[5] 3. The evidence clearly showed that there was a ratification by the local board after the plaintiff's service had been rendered; hence it was immaterial whether there was a prior contract. Taylor v. Woodbury County, 106 Iowa, 502, 76 N. W. 824. [6] 4. There was no evidence before the jury tending to show that disinfecting after measles was an unreasonable requirement on the part of the board of health, and the reasonableness or unreasonableness of the rule was not a matter for the consideration of the jury. building, as it is by the exercise of author- | approval of the bill by the local board of ity over the person. It will not be claimed, health was prima facie evidence only of the we apprehend, that the expense of medical value of the service, and it was for the jury attendance and the like is not chargeable to to say what such value was, under the enthe county under section 2570a, where the tire record. board has assumed the control of such person; and if the board considers it necessary for the public welfare that the premises be disinfected, although no quarantine has been maintained, we think the statute intended that the expense thereof should also be paid by the county. The statute leaves it with the board of health to determine what infectious or contagious diseases are a menace to the public health, and provides that the board shall also determine what steps shall be taken to best protect the inhabitants therefrom; and if, in the judgment of the board, it is wise to disinfect premises where no quarantine has been maintained it is clearly within its power to do so, and when it has done so we think the expense of such service is chargeable to the county under section 2570a. Before the enactment of this section, there was no authority in the statute for holding the county liable for such service. Schmidt v. Muscatine County, 120 Iowa, 267, 94 N. W. 479. And the statute was undoubtedly changed to meet the holding in that case. [2-4] 2. The plaintiff charged and was allowed $5 for disinfecting each building. On the trial, the defendant offered evidence tending to show that the charge was excessive, and for that reason it contends that it was error to direct a verdict for the plaintiff for the full amount of his claim. The testimony thus introduced was that of two men who had disinfected buildings at other times, under the direction of the officers of the town, and it showed that the service rendered by the plaintiff in that respect was not of the value claimed. There was then a considerable conflict in the evidence as to such value, and we think the question should have been submitted to the jury. Plaintiff says in his argument that after this testimony had been admitted, over his objections, and upon the presentation of the motion to direct a verdict, the trial court was of opinion that he had erred in admitting it. But this does not appear of record, and the evidence must be considered as in the case. Moreover, we are of the opinion that the evidence was competent. It is true that these men were not physicians, nor experts in disinfecting, but their testimony showed what they had done, and the material they had used in the work, and the time taken, and the value of the material. If it was work that could be as well done by a nonprofessional, or nonexpert, as by the plaintiff, the county is not bound to pay more than its reasonable value, no matter by whom it was done. The For the reasons pointed out, the judgment must be reversed. Reversed. PRINDLE v. IOWA SOLDIERS' ORPHANS' Where the granting clause of a deed con- ESTATES his heirs and assigns, thus creating a heritable The granting clause of a deed ran to one, estate. The habendum clause expressly reserved a life estate to the grantors and the survivor of them, providing that in the case of the death of the grantee his wife should have the right to occupy the premises after the grantors' death, and that upon the death of the grantors and the grantees the remainder of the title should mainder over in case of the death of all withvest in the heirs of their body, and with reout heirs. Held that, while the reservation of a life estate to the grantors might be reconciled with the grant of an estate of inheritance, the other provisions in the habendum clause were repugnant to the premises, because attempting to cut down the estate granted; and hence, as the two could not be reconciled, the grantee took an estate in fee. [Ed. Note. For other cases, see Deeds, Cent. Dig. §§ 344-355, 416-435; Dec. Dig. § 124.*] 3. DEEDS (§ 97*) - CONSTRUCTION GENERAL RULES OF CONSTRUCTION CLAUSES. REPUGNANT and the habendum of a deed, the two should be In case of conflict between the premises reconciled, if possible; but if the premises or granting clause does not define the estate con For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes veyed, an habendum clause, restricting the estate, may be effective. [Ed. Note.-For other cases, see Deeds, Cent. Dig. 267-273, 434-447; Dec. Dig. § 97.