was presented in this case, Cooper would surely have been defeated in his action. The judgment of the district court is affirmed.

PEARSON et al. v. CHRISTMAN.
(Supreme Court of Iowa. Feb. 4, 1895.)

CLAIMS AGAINST DECEDENT'S ESTATE.

Under Code, § 2421, providing that all claims of the fourth class against a decedent's estate must be filed within 12 months of the giving of notice of administration, a claim presented two years after such notice should not be allowed, the only excuse being that it had been presented in time, but had been lost by the administrator, where the creditor knew the claim would be disputed.

Appeal from district court, Linn county; J. H. Preston, Judge.

This is a proceeding to establish a claim against the estate of John Christman, deceased. There was a full hearing on the evidence, and the claim was not allowed. Plaintiffs appeal. Affirmed.

Thompson & Stuart, for appellants. Davis & Voris, for appellee.

The

ROTHROCK, J. The plaintiffs are officers of Springville Lodge of the Independent Order of Odd Fellows. John Christman was a resident of Springville, at which place he died, in the year 1889. The defendant was appointed one of the administrators of the estate of deceased, and notice of administration was given in the month of December, 1889. present claim was filed in the court below on the 14th day of August, 1891. The trial by which it was sought to prove the claim was had in the district court in May, 1893. The claim is one which our statute designates as of the fourth class. Section 2421 of the Code is as follows: "All claims of the fourth of the above classes not filed and proved within twelve months of the giving of the notice aforesaid are forever barred unless the claim is pending in the district or supreme court, or unless peculiar circumstances entitle the claimant to equitable relief." The claim was filed more than one year after notice of administration was completed, and the bar of the statute attached, unless it appears from the evidence that there were peculiar circumstances which entitles the claimant to equitable relief. It is urged that the claim was actually filed within one year, but that it was lost from the office of the clerk of the district court. The defendant disputes the fact that any such claim was filed. However that may be, we can discover no reason why the filing of the claim upon which the trial was had was delayed until August, 1891. A number of terms of the district court intervened between the alleged first filing and the filing upon which the trial was had. All of the parties interested resided in or near Springville, in Linn county; and the claimants knew that the claim was disputed, and would not be allow

ed and paid without being established as a valid claim, by an order of court. We do not think that there was any error in disallowing the claim. This disposition of the case renders it unnecessary to dispose of other questions discussed by counsel. The judg ment of the district court is affirmed.

NORDYKE-MARMON CO. v. JONES et al. (Supreme Court of Iowa. Feb. 4, 1895.) FEES OF SHERIFF-EXECUTION SALE.

Where, before property which has been levied on and advertised for sale is sold by the sheriff, the debtor pays into court the amount of the judgment and costs, and the execution is recalled, the sheriff is not entitled to fees for "collecting" the judgment given by Acts 19th Gen Assem. c. 94, § 9.

Appeal from district court, Lyon county; George W. Wakefield, Judge.

This is an appeal from an order of the district court retaxing costs. Affirmed.

E. C. Roach, for appellant. Wagenen, for appellees.

Parsons & Van

ROBINSON, J. In March, 1893, the district court of Lyon county rendered a decree in favor of the Nordyke-Marmon Company against Jones Bros. for $4,116.67, and $26.40 costs, and for the foreclosure of a mechanic's lien therefor on a gristmill and its fixtures and machinery. At the same time a decree was rendered against the same defendants in favor of the Doon Savings Bank for $2,664 and $85 costs, and the foreclosure of a second mechanic's lien on the same property for those sums. An execution was issued on each decree, and the property was duly advertised for sale. Before the day appointed for the sale arrived, the execution debtors sold the mill property at private sale. The purchaser thereupon paid to the clerk of the court the amount he admits to have been due by virtue of each decree, and the executions were recalled by the clerk. The amounts paid did not include any compensation for the sheriff for the collection of the money. The sheriff made returns of the executions, and on each taxed a fee for collecting the money for which it was issued. A motion to retax the costs was filed by the Doon Savings Bank and the purchaser, and was sustained as to the charges for collecting, nothing being allowed for that purpose. The sheriff asks to have the order retaxing the costs reversed. The question we are required to determine is presented by a certificate of the trial judge in words as follows: "Where the sheriff levies upon property under a special execution, and takes possession of the same, and duly advertises the same for sale, and two days before the time of sale the defendant or other person liable to pay such judgment pays the same to the judgment creditor or his agent or attorney, paying costs into court, and the execution is ordered to be returned by the clerk. the property levied upon being of sufficient

