ing the accident the sectionmen had never been required to handle piles; and it is not shown that the decedent, during his seven years' service for the defendant, was ever required to work about piles before the morning of the accident. The jury would have been authorized to find that the work in which he was engaged at the time of the accident was new to him. It is the well-settled rule that it is the duty of the master to make reasonable efforts to furnish his servant with suitable and safe appliances for the performance of the duties assigned to him. Newbury v. Manufacturing Co., 100 Iowa, 441, 69 N. W. 743; Fink v. Ice Co., 84 Iowa, 321, 51 N. W. 155; Corson v. Coal Co., 101 Iowa, 224, 70 N. W. 185; Cooley, Torts, 663. If, therefore, the cant hook was the proper implement to use in moving the piles in question, the plaintiff should have been permitted to show the fact. It is true that an employer may, within reasonable limits, select implements for the use of his employés which are not of the best which can be obtained; and the employé who accepts employment, or elects to remain in it, with knowledge that the implements furnished him are not the safest and best which can be obtained for the uses for which they are designed, may waive all claim against his employer for damages which result from the character of the implements used. Hayden v. Manufacturing Co., 29 Conn. 548; Moulton v. Gage, 138 Mass. 390; Sweeney v. Envelope Co., 101 N. Y. 520, 5 N. E. 358; Marsh v. Chickering, 101 N. Y. 396, 5 N. E. 56. The bars furnished by the defendant for use in moving the piles in question were, so far as is shown, perfect of their kind, and Anderson knew that they were to be used. But, as we have seen, they were to be used in doing work to which Anderson was not accustomed, and it cannot be said, as a matter of law, that the work did not require more than ordinary knowledge and skill. Anderson must have known that, if his bar slipped while he stood upon a round pile, he would be in danger of losing his footing, and that injury might result; but, in view of his inexperience in handling piles, we cannot say that he should have known that he was required to work with an inferior implement, nor that he knew the work would be dangerous, and therefore waived all right to damage which should result from it. The jury would have been authorized to find that the decedent did not by negligence on his part contribute to the accident; and we are of the opinion that the plaintiff should have been permitted to show, if she could, that the proper implements for handling the piles were cant hooks, and that it was the general custom to use them for that kind of work, to enable the jury to determine whether the defendant used reasonable care in furnishing Anderson and his fellows with the bars they used, rather than with cant hooks. Myers v. Iron Co., 150 Mass. 125, 22 N. E. 631; Wash ington & G. R. Co. v. McDade, 135 U. S. 554, 10 Sup. Ct. 1044; Whitsett v. Railway Co., 67 Iowa, 150, 25 N. W. 104; Jeffrey v. Railroad Co., 56 Iowa, 546, 9 N. W. 884; 27 Am. & Eng. Enc. Law, 902. And the testimony of men who were familiar with the methods of moving timbers similar to the piles in question was competent to show the implements commonly used for such work. Dunham v. Rix, 86 Iowa, 300, 53 N. W. 252; Betts v. Railway Co., 92 Iowa, 343, 60 N. W. 623; McConnell v. City of Osage, 80 Iowa, 293, 45 N. W. 550; Baldwin v. Railroad Co., 50 Iowa, 680. We conclude that the court erred in rejecting testimony. If it can be said that there was sufficient evidence introduced to show the uses of the cant hook, then we are of the opinion that the question of negligence on the part of the decedent and on the part of the defendant should have been submitted to the jury. For the errors pointed out, the judgment of the district court is reversed. COLLINS et al. v. GREGG. MORTGAGES-RECONVEYANCE OF PROPERTY MORTGAGEE'S -CHATTEL MORTGAGES 1. In an action to recover land conveyed to secure a debt, plaintiffs are not entitled to set up in a reply to defendant's answer, alleging facts showing plaintiffs not entitled to reconveyance, the liability of defendant for failure to claim his rights in personal property also transferred to secure such debt, as against attaching creditors. as such liability is in effect a counterclaim, and not available by reply. 2. Since mortgaged personal property is subject both to the mortgage debt and to payment of the mortgagor's other debts, Acts 21st Gen. Assem. c. 117, permitting attachment of such personal property, does not require the mortgagee to take any steps solely for the purpose of shielding the mortgaged property from attaching creditors of the mortgagor. 