*] 4. DEEDS (§ 105*)-CONSTRUCTION-CONSTRUCTION AS TO PARTIES-GRANTEES. Where the granting clause of a deed conveyed the property to P. and his heirs, making no mention of an orphans' home, a provision in the habendum clause for remainder over to the home is invalid; the home not being a party to the instrument. plaintiff, subject to her own life use, and declaring therein her intention to pass to the grantee "present interest" in the property. On February 18, 1908, the plaintiff, claiming under the conveyance to which we have referred, instituted this action in equity, asking that the title to said property be quieted in him as the absolute and unqualified owner thereof in fee. Of the defendants named therein, none ap[Ed. Note.-For other cases, see Deeds, Cent. pear to contest the claim thus asserted, except Dig. 278-293; Dec. Dig. § 105.*] the state, which is represented by counsel, who Appeal from District Court, Hardin Coun- contend that the first-named deed creates a ty; R. M. Wright, Judge. Affirmed. Ward & Williams, for appellant intervener. Geo. W. Cosson, Atty. Gen., and C. L. Hays, for other appellants. Lundy & Wood, for appellee. WEAVER, J. On June 15, 1901, Helen Atkins, widow, and Eliza J. Leigh, widow, being the owners of certain lots in the town of Steamboat Rock, Iowa, executed and delivered a conveyance thereof to Theron W. Prindle, plaintiff herein, who is the son of the last-named grantor. The granting clause of this deed runs-"to Theron W. Prindle, his heirs and assigns," and the instrument contains the usual covenants of warranty. Following the description of the property are the words: "For the term of his natural life, subject, however, to a life estate therein expressly reserved to the grantors herein and to the survivors of said grantors, so long as either may live. In case of the death of said T. W. Prindle, his wife, Margaret Prindle, shall have the right to continue to occupy and use said premises, so long as she shall live and remain his widow, after grantors' death. Upon the death of grantors herein and of grantees herein, or of a termination of their interests in said premises, the remainder of the title shall vest in the heirs of their body, the fruit of their marriage, if any shall be living. In case of the termination of the estates above granted by the death of the grantors and of T. W. Prindle and of Margaret Prindle, his wife, or of their dying childless, or its termination otherwise, then the remainder of the title to said premises shall vest in the Orphans' Home and Home for Destitute Children, located at Davenport, Iowa, to be used and appropriated by the trustees in charge thereof for its support. The holders of any intermediate estate shall keep the taxes thereon paid during the time of their tenancy." The grantor, Eliza Jane Leigh, died intestate November 22, 1905, leaving the said Theron W. Prindle, Amanda Wilson, and three other children, her only surviving heirs. On September 17, 1907, Helen Atkins the other grantor in the conveyance above mentioned, quitclaimed the same property to the contingent or executory interest in the state, for the benefit of the orphans' home, which it maintains at the city of Davenport. Amanda Wilson, sister of plaintiff, intervenes, claiming that the said deed made by her mother, Eliza Jane Leigh, was testamentary in character; and therefore did not convey to or create in the plaintiff any present estate or interest, and not being witnessed as a will it is ineffective for any purpose. The trial court found against the claims of the state, and dismissed the intervention of Mrs. Wilson and entered a decree, granting the relief asked by the plaintiff. The state and the intervener appeal. [1] The nature of the estate conveyed by the first-mentioned deed is of course the vital question presented by this appeal. That the grant to the plaintiff is not merely an imperfect or incomplete testamentary instrument we think is very clear. The grantors do not attempt or profess to create an estate or interest which shall vest only upon their death. On the contrary, the deed in apt terms conveys the property itself to the grantee, and the interest so created, whether it be a fee or merely a life estate contingent upon the death of the grantors during his lifetime, begins with and dates from the making and delivery of that instrument, and not from the death of the grantors, though his right to the possession is postponed until that event. It follows that, in our judgment, the petition of intervention was properly dismissed. See 9 Am. & Eng. Ency. (2d Ed.) p. 92, note 5. [2] As between the other parties to the controversy, we have next to inquire whether the deed conveys the fee or a life estate only, with a contingent or executory interest over to the state for the use of the orphans' home. It will be observed from our statement of the case that the portion of the deed which is technically termed the "premises," and includes the granting clause and the description of the property, is in form and substance an ordinary conveyance of the fee, in that it expressly grants the property described to the plaintiff and his heirs and assigns, while the habendum which follows seems to limit the estate so created to a life use contingent upon the death of both grantors during the lifetime of the grantee. That these provisions are essentially repugnant is apparent. If the premises are to be given full effect as a grant to plaintiff, his heirs and assigns, it must be held to convey a fee, and not a mere life estate, dependent upon another intervening life estate. On the other hand, if the habendum be given effect to limit the interest conveyed to an estate for