value to pay such judgment, is the sheriff entitled to charge, under the statutes of this state, fees or percentage for the collection of this judgment?" The appellant claims a right to the fees in question by virtue of section 9 of chapter 94 of the Acts of the Nineteenth General Assembly, which provides compensation to sheriffs as follows: "For collecting and paying over money-on the first five hundred dollars ($500.00) or fraction thereof, two per cent.; and on excess over five hundred dollars ($500.00) and under $5,000.00, one per cent.; on all over five thousand dollars ($5,000.00) one-half per cent." The appellant contends that the question asked must be answered in the affirmative, under the authority of Litchfield v. Ashford, 70 Iowa, 393, 30 N. W. 649. In that case it appeared that a sale of the property upon which the execution had been levied was actually made, but to the execution creditors. No money was paid, excepting for costs, although the amount of the sale was credited on the execution. This court held that the sheriff was entitled to collection fees the same as though the sale had been made to another, on the ground that it was the legislative intent to allow the percentage fixed by statute in all cases where the act of the sheriff amounted, in effect, to a collection. But in this case there was no sale by the sheriff, and he neither collected nor paid over money. It may be the sale of the property by its owners, and the consequent payment to the clerk of the amounts for which the executions were issued, were hastened by the acts of the sheriff, but whether that be so or not is immaterial. He was entitled to charge, and was in fact paid, for all the services he actually performed, and we think there is no ground for holding that he is entitled to collection fees. The question certified must be answered in the negative. The order of the district court is affirmed.

BAIRD v. LAW.

(Supreme Court of Iowa. Feb. 7, 1895.) TAX TITLE-PROOF OF ADVERSE TITLE-POSSESSION UNDER VOID DEED-LIMITATIONS. 1. In an action to quiet title, defendant's testimony: "I claim to own this land. I got my deed from C.."-is not a showing of title, within Code, § 897, providing that no person shall be permitted to question the title acquired by a treasurer's deed without first showing that he has title.

2. Possession under a void deed is not evidence of title.

3. In an action to quiet title, where plaintiff relies on a tax deed, and defendant fails to show title in himself, he cannot, under Code, § 902, which limits actions for the recovery of land sold for taxes to five years after the execu tion of the treasurer's deed, defeat a recovery by plaintiff.

Appeal from district court, Pottawattamie county; A. B. Thornell, Judge.

Action to quiet title to five acres of land. Decree for plaintiff, and the defendant appealed. Affirmed.

Sims & Bainbridge, for appellant. W. S. Baird and Lee Swearingen, for appellee.