3. Where a debtor, owing others than defendant, conveys property by a conditional deed containing a clause providing that the property shall be reconveyed on the payment to the grantee of a "sum of money equal to all claims and evidences of indebtedness that the grantee shall have against plaintiff," such clause covers future advances, and defendant is entitled to hold the property as security for claims against plaintiffs which he subsequently purchases. 4. Where plaintiffs sue for a reconveyance of property transferred by an absolute deed to se cure a debt, an order fixing a time within which they may redeem on payment of the amount due, instead of a judgment of foreclosure, is proper. Appeal from district court, Tama county; G. W. Burnham, Judge. The petition is in two counts, the first of which sets forth a cause of action which is substantially as follows: Prior to December 14, 1893, plaintiffs were indebted to defendant in a considerable amount, which was evidenced in part by promissory notes and in part by book account. On that day, for the purpose of securing payment of this indebted ness, plaintiffs executed to defendant a warranty deed to the N. E. 4, Sec. 31, township 85 N., range 14 W., in Tama county, and also a bill of sale of a large amount of personal property. They allege that they have made various payments upon said indebtedness; that they do not know how the account now stands, but they are able and willing to pay the amount due in order to obtain a reconveyance or release of said property; and they ask that an accounting be had, and the balance due be ascertained and fixed. The second count alleges that, by verbal agreement, defendant was to, and did, furnish the money to enable plaintiffs to purchase from one McLain the W. 1⁄2 of S. E. 14, section 30, township 85, range 14 W., in Tama county; that defendant was to, and did, take the title in his own name, the same to be conveyed to plaintiffs upon payment by them of the purchase price. It is averred that the purchase price has been fully paid, and a conveyance to them of this tract is sought. The answer puts in issue these various claims, and to the first count further states that the deed and bill of sale were made to secure future advances, also; that on or about September 1, 1894, plaintiffs and defendant had a full and true accounting together of all moneys advanced and indebtedness incurred since the making of the deed and bill of sale, and it was then and there ascertained that the amount thereof was $1,380.50; that plaintiffs executed their promissory note to defendant for this amount; and that said note is now held by defendant, and is past due and wholly unpaid. The amount of some other indebtedness to defendant is set out, and its nonpayment averred. It is asked that a time be fixed within which plaintiffs shall pay the same; that in default of such payment the right to a reconveyance of the mortgaged property be cut off, and a surrender of possession of the other real estate be decreed. To the second count it is further set up that defendant purchased the 80-acre tract from McLain, and thereafter it was verbally agreed that, if plaintiffs should within a reasonable time make a substantial payment of part of the purchase price to defendant, he would convey the land to plaintiffs, taking a mortgage thereon for the remainder of the sum paid out for the land, but, if plaintiff's failed to make such payment of principal, they were to pay the interest on an $800 mortgage which was then upon the land, the taxes, and interest at the rate of 8 per cent. on the purchase money paid by defendant, and these sums were to be taken and applied as rent for said land; under this agreement plaintiff's took possession of the land, and have ever since held the same, receiving all rents and profits. It is averred that plaintiffs have never paid any part of the purchase money, nor have they paid the interest thereon, or the interest on the incumbrance, or the taxes; and it is prayed that plaintiffs be decreed to have no interest, right, or claim in or to the land. There was a reply filed on plaintiffs' part, and an amendment to the reply; the latter being stricken from the files. Upon a hearing, there was a decree for defendant. Plaintiffs appeal. Affirmed. E. E. Collins, for appellants. Endicott & Pratt and C. B. Bradshaw, for appellee. WATERMAN, J. 1. After the evidence was all in, plaintiffs filed an amendment to their reply, which on motion was stricken from the files. This pleading set up that the chattels transferred to defendant by the bill of sale had been by him negligently permitted to be wasted and lost, by not asserting his rights against certain attaching creditors, and that their value was $3,000; and it was prayed that this amount be made a charge against defendant in plaintiffs' favor. This, it strikes us, is not proper matter for a reply. Marder v. Wright, 70 Iowa, 42, 29 N. W. 799; Jones v. Marshall, 56 Iowa, 739, 10 N. W. 264. It is said that this amendment was made to conform the pleadings to the proof; that it was formal only, and should have been permitted to