life, after the expiration of a similar estate, reserved in the grantors, then nothing is conveyed to the plaintiff "and his heirs." When premises and habendum are irreconcilably repugnant, it is the universal rule that the former must prevail. The one purports in express words to grant an estate of inheritance, while the other is limited to the life of the grantee. It is true that the tendency of modern decisions is to restrict the application of this rule to cases where the deed is susceptible to no reasonable construction which will give the apparent intended effect to both clauses; but if the repugnancy be so radical that one provision must be ignored the habendum must yield. Beedy v. Finney, 118 Iowa, 276, 91 N. W. 1069. [3] It will be conceded that, if the premises or granting clause does not in any way define or limit the estate conveyed, or if the grant is in general terms only, from which, in the absence of other words, an estate in fee is to be inferred, the habendum may be given effect to qualify, restrict, or enlarge the estate and effectuate the intent of the grantor, as derived from a reading of the entire instrument. Beedy v. Finney, supra; Whetstone v. Hunt, 78 Ark. 230, 93 S. W. 50, 8 Am. & Eng. Ann. Cas. 443. citation of authorities to this effect could be greatly extended, but those we have mentioned sufficiently illustrate the rule. In Smith v. Smith, supra, decided by the Michigan court, the point here discussed was directly involved. The deed there in question contained a grant to Thomas J. Smith "and to his heirs," followed by an habendum clause apparently restricting the interest conveyed to an estate for life. The court says, "The deed is in terms plainly contradictory. It cannot be construed as an harmonious whole," and because of such repugnancy the attempt to cut down the estate conveyed was held inoperative. In his work on real property, above cited, Mr. Washburn says: "If there is a clear repugnance between the nature of the estate granted and that limited in the habendum, the latter yields to the former; but if they can be construed so as to stand together, by limiting the estate without contradicting the grant, the court always gives that construction in order to give effect to both. If, therefore, a grant to be A. and to his heirs, habendum to him for years or for life, the restrictive clause is void." The same rule is approved and applied in Whetstone v. Hunt, 78 Ark. 230, 93 S. W. 979. [4] There is still another reason why neither the state nor the orphans' home, in the interest of which the state appears, is in any position to contest the plaintiff's action. The conveyance under which plaintiff claims is to him alone. There is in the premises of the deed no mention whatever of the home; nor is any trust imposed upon the plaintiff in favor of that charity. The home and the state are strangers to the transaction. The only mention of the home is in an added clause, by which, after having granted the property to plaintiff and his heirs, and after an habendum in which they apparently attempt to restrict the interest conveyed to a life estate, they declare that, in the event of the death of plaintiff and his wife without issue, the title shall vest in the orphans' home. Had this instrument been insufficient to convey the fee to plaintiff, and it had been executed as provided by our statute on wills, this provision could perhaps be given a testamentary effect, in which event the home, or the state, as its trustee, could assert the rights of a contingent remainderman. As it is, the deed confers upon it no right which the courts will recognize or enforce. A case very similar in fact and principle is found in McGarrigle ▾ Orphan Asylum, 145 Cal 694.1 There, as here, the owner of realty conveyed it to a family relative by a deed, the premises of which were sufficient to pass the fee, but in the habendum there was inserted a clause as follows: "It is the purpose of the party of the first part by this deed that after the death of the party of the second part the said described lands shall become and be the property of the Roman Catholic Girls' Or But cases not infrequently arise which are not to be thus easily disposed of. As we have already noted, the deed we have now to construe undertakes in express words to create an estate of inheritance in Theron W. Prindle. It is made to him "and his heirs." The word "heirs," as here used, is a technical term, and denotes the creation of a heritable estate. The reservation of a life estate in the grantors is not repugnant thereto, and may be given effect; but the attempt in the subsequent clause to cut down the estate of the grantee to a contingent right to use and occupy the property for life, after the expiration of the reserved life estate in the grantors, is not open to any construction in harmony with the existence of an estate of inheritance in the plaintiff. Smith v. Smith, 71 Mich. 633, 40 N. W. 21; Ball v. Foreman, 37 Ohio St. 132; Tyler v. Moore, 42 Pa. 374; Breitenbach v. Dungan, 5 Clark (Pa.) 236; Hafner v. Irwin, 20 N. C. 570, 34 Am. Dec. 390; Canal Co. v. Hewitt, 55 Wis. 96, 12 N. W. 382, 42 Am. Rep. 701; Lamb v. Medsker, 35 Ind. App. 662, 74 N. E. 1012; Chamberlain v. Runkle, 28 Ind. App. 599, 63 N. E. 486; Dunbar v. Aldrick, 79 Miss. 698, 31 South. 