GRANGER, J. The land in controversy is a five-acre tract in the southeast corner of the N. 1⁄2 of the S. E. 4 of S. W. 4 of section 17, township 75 N., range 43. On the 12th of March, 1869, it was deeded to E. M. Officer, by the treasurer of the county, in pursuance of a previous sale for taxes, and the deed was recorded in May, 1869. E. M. Officer and her husband conveyed the land to the plaintiff in September, 1892. This action is brought to quiet the title upon averments of unqualified ownership. Defendant denies plaintiff's ownership, and says that he is the unqualified owner of the land, by virtue of a treasurer's deed thereto to one Perry Reel, made November 16, 1886; the defendant, because of conveyances, being now the owner of the title under such deed. The description of the land in the deed to Reel is as follows: "A part of the S. E. 4 of S. W. 1⁄4 of Sec. 17, township 75, range 43, Pottawattamie county, Iowa, containing five acres, sold November 5, 1883, at regular sale, for taxes of 1882, to P. J. McMahon, certificate assigned to Perry Reel." The record discloses an attempt by each party to show a patent title through other conveyances, which need not be noticed, in view of the manner in which the case is presented in this court. Plaintiff's tax deed is valid upon its face, but defendant claims it to be invalid because the taxes on the land were actually paid at the time of the sale, although, by mistake, the payments were applied on taxes due on other land. It is claimed by plaintiff, and conceded by defendant, that his tax deed is void for insufficient description, under the holding in Smith v. Blackiston, 82 Iowa, 240, 47 N. W. 1075, and a number of other cases. A claim of defendant's is that. notwithstanding the condition of his title, the plaintiff cannot recover, because he has not shown title in himself, under the rule that his recovery must be on the strength of his own title, and not on the weakness of the defendant's. Plaintiff says, in reply, that he does show title on the face of his deed, and that, because of an absence of title in the defendant, he cannot be heard to question his (plaintiff's) title, and cites the following statute, being a part of Code, § 897, which provides for the issue of treasurers' deeds in pursuance of sales for taxes: "But no person shall be permitted to question the title acquired by a treasurer's deed without first showing that he, or the person under whom he claims title, had the title to the property at the time of the sale, or that the title was obtained from the United States or this state after the sale." This statute has repeatedly been applied in accordance with the letter of it. See Lockridge v. Daggett, 54 Iowa, 332, 2 N. W. 1023, and 6 N. W. 543; Varnum v. Shuler, 69 lowa. 92, 28 N. W. 451; Manufacturing Co. v. Beed, 69 Iowa, 546, 29 N. W. 458; Foster v. Ellsworth, 71 Iowa, 262, 32 N. W. 314; Bow

ers v. Hallock, 71 Iowa, 218, 32 N. W. 268; Kreuger v. Walker, 80 Iowa, 733, 45 N. W. $71.

Appellant says, however, that the defendant was allowed, without objection, to state that "he claimed to own this land," and that such evidence was sufficient to make a prima facie case so as to entitle him to question plaintiff's title under his tax deed. In support of the claim, he cites Hintrager v. Kiene, 62 Iowa, 606, 15 N. W. 568, and 17 N. W. 910. In that case the parties were permitted to state orally, without objection, that they were the owners of the land, and it was held that they made a prima facie case of ownership of tile. It cites Brandirff v. Harrison Co., 50 Iowa, 169. In this case the defendant said: "I claim to own this land. I got my deed from Clatterbuck." Clatterbuck took his ti tle from Perry Reel, and both conveyances were by quitclaim deeds. The testimony is not that he owns the land, but that he claims to own it by virtue of his deed from Clatterbuck, which deed (a quitclaim) is based on a deed conceded to be void. This is not a showing of title, but rather a showing, prima facie, that he has no title.

Appellant is in possession of the land, and urges that such possession is prima facie evidence of ownership. But the record shows that his possession is by virtue of his void deed only, and such a possession cannot be evidence of title. The difficulty is that the facts of the case override the presumptions that might arise from possession. It might be said the presumptions are rebutted by the conceded facts. These observations are without conceding, in this class of cases, the rule as to the effect of possession.

Defendant interposed a plea of the statute of limitations because of his five years' possession. But his want of title prohibits him from questioning plaintiff's title even in that way. Varnum v. Shuler, 69 Iowa, 92, 28 N. W. 451, expressly holds that such a, plea is not available to question a treasurer's deed unless the party has title. It cites Lockridge v. Daggett, 54 Iowa, 332, 2 N. W. 1023, and 6 N. W. 543.

These considerations seem entirely conclusive of the case, and the judgment is affirmed.

MILLER v. HAMMERS.

(Supreme Court of Iowa. Feb. 9, 1895.) INTOXICATING LIQUORS CIVIL-DAMAGE ACT-EXEMPLARY DAMAGES.