stand. But to this we cannot assent. It is in legal effect a counterclaim. The evidence upon which it is predicated was all objected to, and was received only because this is an equity action, and all evidence offered must be made of record. It is doubtless true that in an action of this character, in the absence of this reply, defendant should be charged with all items for which he was legally obliged to account, but this fact furnishes no reason for permitting this pleading to stand. As a reply, it had no place in. the record. We do not see, however, why the plaintiffs could not have protected their rights by asserting this mortgage, under chapter 117, Acts 21st Gen. Assem., and thus have prevented the levy of the attachments under which it is claimed the chattels were taken. The law does not give authority to levy in case the mortgagee does not assert his rights. In Gordon v. Hardin, 33 Iowa, 550, the right of the mortgagor to complain of the levy of an attachment on the mortgaged chattels was recognized, although the judgment went in favor of the mortgagee, who intervened. The old rule, that a mortgagor of chattels had no interest that could be levied upon, was not established in order to protect him against other creditors; and the statute to which we have referred, which under certain conditions permits such levy, must not be construed as requiring the mortgagee to take any steps for the purpose solely of shielding the debtor's property. So far as the plaintiffs are concerned, their property was subject alike to both claims. It is only the mortgagee who can complain that it was not applied upon the security which he held. We do not think the averments of this pleading make a legal claim against defendant. 2. The evidence taken in relation to the state of the accounts between the parties is very voluminous and conflicting. The trial court held plaintiffs bound by the voluntary settlement made on September 1, 1894, when they executed the note for $1,380.50 for the then admitted balance due on the account. This finding we believe is correct, and should be sustained. Some claim is made on the part of appellants of fraud in obtaining this note, and of unwarranted charges of interest in computing the amount which was to be included therein, but we do not find that either of these questions is raised by the pleadings. The facts stated in the original reply as constituting the fraud are not sufficient. Neither do we think the testimony justifies or sustains the charge of fraud in inducing the execution of this note. 3. After defendant received the deed and bill of sale mentioned in the first count of the petition, he purchased at a discount other outstanding claims against plaintiffs, and now insists that these instruments stand as security for the claims so procured. At the time this deed and bill of sale were made, plaintiffs owed defendant a sum in excess of $3,000. The instrument of defeasance then executed contains a provision that reconveyance shall be made when the grantor shall pay to the grantee a "sum of money equal to all the claims and evidences of indebtedness that said W. H. Gregg shall have against said B. L. and W. M. Collins." Parol evidence was introduced to throw light on the meaning of the quoted language. This evidence is in conflict sharp and positive, but after giving it due consideration, especially as it relates to the situation and condition of the parties, we feel justified in holding that the conveyances in question were made to secure future advances. It is urged on the part of plaintiffs that the claims set up by defendant as representing money advanced by him were purchased at a discount, and are now put into the account at their face value. This point is disposed of by our finding as to the settlement, which is conclusive on the parties, under the issues as we have them. Frost v. Clark, 82 Iowa, 299, 48 N. W. 82. 4. The finding of the amount due as made by the trial court is correct. We do not feel that we would be justified in setting out here the mass of figures presented in the record, in order to give our reasons for this conclusion. But one other matter remains for mention. Appellants' counsel, in reply to the argument of appellee, suggests, rather than argues, that the trial court erred in fixing a time within which plaintiffs should make redemption; that the decree should have provided for a foreclosure of defendant's securities. We might pass this, perhaps, without further mention, but we prefer to say that the decree in this respect has support in White v. Lucas, 46 Iowa, 319. Affirmed. CHICAGO, R. I. & P. RY. v. CITY OF COUNCIL BLUFFS et al. (Supreme Court of Iowa. Oct. 20, 1899.) RAILROADS-RIGHT OF WAY-PLAT-DEDICA TION CONVEYANCE STREET CROSSINGNONUSER-LIMITATION OF ACTIONS CITY ORDINANCE - SIGNING BY MAYOR - ESTOP PEL. 1. The owner of land agreed to give a pro'jected railroad a right of way across