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1074 TAXES AND TAX SALES TELEGRAPH COMPANIES.

Foreclosure of Title under Code of 1851-Printed Restrictions: Statute.

made parties or served with notice who have recorded liens upon the premises. Clark v. Connor, 28 Iowa, 311.

288. The purchaser of lands at a sheriff's sale, under an execution against the owner thereof, acquires such an interest therein that he may be properly made a party to a proceeding to foreclose a tax title to the same; and it makes no difference whether he acquired his title before or after the tax sale. Byington v. Walsh et al., 11 Iowa, 27.

289. In a proceeding to foreclose the equity of redemption to land held by tax title, a party holding the sheriff's certificate of purchase of the same land on execution sale, is sufficiently interested to appear as defendant. Probst v. Thompson, 4 G. Gr. 135.

290. Evidence. In a proceeding to foreclose the equity of redemption under a tax deed, the certificate of redemption of the county treasurer is not conclusive evidence as to the amount to be paid for redemption. Byington v. Bookwalter, 7 Iowa, 512.

291. Where, in a proceeding to foreclose the equity of redemption under a tax deed, after the defendant had offered in evidence a certificate of redemption of the county treasurer, issued after the commencement of the suit, the plaintiff offered to prove the payment of subsequent taxes on the land, and also offered to prove, by the clerk of the district court, that all of the costs in the action had not been paid, which evidence was rejected by the court. Held, that the court erred in rejecting the evidence. 1bid.

292. An assessment book not admissible in evidence, in part proof of a tax title, without first showing the appointment of the equalizing officers. GREENE, J., contra. Scott v. Babcock, 3 G. Gr. 133. Nor is a tax deed for delinquent taxes of 1843, without proof of the assessment, collector's return, etc. Ibid.

293. In a proceeding under section 506 of the Code, to foreclose the right of redeeming land from a sale for taxes, commenced against the land itself, or the unknown owners thereof, an appeal cannot be taken in the name of the land, or of the owner, without naming him. Moss v. Lot No. 7, etc., 9 Iowa, 432; Fuller v. N. W. gr., etc., Ibid. 430.

294. The fact that the treasurer of a county made a mistake, and deceived the agent of the owner, in representing that certain land was not

assessed, and that no taxes were to be paid on it for a given year, cannot avail the owner in a proceeding to set aside a decree of foreclosure against the land, under a tax deed, for the taxes of that year, unless some collusion or fraudulent combination be shown between the treasurer and the purchaser of the land. McGahan v. Carr, 6 Iowa, 331.

295. Nor can the fact that the land was assessed in the name of a wrong person, or that the owner, since the sale of the land for taxes, has paid the subsequent taxes on the same, avail to set aside a decree of foreclosure under a tax deed. Ibid.

296. A tax law provided that after the assessment roll was corrected, it should be laid before the board of county commissioners, and if found to be correct, the board should accept it in writing, on the back thereof, signed and attested by their clerk, and that it should be filed in the clerk's office, to remain an unalterable record. The only evidence of a compliance with this provis ion, was the following entry: "W. E. filed the following assessment roll for 1842, which was examined by the board, and ordered to be filed with the clerk," signed by two of the commissioners. Held, that this was not sufficient evidence of an acceptance of the roll by the board of commissioners, and that the defect could not be supplied by parol evidence. Held, further. that a sale of land for a tax embraced in such assessment roll was void. Rayburn v. Kuhl, 10 Iowa, 92.

TELEGRAPH COMPANIES.

1. Printed restrictions: statute. It seems that it is competent for a telegraph company, not withstanding section 1353 of the Revision, which provides that a telegraph company is liable for all mistakes in transmitting messages made by any person in its employment, as well as for all damages resulting from a failure to perform any other duty required by law, to adopt reasonable rules, conditions and regulations governing the transmission of messages, restricting its liability in cases where the message is not repeated. Sweatland v. Ill. & Miss. Telegraph Co., 27 Iowa, 433.