1. A charge that one who sold or "furnished" to decedent intoxicating liquor, producing intoxication which was the immediate cause of his death, is liable for such death, is not error, where the evidence shows conclusively that the liquor was sold to decedent.

2. Code, § 1557, providing that, in an action for damages for selling intoxicating liquors, plaintiff shall recover exemplary damages, gives plaintiff a right thereto if actual damages are shown.

Appeal from district court, Mills county; A. B. Thornell, Judge.

Action for damages for the alleged unlawful sale of intoxicating liquors. There was a trial by jury, and a verdict and judgment for the plaintiff. Defendant appeals. Affirmed.

L. T. Genung, C. E. Dean. and Smith McPherson, for appellant. Shirley Gillilland and E. B. Woodruff, for appellee.

intoxicated.

ROTHROCK, J. 1. The plaintiff is the widow of Andrew M. Miller, deceased, who came to his death on the 18th day of September, 1892, by falling out of a wagon while The claim is made in the petition that the appellant and other defendants in the action sold plaintiff's husband the intoxicating liquors which produced his drunken condition, and that he was killed by reason thereof. She demanded damages because the death of her husband deprived her of her means of support. There were four defendants in all. The jury returned their verdict against three of them, and for the other. The defendant Hammers is the only one which appeals.

It appears that the plaintiff's husband was a plasterer by occupation, and resided in the city of Glenwood. He owned a team of horses and a wagon. On the morning of the 18th day of September, 1892, he and some two or three others went into the country, in the wagon, to do some work. One of the men who was with him testified as a witness, in part, as follows: "I reside in Glenwood, and have lived there for about seventeen years. I was acquainted with A. M. Miller in his lifetime. He was a plasterer. He earned $4 a day. I have seen him working quite a number of times. He lived across the railroad in Glenwood. Sometimes

he laid brick. I recollect the circumstances of his death. I saw him on the south side of the square in Glenwood the day he was killed. He was going out beyond Mineola to work for a man whose name, I think, was Hansen. Going out to build a flue and do some plastering. I was engaged on the same piece of work with him. I went over to Mineola with him, in the same conveyance. We had no liquor with us that morning before going. We arrived at Mineola about ten o'clock. We there got some crackers and cheese. Went over to dry-goods store and grocery. We took this lunch at the hotel in Mineola. We got our lunch that morning at the hotel. In the hotel there is a bar in one part. I think it is in the north. We took the lunch in the room where the bar was. We had some beer to drink there that morning. We took about three glasses apiece. I didn't get anything else there. At that time there was Miller, Walling, Walling's boy, and myself. The boy's name was Hiram. After we had lunch, a quart of whisky was ordered. Mr. Walling

got that. After that we went out and got into the wagon, and started to go up to this man's, where we were going to work; but in driving out of town there was a plank, as we drove down town, ran across the street there, part way, that the off fore wheel struck, and threw the wheel under the wagon, and stopped the team, and threw Mr. Walling off at the same time. I then got off the wagon. pulled Walling's knee back in, and carried him back to the hotel, into the dining room, at the same hotel where we had been. Mr. Miller and I first got a doctor. Miller and I got into the wagon, and drove out to Hansen's. There was a quart of whisky in there that went out to Hansen's. It was about an hour after we got to the hotel that we started for Hansen's. We did not drink any of the whisky in the hotel. We drank some of the whisky after we got out to Hansen's. We remained at Hansen's a couple of hours. We had a lunch there. With our lunch we had some of the whisky. Then we came back to Mineola. The whisky, or the balance of it, was left at Hansen's. I could not say what portion of it was left in the bottle. Miller drank some at Hansen's. It was about the middle of the afternoon when we got back to Mineola. This was September 19, 1892. We went back to the hotel, where we got some more beer to drink. After that we went upstairs where Walling was. I was with Miller the whole of the afternoon. After that we went across the street to Mr. Hammers'. I recognize Mr. Hammers now in the court room. He was the man I referred to when I say we went over to Hammers' place. We got some beer there. Miller drank some of it. Mr. Hammers sold us a couple of bottles. Guess Hansen was also in there. Miller was then getting pretty drunk. I don't remember of seeing the defendant Breemer there. I don't know whether he was connected with the place of business or not. We then went to another place where liquors were sold. and Miller and I bought a drink. That was a place above the dry-goods store. Do not know whose place it was. Cannot describe the man. That was along in the evening. After we took this beer that was sold by Henry Hammers, we drank a bottle. Miller was then pretty drunk. Miller was staggering around. He could not control his movements. When we started to go home, it was about sundown. Miller tried to get liquor at some of these places afterwards, and it was refused. I could not tell, because I was getting pretty full. I remember the circumstances. This was just before we started for home. Miller was so drunk that it took a second trial to get into the wagon. After we got in, the team ran away with us. It was Miller's team. Miller could not manage the team. My condition was the same as Miller's. The team ran 75 or 100 yards. Miller was thrown out over top of me, and

