an assessment against the abutting prop- In the summer of 1899, the defendant, erty, but, for the purpose of reimbursing who owns premises fronting on Lakeside itself, the city council duly passed a resolu- drive, about a block distant from Union tion reciting the construction of the sewer, avenue, connected his residence with said its location, and other details, and "that any sewer so constructed on Hazel street; thus person or persons may connect their prem- making complete connection between his ises adjoining said sewer, or on a line residence and the city sewer on Union with said sewer, by paying into the city avenue. The city demanded of him paytreasury of said city the sum of $33 for ment of the amount fixed by the resolution each house service, said connection or conabove quoted. He declined to pay, and this nections to be made under the direction and action followed. which were agreed to, the trial court or Upon the facts stated, dered judgment for defendant, and plaintiff appealed from an order denying its motion for a new trial. supervision of the city engineer, and in accordance with the ordinances of said city." Defendant and one Frey, at their own cost and expense, with the consent of the city, constructed a sewer for a short distance along Hazel street,-a street intersecting with Union avenue, on which the city sewer was laid,-connecting the same with the city sewer on the latter avenue. does not run with the land, unless the statutory requirement that it be in writing has been complied with. Estes v. China, 56 Me. 407. A municipal corporation may require the payment of all fees chargeable for the connection with a sewer of a private drain which drains several pieces of property, although the owner of one has paid his fees; and it may disconnect the drain which was allowed to be connected upon payment of the one fee, where the right to disconnect upon failure in payment of the other was expressly reserved. Belding Bros. v. Northampton Sewer Comrs. 177 Mass. 39, 58 N. E. 156. A municipality cannot impose upon a landowner, as a condition of tapping and making connection with a public sewer, the payment of a certain amount per foot front, on the ground that an assessment of that amount upon his property for the construction of the sewer has been declared invalid, and that thereby a larger proportion of the cost than intended had been cast upon the city; but he is entitled to make such connection on payment of the license fee and performance of the other requirements fixed by statute and ordinance. State ex rel. Durner v. Graydon, 6 Ohio C. C. 634. A municipal corporation cannot condition a connection with a public sewer upon the payment of a void assessment for the construction of the sewer, as the city cannot do indirectly what it cannot do directly. The demand in this case was not made on the ground of reimbursement for the amount expended in the construction of the sewer along the property. Mey ler v. Meadville, 23 Pa. Co. Ct. 119. In State ex rel. Peck v. Hermann, 84 Mo. App. 1, it was held that a municipal ordinance requiring property owners to pay their special tax bills for the construction of a sewer before they shall be permitted to connect their private drains with it is void, as an exclusive remedy is given to the contractors by the provisions of the charter, which makes the special tax bills a lien upon the property affected, and authorizes the contractor to enforce it; and the ordinance cannot be upheld under the general power given the city to regulate the use of its sewer system. But this case was overruled in Hill v. St. Louis, 159 Mo. 159, 60 S. W. 116. which held that a municipality has power, under its charter authorizing it to construct and regulate The only question presented for consideration is the construction of the resolution, and whether defendant comes within its scope. The validity of the action of the sewers, to adopt an ordinance declaring that permits to connect with a district sewer shall be withheld until the applicant had paid his special tax. And that the remedy provided by a charter to the contractor building a sewer, that he shall be paid by special tax bills on the property benefited, to be enforced by suit, is not exclusive, and he may restrain the municipality from issuing to the delinquent property owners permits to connect with the sewer, under a municipal ordinance providing that such permits shall not be issued until the tax is paid. Ibid. Under an ordinance requiring the owner of property abutting on a sewer to pay for a permit to connect therewith according to feet frontage, it is immaterial how deep the lot may be, although abutting also on a cross street, nor how many houses on his property may be served thereby. Lancaster v. Myers, 9 Lanc. L. Rev. 257. A municipality has no power to turn the construction, maintenance, and control of its sewers over to private parties, and authorize them to compel payment by citizens of compensation for the privilege of using the sewers, in the absence of express statutory authority so to do and granting it the power to compel such payments. Weaver v. Canon Sewer Co. (Colo. App.) 70 Pac. 953. A statute giving power to cities to pass bylaws charging all persons who own or occupy property which is drained or required to be drained into a common sewer with a reasonable rent for the use of the same applies to sewers already constructed by general taxation, as well as to those which might afterwards be built. Re McCutchon, 22 U. C. Q. B. 613. A sewerage rate imposed by law is not a 'tax upon the land, but a personal charge upon the