their heirs and assigns, by these presents, to make a good and sufficient warranty deed to the Catholic congregation of Churchville, of two and one-half acres of land around the parish house, and, if a priest be located at Churchville who can speak German and English, then the whole forty acres goes to the congregation to have and to hold the premises above described, with all the appurtenances thereunto belonging, unto the said second part, and to his heirs and assigns forever, the said party of the first part hereby covenanting that the above described premises are free from any encumbrance, and they will warrant and defend the title unto the said party of the second part, his heirs and assigns, against all persons whomsoever lawfully claiming the same: provided, always, and these presents are upon this express condition, that if the said Michael Churchman, his heirs, executors or administrators, shall pay, or cause to be paid, to the said Casper Weil, his executors, administrators or assigns, the sum of $135 36-100, on the first day of January, 1875; $135 36-100 on the first day of January, 1876; $135 36-100 on the first day of January, 1877; $135 36-100 on the first day of January, 1878; $135 36100 on the first day of January, 1879; $135 36-100 on the first day of January, 1880; $135 36-100 on the first day of January, 1881; $1,489 on the first day of January, 1882-then these presents to be void, otherwise to remain in full force. Helena Churchman, wife of the said Michael Churchman, hereby relinquishes her right of dower in the real estate herein mentioned, subject to the above reservation and conditions. In testimony whereof, the said party of the first part have hereunto set their hands and seal the day and year first above written."

And

The relief asked was that the plaintiff recover of the estate of Michael Churchman a specified amount, and that there be decreed a foreclosure of the instrument sued on. The only contested matter was the right to a judgment against the estate. The relief asked was granted, and the defendants appeal.

Henderson & Berry, for appellants.

J. S. McKinney and Williamson & Parrott, for appellee. SEEVERS, J. It is claimed, and, as we understand, conceded, that in legal effect the instrument sued on is a mortgage. It will be so regarded. Counsel for the appellee practically concede that the relation of debtor and creditor must exist between the mortgagor and mortgagee before there can be rendered a personal judgment against the mortgagor. It is

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further conceded that there must exist an obligation to pay independent of or in addition to the pledge of the property before the mortgagee can obtain such personal judgment. Both these propositions are undoubtedly correct. Chittenden & Co. v. Gossage, 18 Iowa, 158. The only question, then, is, what is the proper construction of this mortgage? The maker admits the receipt of a certain sum of money, to repay which he pledges the property. This creates, in a qualified sense, the relation of debtor and creditór. That is, such relation exists to the extent of the property, but not necessarily any further. The mortgage, however, provides that "if the said Michael Churchman, his heirs, executors, or administrators, shall pay or cause to be paid to the said Casper Weil" certain named sums of money, then the mortgage shall be void. This is not a promise to pay, but the reservation of the right to do so. The conveyance is not absolute, but conditional. At common law it would become absolute when the condition was broken. The statute extends the right of the mortgagor to pay, notwithstanding the failure to do so at the stipulated time, until the expiration of the period of redemption after a foreclosure and sale. The reservation of a right or privilege of paying a debt is materially different from an obligation to pay absolutely.

Looking at the instrument as a whole, we are clearly of the opinion the plaintiff is not entitled to a judgment against the estate. Elmore v. Higgins, 20 Iowa, 250. In this respect it is erroneous and must be reversed. In all other respects it is affirmed.

Modified and affirmed.

IOWA R. R. LAND Co., Appellant, vs. J. A. FITZPATRICK,

Appellee.

Filed October 27, 1879.

Where a corporation was entitled under a land grant to have certain lands certified to, and the title thereby vested in it, held, that it could not escape taxation upon such lands by negligently failing to have such certification made.-[ED.

I. N. Kidder and J. S. Frazier, for appellant.

F. D. Thompson, John A. McCall and J. A. Fitzpatrick, for appellee.

SEEVERS, J. A rehearing is asked because of an alleged mistake in the foregoing opinion as to the character of the

