore. Each party claims under a deed executed by her, but each insists that her deed under which the other claims is invalid, and does not pass title, and the party acquires no title under it. With the deeds executed by Mrs. Moore the conflict of title begins. The respective parties holding the titles originally under her deeds hold adversely, and in conflict with each other. It cannot be said that plaintiff does not hold adversely to defendant, because Mrs. Moore herself, while in possession of the land, would not be regarded as holding adversely to defendant. But the same cannot be said of her grantee under whom plaintiff claims. He entered upon the land under a title in conflict with defendant's claim, and held it adversely thereto. He held color of title, for his claim was based upon a deed valid in form, under which he entered and held the land. His possession thereof was adverse as to defendant. The public whose right to the use and occupancy of the land is attempted to be established by defendant, as the representative of the public, bases it in this action upon the facts and doctrines of the law above recited. City of Pella v. Scholte, 24 Iowa, 283; Davies v. Huebner, 45 Iowa, 574. City of Waterloo v. Mill Co., 72 Iowa, 437, 34 N. W. Rep. 197, is not in conflict with these views.

3. The defendant was not organized as a city until 1871, and has taken no steps to open the streets and alleys, or to secure the occupancy by the people of the public square, but during all the time has assessed the land, and levied taxes thereon, and collected them. Prior to the incorporation of defendant as a city the plaintiff, or those under whom he claims, paid the taxes. Prior to 1867 the land was sometimes taxed as lots, sometimes described on the tax-list according to the govern

ment subdivisions, and the conveyances of the land described it as lots, according to the plat. The deed executed by Mrs. Moore and her husband describes the land by the congressional subdivisions, and also as lots, according to the plat. Subsequent to 1867 the land was described upon the tax-list by the government subdivisions. The public square and the streets and alleys were in this manner subjected to taxation. It does not clearly appear for what years the corporation taxes were levied and collected, but we think each year after the incorporation of the elty in 1871, and certainly after 1876, it levied and collected taxes upon the land, describing it according to the government subdivisions. Defendant is charged by law with the control of the streets, alleys, and public grounds within its borders, and may vacate them, and restore them to private use. Code, § 464. It may exercise the authority and power of taxation over private property and land held by individuals. It does not exercise such power over streets, alleys, and public grounds within its limits. In the case before us, it has permitted plaintiff, and those under whom he claims, to occupy the land, which has never been subject to public use, and it levies and collects city taxes thereon. The law regards this as a declaration by its acts that it holds no claim to the land, and as an abandonment of all claim to the public use of the lands. The city may vacate streets and other public lands, and restore them to private owners by proper action. The same end may be attained by abandonment and non-use, and by taxation, and in other ways treating the land as private property. The city will be estopped to set up any claim to land to, which the right of public use has been abandoned by subjecting it to taxation as private property. Simplot v. City of Dubuque, 49 Iowa, 630. Upon this point Bee Getchell v. Benedict, 57 lowa, 121, 10 N. W. Rep. 321; Adams Co. v. Railway Co.,39 Iowa, 507; Audubon Co. v. Emigrant Co.. 40 Iowa, 460; Austin v. Bremer Co., 44 Iowa, 155. We reach the conclusion that the action is barred by the statute of limitations, and that defendant is estopped to set up the claim of the public to the land in controversy. Other questions discussed by counsel need not be considered. The judgment of the district court is affirmed.

( Iowa, 114)

VAN AKIN et al. v. WELCH. (Supreme Court of Iowa. May 16, 1890.) ADMINISTRator's AccoUNT-OPENING-PLEADING.

1. Code Iowa, § 2475, provides that accounts of administrators, which have been settled without notice to persons interested in the estate, may be opened, on their application, within three months. Held, that where heirs and representatives apply within that time, and allege that no report was filed until over two years from the appointment, that it was then filled and approved without notice to them, that fees were allowed to attorneys for which no services were rendered, they make out

a case for relief.

2. Code Iowa, $ 2530, reads: "The provisions of this Code concerning the prosecution of a civil action .. shall be followed in special procoedings, not otherwise regulated, so far as appli

cable." Held, that such application was properly made by petition, and, where the administrator filed no answer and offered no proof, the allegations of the petition should have been taken as confessed, and the relief prayed for granted.

Appeal from district court, Johnson county; S. H. FAIRALL, Judge.

This is a proceeding to set aside the approval of an administrator's report, and to open an account therein set out, and for other relief. The district court dismissed the petition, and rendered judgment in favor of defendant for costs. The plaintiffs appeal.

Ranck & Wade, for appellants. A. E. Swisher and Joe A. Edwards, for appellee.

ROBINSON, J. The petition shows that plaintiff's are the heirs at law of Eliza D. Hill, deceased; that defendant was appointed administrator of her estate on the 27th day of May, 1886, and that he duly qualified as and entered upon the discharge of the duties of such administrator; that he filed no report of his doings as administrator until about the 16th day of July, 1888, and that on the 18th day of that month the report was approved; that no notice of the pendency of said report, or the approval thereof, was served upon plaintiffs, and no notice whatever was given of an application which said report contained for the allowance of $800 for fees paid certain attorneys for services alleged to have been rendered the estate of decedent. The petition alleges that the attorneys named therein performed no services for said estate for which they were entitled to compensation; that whatever services were rendered for which the charge was made was rendered to the estate of Thomas Hill, deceased, and to the heirs of Eliza D. Hill personally, and not to defendant, and that defendant never employed said attorneys; that the services were not worth the sum charged, and that it is exorbitant, and should be disallowed. The prayer of the petition is that the approval of the report be set aside, that the account be opened, and the petition be considered exceptions to the report; that the exceptions be sustained; the attorney's fee disallowed, and the executor required to account for the same; and that such other and further relief be given as the facts stated may warrant. A notice of the petition was duly served on defendant, and he appeared by his attorneys. No pleading was filed by defendant, and no evidence was offered. By consent the cause was submitted to the court on the petition, and a judgment was afterwards rendered as stated.