thrown against the fence post, striking with the top of his head, which caved his skull in. He lived until three o'clock the next morning. He didn't speak after he was thrown out. The doctor took a stitch or two in the top of his head." Shirley Gillilland, another witness for the plaintiff, testified in substance to an admission made by appellant that he had sold a certain drink, called "B. B.," to the deceased, or to the party of men traveling in the wagon. We have set out this testimony of the witnesses for the reason that it is strenuously contended that the verdict against the appellant was not authorized by the evidence. It is true that appellant testified that he did not furnish the party any intoxicating liquor. He denied the conversation testified to by Gilliland, and there was other evidence in corroboration of appellant, in his denial of having made suca sale. There was a fair conflict in the evidence on this vital question in the case, and, under familiar rules, we are not authorized to interfere with the verdict.

2. The court, in the charge to the jury, directed them that the defendants were liable if they "sold or furnished" Miller intoxicating liquors that caused or contributed to his intoxication, and that such intoxication was the immediate cause of the accident resulting in his death. The question is made that the mere furnishing of the intoxicating liquors, without making a sale. was insufficient to authorize a recovery. All of the ev idence in the case shows that whatever liquor was furnished was a sale, and not giv en away as by gift. And the jury were repeatedly told in the instructions that if the defendants sold the liquor they would be liable. There was therefore no prejudice in the use of the word "furnishing," even if the delivering of the drink was without the formality of a sale. All of the evidence shows that deceased was noticeably intoxi.cated at the time that he met the appellant. Under such circumstances, it is questionable, to say the least, whether liability would not be incurred by a gift, the same as by a sale. See Welch v. Jugenheimer, 56 Iowa, 12, 8 N. W. 673.

3. Section 1557 of the Code provides that in cases like this the plaintiff may recover "for all damages actually sustained as well as exemplary damages." The court instructed the jury on the question of exemplary damages as follows: "If you should find that plaintiff is entitled to recover actual damages, she will be entitled to exemplary damages as well. Usually, exemplary damages are discretionary with the jury, that is, the jury may allow them or not, as they think best, but under this statute under which this case is brought, if actual damages are given. exemplary damages must be added. But of the amount to be given you are the sole judges, keeping in view that exemplary damages are given as a punishment for the wrong done to plaintiff, and as an example that will

prevent other persons from doing a like wrong in the future; and, in so doing, award such exemplary damages as, in your sound judgment and discretion, should be awarded. But exemplary damages cannot be awarded unless plaintiff has shown herself entitled to actual damages." The doctrine of this part of the charge is attacked because the question of the willfulness and wanton disregard of the rights of others is not, by the instructions, made necessary elements in the matter of allowing exemplary damages. The rule of the instructions is in exact line with the cases of Fox v. Wunderlich, 64 Iowa, 187, 20 N. W. 7, and Thill v. Pohlman, 76 Iowa, 638, 41 N. W. 385, and we are not disposed to change the rule.