341; Blackwell v. Blackwell, 124 N. C. 269, 32 S. E. 676; Goodtitle v. Gibbs (Eng.) 5 B. & C. 709; 3 Washb. Real Prop. (6th Ed.) § 2360. The phans Asylum of San Francisco." Of the fendant was about 41 years old, the two were married; plaintiff then having a daughter living by a former marriage. In January, 1904, defendant obtained a divorce from the plaintiff, but in May following they were remarried. On the day preceding this second marriage, in pursuance of a previous arrangement that some contract of the kind should be entered into, plaintiff and defendant met at a lawyer's office where a written contract and duplicate thereof were executed and acknowledged, the defendant signing by her mark, being unable to read or write. In this contract it was stipulated that, in consideration of said marriage, neither of the parties should claim any right, title, or interest in the real estate or personal property effect of this provision, the court says: "The trial court correctly construed this clause as containing no operative words of grant, and as failing to convey any present interest in the property." The rule applied in this precedent is sound in principal, and has the support of the weight of authority. We are content to follow it. The trial court did not err in holding that the grant to the plaintiff was in no manner qualified or lessened by the grantors' attempt to control the disposition of the property after the grantees' death. The conclusions already announced make it unnecessary for us to consider or pass upon other legal propositions argued by counsel. For reasons stated, the decree of the dis- of the other then belonging to either of them trict court is affirmed. FEAR v. FEAR. (Supreme Court of Iowa. Nov. 15, 1911.) 1. SPECIFIC PERFORMANCE (§ 82*)-ANTEN UPTIAL CONTRACT-ENFORCEMENT. Where plaintiff and defendant, after being divorced and prior to remarriage, went to a lawyer's office and there executed a written contract that, in consideration of the marriage, neither of the parties should claim any title or interest in the property of the other, except that, if the husband should purchase a home and he and his wife should occupy it until his death, she, surviving him, should have the use thereof during the remainder of her life, she agreeing also to join in any conveyance of his property for the relinquishment of dower, in the absence of fraud or concealment specific performance of such contract was properly decreed as against her. [Ed. Note. For other cases, see Specific Performance, Cent. Dig. § 190; Dec. Dig. § 82.*] 2. SPECIFIC PERFORMANCE (§ 119*)-FRAUDBURDEN OF PROOF. In an action by the husband to compel specific performance of such antenuptial agreement, the burden of proving that the execution of the agreement was procured by fraud and concealment was on defendant. [Ed. Note. For other cases, see Specific Performance, Cent. Dig. §§ 382, 383; Dec. Dig. 8 119.*] Appeal from District Court, Warren County; Lorin N. Hays, Judge. Action for specific enforcement of an antenuptial contract by which defendant had agreed in writing that she would claim no right or interest in the real estate or personal property of plaintiff by reason of a contemplated marriage between them, and would join with plaintiff in any deed or conveyance of his property which he should make for the purpose of relinquishing her dower right. There was a decree for plaintiff, and defendant appeals. Affirmed. or thereafter to be acquired by either of them, and that, in the event of the death of either, the other should not claim any right of dower or other right in the property of the other, save that, if the husband should purchase a home and he and his wife should occupy it until his death, then the wife, surviving him, should have the use and occupancy thereof during the period of her natural life. It was further stipulated that, after the marriage, each should treat the other as was becoming in the true relation of husband and wife, and, in the event the parties should separate, then neither was to make any claim to any of the real estate or personal property of the other. It was further stipulated that, should either of the parties sell or convey any real estate then owned or thereafter acquired during the period of their married life, the other would, without cost, join in a deed of conveyance for the purpose of relinquishing all dower or other rights in such real estate so sold or conveyed. Soon after this second marriage the defendant abandoned the plaintiff, though, as she alleges in her answer, for good cause, and plaintiff, desiring to convey to his daughter the real estate which he owned at the time of the marriage constituting his homestead, requested defendant to join with him in such conveyance, which request being refused, plaintiff brought this action for specific performance. The defense interposed was that the signature of defendant to the antenuptial contract was obtained by fraud on the part of plaintiff, such fraud being perpetrated by causing to be read to her a draft of a contract, and then inducing her to sign a contract different in terms by the assurance that the one signed was a duplicate of the one read. Counsel for appellant relies upon the gen O. C. Brown, for appellant. A. V. Proud- eral proposition that the granting of specific foot, for appellee. MCCLAIN, J. In January, 1903, when plaintiff was over 70 