2. Extent of liability: negligence. While a telegraph company may, in the absence of any statutory regulation to the contrary, restrict, by

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TENANTS IN COMMON AND JOINT OWNERS.

Liability for Rents: Disseizin.

OWNERS.

1075

1. Tenants in common have a right to erect a dam across a stream, but not so high or in a manner which would injure other tenants in common. When so erected, the dam becomes a private, and not a public nuisance, and there

printed stipulations and conditions attached to TENANTS IN COMMON AND JOINT
the message, its liability in cases where the
message is not repeated, it will, notwithstand-
ing such special printed conditions, be liable for
mistakes happening in consequence of its own
fault, such as want of proper skill or ordinary
care on the part of its operators or the use of
defective instruments, but not for mistakes
occasioned by uncontrollable causes, such as
atmospheric electricity, provided these mistakes
could not have been guarded against or pre-
vented by the exercise of ordinary care and
skill on the part of the operating agents of the
company. Ibid.

3. Cannot exonerate from all liability. Telegraph companies, it would seem, by general printed conditions, cannot relieve themselves from liability for the improper or negligent conduct of their servants. Ibid.

4. These companies, like railroad companies, owe important duties to the public. They must act in good faith toward it, and cannot, by general printed conditions, demand unreasonable concessions from those proposing to send messages. Ibid.

fore should be abated within a reasonable time.

Moffatt et al. v. Brewer et al., 1 G. Gr. 348.

2. A tenancy in common can only be destroyed, either by uniting all the titles or inter ests in one tenant, thus bringing all the interests into one severalty, or by partition, giving all respective severalties. Sullivan v. McLenan, 2 Iowa, 442.

3. Where one co-tenant purchases in an incumbrance or adverse title, he is ordinarily held to do so for all the co-tenants; but it is doubted whether this would apply to cooccupants of lands of the United States, one of whom has acquired title from the government, in the absence of fraud or special con

tract. Ibid.

4. Liability for rents: disseizin. The rule that a tenant in common is not liable to his cotenant for rents and profits of the land received

by him, unless he received more than his share, does not apply where he disseizes his co-tenant and ousts him of the possession. Sears v. Sel

5. Ordinary care: gross negligence: onus
probandi. While they are liable for want of
ordinary care and skill, as well as for gross
negligence, notwithstanding the condition re-
stricting their liability in cases where the mes-lew, 28 Iowa, 501.
sage is not repeated, the burden of proof is on
the plaintiff to show this want of ordinary care
or fault on the part of the company; and where
this condition as to repeating messages exists
and is known to the party sending the message,
or where he is bound to take notice of it, and a
mistake occurs in an unrepeated message, the
mere proof of such mistake, without some other
evidence of carelessness or negligence on the
part of the company, would not render it liable.
Ibid.

6. Rule applied. It was held in the present
case, that the plaintiff, in order to recover, must
prove something more than the mistake in the
message, and the damage resulting therefrom.
He must show that this mistake was caused by
the fault of the company, and that it might
have been avoided if the company's instruments
had been good ones, and if its agents had pos-
sessed the requisite skill and exercised proper
care and diligence in respect to the transmission
and receipt of the message in question. Ibid.

5. Rule exemplified. It is accordingly held, that if A disseizes his co-tenant B, it is no defense in an action against him by B, to recover rents and profits, that in fact he has received or realized nothing from the land during the dispossession; and B may recover what the rents and profits were worth, without regard to the inquiry as to whether A in fact collected rents or received profits. Ibid.

6. Discharge of incumbrances. One tenant in common who pays taxes or discharges other incumbrances against the joint property, may compel his co-tenant to contribute. Ibid.

7. Adjacent proprietors: in different stories of buildings. Where one person owns the lower story of a building, and another the upper story, with right of way thereto, the latter cannot recover of the former for necessary repairs of the roof made by him. It would seem that the person owning the apper story would be under obligation to keep the roof in repair, and that a like rule would apply to the owner of the

Requisites of.

lower stories, as to the foundation. Ottumwica must not only aver the offer to pay but show Lodge, etc., v. Lewis, 34 Iowa, 67.