1. It cannot be doubted that, if the averments of the petition are true, the plaintiffs are entitled substantially to the relief demanded. The material question presented for our determination is whether they were entitled to that relief without evidence. Section 2475 of the Code provides that "accounts settled in the absence of any person adversely interested, and without notice to him, may be opened within three months, on his application." The petition in this case was filed within three months from the time the report was approved, and the case falls within the pro

vision quoted. The right given to a party adversely interested to have an account opened is not an absolute one, and, in a proper case, should be denied. But, as a rule, every person interested in the estate of a decedent should have an opportunity to present any objections he may have to the report of the administrator before his final discharge. In cases of this kind, he is given three months in which to make an application for a hearing after the report has been approved.

99

Appellee contends, however, that the action of the court in approving the report must be presumed to be correct, and to have been based upon sufficient evidence, until the contrary is shown; and that the burden was upon plaintiffs to overcome that presumption before the approval of the report should have been set aside, and the account opened. That may be conceded, and we are thus led to inquire if the presumption was in fact overcome. Remedies in civil cases are divided into "actions" and "special proceedings. Code, § 2504. Section 2520 of the Code is as follows: "The provisions of this Code concerning the prosecution of a civil action apply to both kinds of proceedings, whether ordinary or equitable, unless the contrary appears, and shall be followed in special proceedings not otherwise regulated, so far as applicable." In this case the application was properly made by petition, and, as there is no provision dispensing with an answer, the defendant was in default by reason of his failure to plead, and the averments of the petition stood confessed, by operation of law. Hence proof to sustain them was not required, and plaintiff should have been given relief substantially as demanded.

2. Appellee makes some objection to the assignments of error, but we deem them sufficient. He also insists that the petition shows that he discharged his duties with diligence and fidelity. However that may be, the facts admitted show that the account in question should not have been allowed. The judgment of the district court is reversed.

(80 Iowa, 117)

CITY OF CLINTON V. GRUSENDORF et al. (Supreme Court of Iowa. May 16, 1890.) INTOXICATING LIQUORS-STATE LAW-MUNICIPAL ORDINANCE.

By ordinance of July 18, 1879, § 1, the city of Clinton provided that "all saloons of every description," and "all places where intoxicating liquors are sold as a beverage, "should be kept closed after 11 o'clock at night. Subsequently, by Code Iowa, § 1523, the sale of intoxicating liquors was prohibited throughout the state. Held, that although the ordinance was thereafter void so far as it regulated places for the sale of liquor, yet, under section 482, which gives municipal corporations power to provide for the safety and morals thereof, it was still valid as to a place "commonly known as a saloon, where intoxicating liquors, beer, wine, pop, and cigars and ginger ale were sold; and one who kept open such a place after 11 o'clock was legally convicted thereunder.

Appeal from district court, Clinton county.

In June, 1888, the defendants were accused and convicted before the police court of the city of Clinton of the offense

of keeping a saloon open after 11 o'clock P. M. on the 14th day of June, 1888, contrary to an ordinance of said city. On defendants' appeal to the district court, the case was submitted to the court without a jury, on the following conceded facts: "That this presentation and case is brought under ordinance chapter 78 of the Ordinances of the City of Clinton, and that it was passed and adopted and published, in manner and form required by law, on the 18th day of July, 1879, by the council of the city of Clinton, and appearing in Book A of records of said city, on pages 619 and 620, and took effect August 1, 1879; that defendants' place of business, which they are accused of keeping open after eleven o'clock P. M. on the 14th day of June, 1888, was a place commonly known as a 'saloon,' where intoxicating liquors, beer, wine, pop, and cigars and ginger ale were sold, in violation of law and of said ordinance; and that defendants did keep said place open after eleven o'clock P. M. of said day for the sale of intoxicating liquors in violation of law, and for the sale of pop and ginger ale, and did so sell such beverages and liquors after eleven clock P. M. to various persons then and there visiting said saloon, situated at No. 314 Second street, in said city of Clinton. The first section of the ordinance is as follows: "Section 1. That all saloons, of every description, in the city of Clinton, and all places where intoxicating liquors are sold as a beverage, whether prohibited by the laws of the state of Iowa or not, are hereby required to be closed and kept closed from eleven o'clock P. M. till five o'clock A. M., from the first day of April until the first day of November in each year, and from eleven o'clock P. M. to six o'clock A. M., from the first day of November in each year to the first day of April in next following year, and also at all times during the Sabbath day." The second section prescribes the penalty. The district court held "that said ordinance is void, and the defendant not guilty, and he is hereby discharged; and judgment is hereby rendered in favor of said defendant, and against the plaintiff, for the costs herein taxed, at $; to which findings and judgment the plaintiff excepts

Robert R. Baldwin, for appellant. W. C. Grohe, for appellee.

GIVEN, J. 1. The questions presented on this appeal are whether the city had authority to pass the ordinance under notice, and, if so, whether it has not been superseded by subsequent legislation. Appellant contends that it seeks to regulate places where intoxicating liquors are sold as a beverage, and, as the keeping of such places are forbidden by law, the city has no authority to regulate them. At the time the ordinance was passed, the city had power to regulate beer and wine saloons, under section 463, Code, and the ordinance was evidently framed with a view to regulate such saloons. Chapters 8 and 143. Acts 20th Gen. Assem., made it unlawful to keep a place for the sale of intoxicating liquors, including beer and wine, and it followed that the city had no longer authority to regulate such places,