owner; so, where the grantee of land paid overdue sewerage rates, he had no right of action therefor under the covenant in his deed for seisin and quiet enjoyment free "from all arrears of taxes and assessments whatsoever due or pay. able upon or in respect of the said lands." Moore v. Hynes, 22 U. C. Q. B. 107. A by-law imposing a uniform rate for draining into the common sewers of a city of a certain amount per foot frontage, to be charged upon the proprietors of real property for each and every foot frontage of property draining city in adopting this method of reimburs- | with and make use of the same, payment ing itself for the expense of the sewer was sustained in the case of Fergus Falls v. Boen, 78 Minn. 186, 80 N. W. 961,- a case involving the action of the city in this particular matter. The resolution provides that any person may connect his premises adjoining said sewer, or on a line with it, by paying the amount specified therein. Defendant's premises did not abut upon Union avenue, nor adjoin that avenue, and for this reason he insists that he does not come within the scope of the resolution. The resolution is entitled to a reasonable construction. The purpose of it was to provide means to reimburse the city for the expense incurred in laying the sewer, and it should be so construed as to authorize the city to demand of all persons in the vicinity of the sewer, who connect into such sewers, is invalid, as being an arbitrary rate not taxed in proportion to the assessed value of property, as required by statute. Aldwell v. Toronto, 7 U. C. C. P. 104. A sewer rent not being a charge upon land, but upon the owner or occupier, summary remedies given by statute for the collection of ordinary rates and assessments cannot be extended to sewerage rates. Re McCutchon, 22 U. C. Q. B. 613. A by-law permitting the owner or occupier of property required to be drained into a common sewer to commute within one year for the payment of the sewerage rate is unobjectionable. Ibid. A municipal corporation, after receiving the price for a sewer connection, cannot take advan tage of the fact that the permit was not signed by the proper officer, where the book of blanks was, with the approval of the proper committee, placed in the hands of the inspector, who for several years was permitted to have sole control of the matter. Allen v. Swarthmore, 25 Pa. Super. Ct. 410. Duty to make connection. In Ginter v. St. Mark's Church (Minn.) 69 L. R. A. 621, 103 N. W. 738, it was held that owners of improved property located adjacent to an adequate sewer or drainage system in a city are required to connect therewith the water gutters and spouts upon their buildings, and not to permit the rain water to collect and discharge upon the surface in such a way that it will enter adjoining premises, provided such connection with the drainage system can reasonably be made. Drainage ditches. The necessity for public supervision is even greater in the case of drainage ditches than in the case of municipal sewers, because they are of a less substantial nature, and the possibility of exceeding their capacity is greater. A drainage canal constructed in the exercise of powers of eminent domain does not thereby become a watercourse to which one can drain without payment of a proportionate share of the expense, although the most convenient means of draining his farm. Porter v. Armstrong, 129 N. C. 101, 39 S. E. 799. The mere fact that landowners have, by reason of their land naturally draining in that di of the amount fixed for such connection. So construing it, defendant comes within its scope and purpose, and is liable, under the decision in the Boen Case, for the amount claimed by plaintiff. As already suggested, the purpose of the resolution was to reimburse the city for the cost of the sewer. Whether, after it has been fully reimbursed, it may still require property fixed by the resolution, we need not deterowners making use of it to pay the amount record in the case now before us, the city mine. For aught that appears from the has not yet been fully reimbursed; and clearly, until then, it may require property owners in the vicinity of the sewer, making use thereof, to pay therefor. Order reversed and new trial granted. rection, the legal right to have the waters from their lands flow off over the lands below them lying within a drainage district, gives them no right to connect their drains with the artificial drains of the district without subjecting themselves to the conditions imposed by the statute of being deemed to have thereby voluntarily applied to be included within such district. People ex rel. Caldwell v. Wild Cat Drainage Dist. 181 Ill. 177, 54 N. E. 923. The right to conduct into a public ditch water falling or flowing by natural means upon lands assessed for the construction thereof, by means of lateral drains, does not extend to lands not assessed therefor, nor authorize the owner of assessed lands to collect, by artificial means, water from lands not so assessed, the natural outlet of which is in another direction, and discharge the same into the ditch in such quantities as to overtax the capacity thereof and overflow lower lands. Young v. Gentis, 7 Ind. App. 199, 32 N. E. 796. A landowner will be enjoined from constructing private drains on his land, and connecting them with a public ditch having its head on his land, thereby draining therein water from a portion of his farm not naturally flowing in that direction, and overtaxing the capacity of the public ditch to the injury of a lower proprietor, where the ditch was constructed with