8. Interest on advances. Where one of joint owners of real estate makes improvements thereon, on an agreement with the others that they will furnish their share of the cost thereof, the former is entitled to interest on money thus advanced by him beyond his proportion. Sears v. Munson, 23 Iowa, 381.

9 Right of compensation by co-owners. Where there is a definite understanding or agreement, one joint owner is entitled to compensation for his services from the others, although such services were rendered after the death of one of them. Ibid.

10. Joint tenants and in entirety are not favored. A conveyance to two or more creates merely a tenancy in common. Hoffman v. Stigers, 28 Iowa, 302.

See CONVEYANCE; PERSONAL PROPERTY; PLEDGE.

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2. Deficient amount. If a party tender less than is due he does so at his peril, though he may honestly believe that the amount tendered is all that is due the plaintiff. Helphrey v. Chicago and Rock Island Railroad Company, 29 Iowa, 480.

3. When a creditor at the time a tender is made makes no objections to the amount tendered, it will be held sufficient, if upon the trial it is found that it was not so large as the amount actually due. Whether he is precluded from recovering more when he does not object to the amount tendered, quere. Hayward v. Munger et al., 14 Iowa, 517.

4. Must be specially pleaded and kept good. Tender must be pleaded specially, and such plea

a continued readiness to pay and keep good the tender made. Barker v. Brink, 5 Iowa, 481; Jones v. Mullnix, 25 Ibid. 198; Hambel v. Tower, 14 Ibid. 530.

5. To whom made. A tender to a trustee who holds the notes of the debtor for collection, and is proceeding to sell the property of the debtor conveyed to him in trust to secure the payment of the debt, is a tender to the agent of the beneficiary and binds him. Hayward v. Munger et al., 14 Iowa, 517.

6. Must be brought into and remain in court. It is essential to the validity of a tender that the money tendered should be brought into and remain in court. Mohn v. Stoner, 14 Iowa, 115; Johnson v. Triggs, 4 G. Gr. 97; Freeman v. Flemming, 5 Iowa, 460; Mohn v. Stoner, 11 Ibid. 30.

7. To keep a tender good and thus save the party tendering from paying costs, the amount must be deposited in court concurrently with the answer. Warrington v. Pollard, 24 Iowa, 281; Mohn v. Case, 14 Ibid. 115; Eastman v. The District Township, 21 Ibid. 590.

8. At law a tender is not sufficient if the money is not brought into court; but the same rule will not be enforced in equitable actions. The party making it may, if he sees fit, retain it, but must produce it upon reasonable notice of its acceptance. Hayward v. Munger et al., 14

Iowa, 517.

9. Allegation. A plea of tender should show that the property or money tendered was placed under the control of the court. Hayden, for the use of Adams, v. Anderson et al., 17 Iowa, 158.

10. Promissory note. That the maker of a promissory note had money in bank where the note was payable, but which was not set apart by him for that purpose, will not support a plea of tender. Myers v. Byington, 34 Iowa, 205.

11. Written tender. An offer to pay a particular sum of money, without producing the same as provided for in Revision, section 1816, must be in writing. If not in writing, the necessity as a general rule for such production is not dispensed with. Casady et ux. v. Boster et al., 11 Iowa, 242.

12. Such a tender may be made in writing by one party to a contract who is within the State, to the other party who is in another State Crawford v. Paine, 19 Iowa, 172.

Requisites of- Effect of -Some General Matters.

13. Offer to suffer judgment. An offer in writing, by a defendant, to pay a certain sum of of money and costs of suit, if the plaintiff will dismiss his action, will not entitle the defendant to the benefit of section 3405 of the Revision. The offer must be to allow judgment against him. Quinton v. Van Tuyl, 30 Iowa, 554.