4. It is urged that one of the counsel for the plaintiff was guilty of such misconduct in the closing argument to the jury as to require a reversal of the judgment. Without setting out the language used by counsel in argument, we are content to say that, while it might well have been omitted, we do not think it was such misconduct as to warrant our interference with the verdict and judgment. We discover no ground for reversal, and the judgment is affirmed.

LEDGERWOOD v. CITY OF WEBSTER CITY.

(Supreme Court of Iowa. Feb. 6, 1895.) ACTION AGAINST CITY--DEFECTIVE SIDEWALKEVIDENCE.

1. In an action against a city for injuries caused by a defective sidewalk, it appeared that the sidewalk had been built several years before over a disused cellar stairway; that the stringer adjoining the building was decayed and split off; and that the sidewalk inclined towards the street, which caused planks becoming loose to slide from the building, and leave the upper end without support. Several witnesses testified that the plank on which plaintiff stepped had been loose for from several days to a month before the accident; that the nails in it were rusted off; and that it moved perceptibly when stepped upon. It also appeared that the street commissioner had been repairing the walk just previous to the accident. Held, that a finding that the city was negligent was proper.

2. Where, in an action for injuries caused by a defective sidewalk, the construction of the sidewalk was involved, testimony as to loose boards in the walk other than the one which caused the injury, but which were in the same part of the walk, was properly admitted.

3. In an action to recover for injuries caused by a defective sidewalk, after charging as to the facts essential to a recovery, as to negligence in the construction or maintenance of the walk, and as to notice, both actual and constructive, to render defendant liable, the court directed the jury to first find whether plaintiff was injured by a fall upon the sidewalk, and, if so, whether the fall was caused by a defect in the walk, and that, unless both propositions were established, there could be no recovery. Held, that there was no error in giving both instructions.

Appeal from district court, Hamilton county; D. R. Hindman, Judge.

Action for personal injuries on a sidewalk
V.61N.w.no 10-69

in defendant city. Judgment for the plaintiff, and the defendant appealed. Affirmed.

George Wambach and W. J. Covil, for appellant. Hyatt & Hyatt and Wesley Martin, for appellee.

GRANGER, J. 1. The plaintiff fell through a sidewalk made over a stairway or areaway in the business part of the defendant city, and was injured. The injury was caused by a loose plank in the walk, upon which she stepped, and, being somewhat displaced, it tipped, and she fell into the opening below. About the year 1884 the stairway ceased to be used, and was covered with the walk in question, made of plank nailed to three stringers. The outer edge of the walk was from 3 to 4 inches lower than the inner edge or side next to the building. There is a very earnest contention that the evidence does not sustain the finding of the jury that the city was negligent. This conclusion arises from considering only a part of the evidence. It seems to us that it is a case of such conflict that we should not interfere. There is evidence from which it could be found that the stringer next to the building was not more than an inch from it, and that it was decayed, and had been so "knocked or split off" that it was of little, if any, support to the plank. The incline of the plank, if they became loose, would cause them to slide away from the building, and hence to leave the upper end without support, and a person stepping on that end would be liable to fall into the cellarway below, as did the plaintiff. This danger made additional precaution necessary in keeping this particular part of the walk in repair. The following is some of the evidence relied upon by plaintiff. One witness, a boy, said: "I know the board had been loose several days, for the end next to the building had slipped down. When I came along that day, it was pushed up where it belonged. We were playing 'hide the paddle' there one night, and some one stuck it down next to the building, and it went through, and one of the boys went down through after it. I could not tell how long it was before Mrs. Ledgerwood was hurt. The boys did not appear to use any force to get the board up. They hunted around until they found one that was loose. It was three or four feet from the corner." Another said: "On the Wednesday or Thursday before the accident, I noticed the board loose. In walking along on the walk, I happened to step on the board, and noticed it wiggled. There were several boards loose on the walk, eight or ten feet or more from the place where the accident happened. They were not on their bearings. They were loose and wiggled. The ends were warped up, and, on stepping on either side, it tipped up enough to notice it." Another, as follows: "I noticed them wiggling around as you stepped on them. If you stepped on one end, the other end would