a limited capacity, calculated to drain only a small portion of his land immediately surrounding its head, and the amount of the assessment therefor was made accordingly, although assessed on the entire tract. Drake v. Schoenstedt, 149 Ind. 90, 48 N. E. 629. An injunction will lie to prevent one whose lands were not affected by the construction of a public ditch from cutting a ditch on his own land and that of another through a natural elevation so as to turn the waters of a large swamp partly on his land, with an outlet to which the waters flowed in a well-defined channel, in another direction, into such ditch, the effect of which would be to overtax its capacity and submerge and injure an owner's land. Pence v. Garrison, 93 Ind. 345. It is no defense to a prosecution, under the statute, for obstructing a public ditch, that the obstruction was caused by the connection by a landowner of his private drain therewith. Such connection cannot be made if the effect is to obstruct or destroy the ditch constructed under the statute as a work of public utility. Toops charged an abutting owner who did not particiv. State, 92 Ind. 13. A landowner along a public road at the sides of which are the usual road ditches may take advantage of the same to drain his land if such use does not inconvenience the public or individuals, or injure the public work. Thom v. Dodge County (Neb.) 90 N. W. 763. But the fact that highway drains constructed for the purposes of carrying off surface waters were paid for by general taxation does not give the taxpayers a right to mingle their sewage with the surface waters, and the granting of such right confers a benefit for which grantees are liable to assessment. Hunter's Appeal, 71 Conn. 189, 41 Atl. 557. A license to use a highway drain constructed by a town for the purpose of carrying off surface waters is limited to uses consistent with its proper functions, and is not equivalent to a perpetual right of connection for sewage purposes. Ibid. An abutting owner who, by consent of the public authorities and by the payment of half the cost of a sluiceway across the highway, is permitted to empty household drainage into an open sewer, acquires no property right in the street entitling him to damages, when, on the closing of the open sewer as offensive and his neglect, after notice, to connect with a new closed sewer in the highway, the officials cut off his drain. Camp v. Barre, 66 Vt. 563, 29 Atl. 1022. A township does not acquire a prescriptive right to discharge its sewage into the sewers and water course of an adjoining township by the fact that several of its householders have discharged their sewage in such manner for the prescriptive period, as the rights thereby acquired are personal to such householders. Kingstown v. Blackrock Twp. Ir. Rep. 10 Eq. 160. So, the inhabitants of a district cannot, as such, have a right by prescription to drain their sewage into the drainage system of an adjoining district, though such a right may become attached to the several houses connected by drains with the system, and which discharge sewage in to it for the legal period of prescription. Atty. Gen. v. Acton Local Board, L. R. 22 Ch. Div. 221, 52 L. J. Ch. N. S. 108, 47 L. T. N. S. 510, 31 Week. Rep. 153. Private drains. One who, in compliance with a requirement of the public authorities that he drain his lot, constructs, with their consent, a drain along a public street, has a right to its exclusive use, and other residents on the street cannot compel him to permit them to share its use. Carroll v. Connor, 93 N. Y. Supp. 1077. The dedication to the public of a street in which a private sewer has previously been laid by consent of the landowner does not make the sewer a public sewer; and one who connects therewith without the owner's consent commits a trespass. Smala v. Stewart, 32 Pittsb. L. J. N. S. 207. Equity will enjoin a landowner from connecting his drain with a private sewer laid in the highway, the remedy at law being inadequate when the sewer is incapable of serving both owner and trespasser. Ibid. A sewer built in the public street by private individuals and given to a city becomes as much a public sewer as if built by the city itself, for tapping which no more than the usual license fee fixed by ordinance can be pate in the building thereof, under a statute providing that parties owning property abutting upon a street or public highway, in or through which a public sewer or drain is constructed, should have the privilege of tapping and using it for the purpose of draining their premises, under such rules and regulations as may be prescribed. Springmyer v. State ex rcl. Bowler, 1 Ohio C. C. 501. Compulsory drainage. Notice and opportunity to be heard need not be given to a property owner before the passage of an ordinance under statutory authority requiring him to connect his drainage with the sewer and destroy any cesspool on the property. Harrington v. I'rovidence, 20 R. I. 233, 38 L. R. A. 305, 38 Atl. 1. Under the statute of Arkansas which provides that property owners near or adjacent to any city sewer shall connect their premises with the sewer when required to do so by the board of health, one whose property is not within a sewer district may connect with the sewer when ordered to do so by the board of health, and he is not required to pay any part of the cost of the construction of the sewer before so doing. Martin v. Illb, 53 Ark. 300, 14 S. W. 94. In determining the question of the duty of a mill owner to comply with a statute requiring him to connect his premises with a public sewer because