14. In United States treasury notes. United States treasury notes constitute a legal tender though the contract is payable in gold. Warnibold v. Schlitting, 16 Iowa, 243; Troutman v. Gowing, Ibid. 415; Hintrager v. Bates, 18 Ibid. 174; Mulligan v. Hintrager, Ibid. 171.

15. The act of congress making treasury notes or greenbacks a legal tender is constitutional and valid. Hence, a note payable in specie may be discharged in legal tender notes, and even though the note was given anterior to the passage of the legal tender act. Wilson v. Triblecock, 23 Iowa, 331.

16. The act of congress of July 16, 1862, making United States treasury notes legal tender, in payment of debts contracted both before and subsequent to the passage of the act, is constitutional. Richmond v. The Dubuque & Sioux City R. R. Co., 33 Iowa, 423.

17. In bank notes and certificates. An offer to pay a note in bank notes is not a legal tender. Jones v. Mullinix, 25 Iowa, 198; nor in a bank certificate of deposit. Dougherty v. Hughes, 3 G. Gr. 92.

II. EFFECT OF.

18. A tender admits the plaintiff's cause of action to the amount of the sum tendered and he

should have judgment therefor. Johnson v. Triggs, 4 G. Gr., 97; Frink & Co. v. Coe, 4. G. Gr., 555; Brayton v. The County of Delaware, 16 Iowa, 44; Fisher v. Moore, 19 Ibid. 84; Phelps v. Kathron, 30 Ibid. 231; Gray v. Graham, 34 Ibid. 425.

19. Stops interest and saves cost. A tender of the amount due does not satisfy the demand, but if kept good, it stops interest and saves cost. Johnson v. Triggs, 4 G. Gr. 97; Freeman v. Flemming, 5 Ibid. 460; Shant v. Southern, 10 Ibid. 415; Mohn v. Stoner, 11 Ibid. 30; Hayward v. Munger, 14 Ibid. 576.

20. Waiver of. If a tender was not claimed on a trial before a justice, it should not be entertained on appeal in the district court. Johnson v. Triggs, 4 G. Gr. 97.

21. Cost of appeals. Where judgment was rendered against a defendant by a justice of the peace from which he appealed, and in the district court at the time the jury was being called, the defendant offered to pay the plaintiff ten dollars, which was refused, and where the plaintiff obtained a judgment for ten dollars, the amount

proffered by the defendant which was a less sum than that recovered before the justice, and the court thereupon ordered the plaintiff to pay the costs of the defendant, it was held, that, by section 2346 of the Code of 1851, the defendant was required to proffer to pay a certain amount with costs, and that not having done so, and the sum proffered being the tiff was entitled to a judgment for the verdict, amount the plaintiff finally recovered, the plainwith the costs. Powell v. The Western Stage Co., 2 Iowa, 50.

III. SOME GENERAL MATTERS.

22. Tender of deeds and purchase-money. When a conveyance of real estate is to be executed upon the payment of the purchase-money, the acts are so far dependent that the vendor can not recover in an action for the purchasemoney without showing a performance on his part, by a tender of a deed of conveyance, or an offer to convey upon the payment. Berryhill v. Byington, 10 Iowa, 223; School District, etc., v. Rogers, 8 Ibid. 316; Winton v. Sherman, 20 Ibid. 295. Nor, on the other hand, can the vendee enforce a specific performance without a demand of the deed and tender of the purchasemoney to the vendor. Collins v. Vandever, 1 Iowa, 573; Venum v.Babcock, 13 Ibid. 195; Lav

erty v. Hall, 18 Ibid. 526; Young v. Daniels, 2 Ibid. 126; See McDaniels v. Kimbell, 3 G. Gr. 335.

23. A vendee of a real estate may rescind the contract and recover the purchase-money paid, without first tendering to the vendor the purchase-money due and demanding a deed, where the vendor, by his own act, or by operation of law, has been rendered unable to perform the contract on his part. Wilhelm v. Fimple, 31 Iowa, 131.