it, and, before the road was laid, platted the land, showing streets and the right of way; the streets being continuous except where crossed by the right of way, and the right of way not being crossed by the streets. Thereafter the owner executed to the company deeds which conveyed lands reserved for depot grounds, and described them by metes and bounds, and then described the right of way as a strip of land running through the platted land and through and across the streets. The railroad company planked the street crossing in controversy, and it was so used for many years; and when other streets were opened they too were planked by the company, and have been used ever since. Held, that the filing of the plat did not amount to a conveyance of a right of way to the company, and that the company's title rested on the deed, and that it reserved the street crossing shown in the plat, which at least constituted a common-law dedication of the streets across the right of way. 2. Where a railroad recognized and adopted a dedication of streets which crossed its right of way as shown by a plat, and planked the crossing and maintained it for years, mere nonuser by the public will not defeat the city's right to open and replank the crossing after the company has wrongfully destroyed it. 3. The statute of limitations will not run to defeat the right of a city, in the exercise of its governmental powers, to open and use a disused crossing over a railroad right of way. 4. The passage by the city council of an ordinance vacating a street crossing over a railroad, which was not signed by the mayor, and was therefore ineffective, and which was thereafter reconsidered and "laid on the table," does not. after the lapse of several years, during which the crossing was not used, estop the city to reopen the crossing. 5. Failure of the mayor of a city to sign an ordinance passed by the council, as required by Acts 20th Gen. Assem. c. 192, renders it of no effect. Appeal from district court, Pottawattamie county; W. R. Green, Judge. Suit in equity to enjoin the opening of what is known as "Seventh Street," in the city of Council Bluffs, over and across plaintiff's right of way. There was a hearing on the merits, resulting in a decree for plaintiff, and defendants appeal. Reversed. S. B. Wadsworth, for appellants. Carroll Wright aud Wright & Baldwin, for appellee. DEEMER, J. In the year 1857 what is known as "Riddle's Subdivision in the City of Council Bluffs" was duly platted by one John T. Baldwin, who was the owner, or trustee for the owners, of the land covered thereby. A copy of this plat is necessary to a full understanding of the questions presented, and it is here reproduced from a photographic copy: What is there designated as Center street is now Sixth. Marcy is now Seventh; Baldwin, Eighth; and Chestnut, Ninth. Thirteenth avenue is the street running east and west just south of the land designated on the plat as Depot Grounds, and Fourteenth avenue is the next east and west street immediately south of Thirteenth avenue. The streets are now numbered numerically from east to west, and the avenues from north to south, commencing with Ninth, which is designated on the plat as Oak street. The railroad using the right of way and depot grounds did not come to Council Bluffs until the year 1868, although it was projected some time before the plat was made, and certain citizens, among whom was Baldwin, had agreed to furnish it depot grounds. Before laying its tracks the railway company obtained deeds to the depot grounds and right of way from Baldwin and others, who were then the owners of the land covered by the plat, which deeds contained the following description of the premises conveyed: "To wit, a parcel of land in Riddle's subdivision in Council Bluffs, Pottawattamie county, Iowa, situated in east half of southeast quarter, section 35, or in southwest quarter of sec tions 36, 75, 44, 1,998 feet long from east to west by 350 wide from north to south, and bounded as follows, to wit: On the north by center of Durant street. on the east by the center of Chestnut street, on the south by the center of Commercial street, on the west by lots E and F, and the west boundary line of said subdivision as platted and now recorded; also, a strip of land through said subdivision known and platted as the right of way of the Miss. & Mo. R. W. Co., and running through the above-described parcel of land, and through blocks 45, 51, 52, 53, 57, 58, 74, and 75, and through and across Chestnut, Baldwin, Marcy, Center, Main, Commercial, Walnut, and Locust streets, in said subdivision, as now platted and of record,-and all in Pottawattamie county, state of Iowa; being (said lastdescribed strip or right of way) 100 feet in width, being 50 feet on either side of the center line of the road of said company as located, or to be located, by the engineer of said R. R. Co. for the construction of