years of age and de performance is in the sound discretion of a court of equity, and is not a matter of right, and that it should be denied when, under the circumstances, specific perform ance would not be equitable and just. Conceding, however, that a specific performance ought not to be decreed where it would be inequitable, we find here a written instrument purporting to be signed by both parties, resting upon a valid consideration and made in contemplation of a marriage to be entered into between them. [1] There appears to be nothing inherently inequitable in the terms of the agreement, and if, without fraud or concealment, defendant entered into this contract in consideration of the contemplated marriage, then we see no reason in the nature of things why a court of equity should not enforce it. 2. Master AND SERVANT (§ 80*)—EXISTENCE been employed by defendant to work in a store, 3. APPEAL AND ERROR (§ 1117*)-QUESTIONS A plaintiff in a suit for an accounting, who does not appeal from the judgment in his favor, cannot recover a larger judgment in the Supreme Court than he obtained in the trial court, and, where plaintiff is entitled to more than the amount awarded him in the trial court, after allowing to defendant the full amount claimed by him, the judgment will be affirmed. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 4413; Dec. Dig. § 1117.*] Appeal from District Court, Cerro Gordo County; J. F. Clyde, Judge. a general denial and a counterclaim for money loaned. There was a decree for the plaintiff for $1,247. Defendants appeal. Affirmed. Blythe, Markley, Rule & Smith, for appel [2] The burden was upon defendant to show that this written contract apparently signed by her and acknowledged in due form was procured by fraud. In this, as we think, Suit in equity for an accounting of an alshe has entirely failed. While she testified leged partnership and for the recovery of to various promises made to her to induce money had and received, and for the value her again to enter into married relations of alleged services. The answer contained with the plaintiff, it does not appear from her testimony that there was any other arrangement with reference to their respective properties than that which was subsequently embodied in the written contract; and it further appears that the parties agreed to meet in a lawyer's office for the purpose of lants. Cliggit, Rule & Smith, for appellee. having a contract written determining their respective property rights. It further appears that, when the parties came together in the lawyer's office, a written contract which had already been prepared was read over and explained to the defendant, and that she then signed it with her mark and acknowledged it before a justice of the peace, who was called in for the purpose. The claim that after the prepared contract was read over to the defendant another contract was drawn up purporting to be a duplicate, which in fact was different in terms and contained the stipulations now relied upon by plaintiff, which were not in the contract when first read, is without substantial support in defendant's testimony. In the absence, therefore, of any evidence of fraud or concealment by which defendant was induced to execute a different contract than that at the time agreed upon, the plaintiff was entitled to a decree. The judgment of the trial court is there fore affirmed. He also al EVANS, J. The New York Brokerage Company is a mere name under which the defendant, M. L. Urdangen, does business. Urdangen will therefore be referred to herein as the sole defendant. The plaintiff alleged in his petition that on or about January 26, 1909, he delivered to the defendant $1,400, which was to be returned by the defendant upon 30 days' notice. leged that he worked for the defendant for 22 months in his store at Mason City, at an agreed wage of $100 per month. He further alleged that, as a part of the same agreement with defendant, they mutually agreed to engage in partnership in the purchase and sale of stocks of goods, and that shortly thereafter the defendant purchased a stock of goods at Malcolm, Iowa, which he afterwards sold at a profit of $1,200. He prayed an accounting, and that he be awarded $600 as his share of the profits. The defendant answered with a general denial and some admissions. He admitted the receipt of $1,400. He denied all other allegations of the petition. He alleged, also, that he FRYER v. NEW YORK BROKERAGE CO. returned to the plaintiff $100 of the amount et al. (Supreme Court of Iowa. Nov. 15, 1911.) 1. EVIDENCE (§ 215*)-ADMISSIONS. Where the issue was whether plaintiff had been employed by defendant to work in a store, an advertisement prepared by defendant naming plaintiff as the sales manager was in effect an admission by defendant that plaintiff was then in his employ. [Ed. Note. For other cases, see Evidence, Cent. Dig 88 754-759; Dec. Dig. § 215.*] in his hands, and that he returned also certain certificate of deposit of $300. By way of counterclaim he alleged that he had loaned to the plaintiff various sums as follows: June, 1906, $200; September, 1906, $300; June, 1908, $10; February, 1909, $6.50. He also alleged that the plaintiff had received certain goods from his store of the aggregate value of $60.50. By way of reply the plaintiff admitted the loan of $200, but aver |