list prepared in 1857 by Mr. Stuger and the clerk, as above stated. It is further insisted that if the title was withheld for the purpose of adjusting conflicting rights that the lands were not taxable, and that it makes no difference on what ground the title was withheld. Mr. Stuger, as has been said,. was an employe of parties claiming adversely to the swampland grant. It is evident the list referred to was prepared at his instance. There is no evidence tending to show it was filed in any office of the government. It is not certified by any officer thereof. It is identified only by Mr. Stuger in his deposition, and where he obtained it is not stated. For aught that appears it may be the private paper of Stuger or the plaintiff. If this is not so, why was it not properly certified by the proper officer? We think, under such circumstances, we were justified in designating said list as unofficial and the work of an intermeddler, for the purposes of this case. We have not been able to discover any evidence, emanating from the government or any officer thereof, that the proper certificate as to the lands in question was withheld because of the existence of this list, or that the government or any of its officers recognized there was a conflict as to the lands in controversy. As a matter of fact there was no adverse claim made thereto, and it was only in cases where there were conflicting claims that the certificate was withheld for the purpose of adjustment. It is true, Mr. Stuger testifies that the understanding in the land office was that because of the existence of said list the title was withheld. But clearly this is not sufficient or competent evidence of such fact. It does not appear that any application was made for a certificate, and consequently it was never refused. No bad faith is imputed in making the list. The designation, then, that the lands were reported as "swamp," was a mistake made by Stuger, the agent of the defendant, or of the party then claiming under the railroad grant, and because of this mistake no application for a certificate, it is presumed, was made. The whole difficulty was caused by the negligence of parties claiming under the railroad grant, and on this ground it is insisted these lands were not taxable, and but for such negligence, the lands in question, without doubt, would have been certified, and, as has been before said, would have been taxable. We are unwilling to hold that because of his own negligence a party can escape taxation.

The petition for a rehearing is overruled.

TOWN OF CHEROKEE VS. SIOUX CITY & I. F. Town Lor & LAND CO.

Filed October 27, 1879.

Original opinion in this case reaffirmed. Where the value of land is in controversy it is competent to show the sale of land similarly situated, and the price at which it was sold, the differences between the two pieces being pointed out.-[ED.

Supplemental opinion.

BECK, C. J. 1. Upon filing the original opinion in this cause our attention was called to a supposed conflict between the fourth point thereof and the fourth point of the opinion in King v. The Iowa & Midland R. Co. 34 Iowa 458. (461.) While we were satisfied that the doctrines announced in the two cases did not conflict, it appeared that. on account of the brevity with which we had disposed of one of the points in the case the fourth-our ruling thereon might be misunderstood; we therefore ordered on our own motion a rehearing of the case upon the question decided in the fourth point of our original opinion. Counsel for defendant thereupon filed a petition for rehearing upon all the questions raised in this

case.

2. We will first remark that upon a careful re-examination of the case we remain satisfied with the conclusions announced in our original opinion, and with the manner in which we have presented them, except in the fourth point. We think the other points demand no further consideration. The petition asking for a rehearing upon those points is overruled.

3. The fourth point of our original opinion demands brief discussion in order to present the facts as disclosed by the record, and show its agreement with the prior decision above mentioned.

The testimony showed that the land which had been sold, and the piece testified to by the witness, were on the same "bottom," and its character and value were compared to the land involved in this suit by the witnesses. The evidence showed that the lands were not similar in character and location, but the difference was pointed out. This testimony is briefly referred to in our original opinion. The value of the tract with which the land in question was compared being determined by its sale, and the difference in location and quality of the two tracts being shown, the jury would be aided thereby in reaching a conclusion as to the value of the land

involved in this suit. In King v. The Iowa & Midland R. Co., supra, the tracts of land were not shown to be of like character, nor were the differences between them pointed out. In that case it was proposed to show the price at which a neighboring tract of land had been sold, without any evidence comparing its quality to the land in suit.

It is very plain that upon such testimony no opinion could have been formed as to the real value of the land in question. In this case the quality, etc., of the tracts of land are compared, and the difference pointed out. The value of one being determined a conclusion may be drawn as to the value of the other. We adhere to the conclusions announced in our original opinion.

EVA L. PERIGO, Administratrix, Appellee, vs. THE CHICAGO, ROCK ISLAND & PACIFIC RAILROAD COMPANY, Appellant.

Filed October 27, 1879.

Rule that an employe, by continuing work with dangerous and defective machinery, with a knowledge, or means of knowledge, of its condition, and the dangers incident thereto, without objection or protest, will be deemed to have assumed the consequences resulting from such defects, affirmed and applied. Greenleaf v. Dubuque & S. C. R. Co. 33 Iowa, 52, distinguished.—[ED.

Appeal from Polk circuit court court.

The plaintiff, administratrix of the estate of V. R. Perigo, deceased, alleges that through the negligence of the defendant an injury was inflicted upon the said V. R. Perigo, causing his death, and claims on account thereof the sum of $20,000. There was a jury trial, and a verdict and judgment for plaintiff for $5,000. The defendant appeals.

Wright, Gatch & Wright, for appellant.

Bryan & Bryan, for appellee.

DAY, J. The evidence shows that the defendant erected a coal platform between two of its tracks at Winterset. and for convenience in unloading and taking on coal placed it so near one of the tracks that a passenger car moving along the track passed within seven inches of the platform at one end, and within four and one-half inches of it at the other end. At the time of the accident the platform had been erected and in the same position for two or three years. The deceased was a baggage man on the defendant's passenger train, and it was his duty to assist in making up the trains. He had been in this employment more than two years, and had assisted in