said R. R. from Kellogg, in Jasper county, to such point as may be hereafter designated." What are known as Sixth and Eighth streets have been opened and used for travel over and across plaintiff's right of way for many years, but the original crossing was at Seventh street. About the time the tracks were laid the railway company put in a plank crossing at the intersection of this street with its right of way, which was maintained and used until about the year 1885, at which time it moved its freight depot to a point near to and adjoining Seventh street where it crosses the right of way. At or about the time of the location of the depot the planks which made the crossing at Seventh street were torn up, and a ditch was dug along the right of way so as to turn the water from Sixth street in a westerly direction along the track. Whether or not this ditch crossed Seventh street is a matter about which the witnesses do not agree, and we do not find it necessary to determine the dispute. In the year 1891 the defendants were again threatening to open and grade Seventh street where it crosses the right of way, and plaintiffs procured a temporary writ of injunction restraining them from so doing. The action in which the injunction was obtained was thereafter dismissed by plaintiff at its costs. In the year 1894 the city council of Council Bluffs passed an ordinance vacating Seventh street between Thirteenth and Fourteenth avenues, but this ordinance was never signed by the mayor, and was thereafter reconsidered by the council and "laid on the table." At the time this suit was commenced the defendants were again threatening to open up Seventh street over and across plaintiff's right of way. Plaintiff claims that it owns the right of way shown on the plat, in virtue of the deeds from Baldwin and others, and that none of the streets shown on the plat cross the same. It also insists that, if the public ever had any right to a crossing at Seventh street, it has lost it by abandonment and by adverse possession, and it contends that the vacation ordinance to which we have referred operated as an extinguishment of the rights of the public. It will be noticed that the lines of the right of way, as shown by the plat, are continuous; that is, there is no break in them at any place to indicate that any of the streets or alleys cross the right of way. This fact plaintiff regards as conclusive evidence of its title to the right of way unincumbered by any street crossings. If plaintiff obtained its title by dedication, through or in virtue of the plat, much might be said in favor of its contention, and perhaps it would be entitled to the relief demanded. But it did not and could not do so. The filing of the plat did not amount to a conveyance of the right of way to the railroad company. Its title is based on the conveyance from Baldwin and others, the material parts of which we have heretofore set out. In this conveyance the parcel of land known as "Depot Grounds" is described in entirely different language from that made use of in describing the right of way. The right of way is described as running through certain blocks, and through and across certain streets (naming them), among which was the one in dispute, while the depot grounds are described by metes and bounds. It is evident from the description contained in the deed that no street crossings were intended to be reserved over, through, or across the depot grounds, and it is equally plain from this description that all the streets shown on the plat were intended to cross the right of way. That plaintiff so understood is evidenced by the fact that about the time it laid its rails along the right of way it provided a crossing at Seventh street, which it maintained for more than 10 years without interruption. The plat was made long before the railway was located, and plaintiff took its right of way subject to all existing easements reserved in its deed, and to all existing ways in favor of the public. As the street crossings were recognized in the grant, and as plaintiff treated the one in dispute as a public highway for more than 10 years, it is in no position to say that the public has no right thereto, unless it be for some of the other defenses pleaded, to which we will hereafter call attention. As sustaining our conclusions, see Scott v. City of Des Moines, 64 Iowa, 438, 20 N. W. 752; Shea v. City of Ottumwa, 67 Iowa, 39, 24 N. W. 582; Sherman v. Hastings, 81 Iowa, 372, 46 N. W. 1084; Hempsted v. Huffman, 84 Iowa, 398, 51 N. W. 17; 3 Elliott, R. R. § 947. It must be remembered that plaintiff is asking affirmative relief as against the city, and that it must recover on the strength of its own title, and not on the weakness of its adversary's. If it be true that the filing of the plat did not amount to a dedication of the streets across the right of way, plaintiff is in no position to take advantage of the |