24. Foreclosure of bonds. In an equitable proceeding to foreclose a bond as a mortgage, it is not necessary to allege or prove a tender of a deed before the commencement of the action. Grimmell, executrix, v. Warner, 21 Iowa, 12; Barrett v. Dean, Ibid. 423; Winton v. Sherman, 20 Ibid. 295.

Some General Matters - Statutory Prohibition

25. See further as to tender of deeds and purchase money; See EQUITY, sub-title SPECIFIC PERFORMANCE, § 60, et seq., vol. I 422; also CONTRACTS, § 178 et seq., vol. 1, 227.

26. When the time and place of performance is fixed in the contract. A tender by the debtor by setting apart, at the time and place, the property specified, passes the title to the property to the creditor, and the debt is discharged, though he is not present to receive it, or, if he is present, refuses to receive it. bel v. Tower, 14 Iowa, 530. 27. Application of tender. When the plaintiff recovered judgment for a sum which, with costs, was less than the amount tendered, held, that it was the duty of the clerk, when requested by the defendant, to apply the surplus, after satisfying the judgment, to the payment of the costs; and an execution issued under such circumstances should be enjoined. Fisher v. Moore, 19 Iowa, 85.

TOWN PLATS.

The Rights of Vendee.

ment, privilege and advantage represented by such plat as belonging to the lot sold. The City of Dubuque v. Malony, 9 Iowa, 450.

4. When the plat of a town, situate on the Mississippi river, duly acknowledged and recorded, declared "all the streets and alleys shall be and remain public highways forever, except Water street," and certain alleys named, which plat was signed G., " for himself and others," and when, in a subsequent suit by partition beHam-tween the owners of the town, the commissioners in their report adopted, in the main, the plan of the town as laid out by said plat, in respect to the blocks, lots and streets, and did not except any of the streets from the effect of the dedication as public highways; and in speaking of one share of the town in which is the lot of the complainant, the report declares, "all the town lots included in the above share are bound. ed by the middle of the streets and alleys on which they are situate," and of those next the river delares, "and those on Water street include also the land in front of them to the Mississippi river;" which report was adopted by the court, and a decree rendered in accordance therewith; held, 1. That the original plat, so far as it was adopted by the report of the commissioners and the decree of the court, became operative and effectual; 2. That the report and decree placed Water street upon the same ground, as to publicity, with the other streets; 3. That all the streets are dedicated as highWater street on the plat, from the dedication, ways, and are public; 4. That the exception of was void for repugnancy; 5. That the lot owners owned the soil to the middle of the streets and alleys, subject to the public right to the use, control and management of the highway; 6. That the owners of lots fronting on the Mississippi river own the fee of the land to the river, subject to the public easement; 7. That Water street extended to the river bank, and was not

1. Statutory prohibition. Section 1027 of the Revision, imposing a penalty upon any per son who shall sell or lease any lot in any town, city or addition thereto, until the plat thereof has been duly acknowledged and recorded, does not operate as a prohibition upon the sale itself, but only imposes a penalty upon the seller; and hence the purchase of such lot, the plat of which is not recorded, is not rendered invalid by said section. Watrous & Snouffer v. Blair et al., 32 Iowa, 58.

2. The rights of vendee. Where parties purchase lots under and as designated in such plat, their rights will not be affected by the failure of the proprietors to have the plat recorded, nor by the fact that he supersedes it by another plat, which is recorded, embracing more territory and changing the lots as origi-limited in width to a dotted line which appears nally platted. The rights of the purchaser in such cases are vested under the original plat, and they will not be estopped from asserting them by the fact that they interposed no objections to the changes made by the new plat. 1bid.

3. When the owner of land lays out a town thereon, and sells lots to purchasers with reference to the plat thereof, the purchasers of such lots acquire, as appurtenant thereto, every ease

on the original plat. Haight v. The City of Keokuk, 4 Iowa, 199; see, further, DEDICATION; MUNICIPAL CORPORATIONS.

TRESPASS.

1. Quare clausum fregit. A party in constructive possession of real estate, may maintain an action of trespass quare clausum fregit. In

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