of the objection that the sewer adjacent to his premises is not a public one, it is sufficient if the sewer is a public one below the premises in question, although it may not be above that point. Com. v. Abbott, 160 Mass. 285, 35 N. E. 782. Procedure. Mandamus will not issue to compel a board of public works to permit an abutting owner to tap and make connections with a sewer where no special duty is by statute enjoined upon the board to permit sewers to be tapped, but the matter is left entirely within the discretion of the board. State ex rel. Thoms v. Board of Public Works, 6 Ohio Dec. Reprint, 769. Where the statute directs that both application and permit for a connection with a public drain must be in writing, the statute is waived by the municipality in a suit for the breach thereof unless it is set up in the pleadings. Estes v. China, 56 Me. 407. Liability for injuries. Citizens who are required by the municipality to make connection with a public sewer cannot be sued by one upon whose property the sewage is cast by the municipality for damages for the injury so caused, or to enjoin their continued use of the sewer Carmichael v. Texarkana, 94 Fed. 561, Affirmed in 54 C. C. A. 179, 116 Fed. 845. Where a nuisance is created by the action of several persons in discharging the sewage from their premises into a drain belonging to the local sanitary authorities, which drain is inadequate, the local authorities, being bound to comply with the duty imposed upon them by the public health act of 1875 requiring them to provide sewers for effectually draining their district, cannot proceed against one of the persons discharging sewage into such drain to compel the abatement of the nuisance, as it is the duty of the local authority to provide a proper sewer. Fordom v. Parsons [1894] 2 Q. B. 780, 64 L. J. M. C. N. S. 22, 10 Reports, 426, 71 L. T. N. S. 428, 58 J. P. 765. Persons who independently and without cooperation or concert of action turn surface water into a drain and cause injury to property through which the drain flows cannot be jointly liable as joint tort feasors. Bonte v. Postel, 22 Ky. L. Rep. 589, 51 L. R. A. 187, 58 S. W. 536. But, under a statute authorizing local authoritles to compel abatement of a nuisance by one by whose act or sufferance the nuisance arises, one of several persons discharging sewage into a drain, from which it flows into an open sewer. creating a nuisance, may be proceeded against, where the sewage discharged by him is of itself sufficient to create a nuisance; although it was said by the court that such a person could probably not have been proceeded against where his contribution was not sufficient in itself to create a nuisance, though the aggregate amounted to one. Brown v. Bussell, L. R. 3 Q. B. 251. A person discharging noxious matter into a sewer cannot escape liability upon the ground that the municipality might have prevented the nuisance by properly flushing and trapping the sewer, as the fact that the municipality may have contributed to the nuisance does not relieve those creating it or contributing to it. St. Helens Chemical Co. v. St. Helens, L. R. 1 Exch. Div. 196, 45 L. J. M. C. N. S. 150, 34 L. T. N. S. 397. A canal company acting pursuant to statutory authority is not liable, in the absence of negligence on its part, for injuries resulting from its discharging the water of its canal into a sewer except for an obstruction in the sewer, of which it had no knowledge at the time. Boughton v. Midland G. W. R. Co. Ir. Rep. 7 C. L. 169. Such company is not guilty of negligence in not discontinuing Its discharge upon discover ing the existence of the obstruction, where to do so would necessitate suspending traffic on the canal. This is upon the ground that, the original discharge of the water having been lawful, it did not become unlawful by reason of the knowledge of its consequences. Ibid. A landlord constructing a drain by which the tenants from several of his buildings discharge their sewage is the person causing the nuisance resulting therefrom, under a statute authorizing the local board of authorities to proceed against the person by whose act the nuisance arises. Brown v. Bussell, L. R. 3 Q. B. 251. The turning of so great a quantity of water into a sewer that its capacity is exceeded, so that the contents overflow upon the street, is a public nuisance for which an indictment will lie; and no action can be maintained by an abutting property owner whose property is injured by the flowing of the sewage upon it. Waters v. Newark, 56 N. J. L. 361, 28 Atl. 717. A gas company is not entitled to discharge into the gutters and drains of a city large quantities of poisonous waters produced in the manufacture of gas. Such gutters are only intended to carry off the surface waters and those that percolate through the ground. Municipality No. One v. Gaslight Co. 5 La. Ann. 439. The maintenance by a cotton-mill company of outlets from closets and cesspools of its large factory into the public gutters of the city, causing offensive matter injurious to the public health to flow through the gutters, is such a nuisance as may be abated by an injunction issued on the complaint of the city board of health. Board of Ilealth v. Maginnis Cotton Mills, 46 La. Ann. 806, 15 So. 164. Equity will enjoin the discharging of refuse from a tomato canning factory into a public sewer, and thence into a small natural stream, whereby a nuisance is created. Butterfoss v. State ex rel. Lambertville Bd. of Health, 40 N. J. Eq. 325. The measure of damages for the overflow of an owner's land, destroying crops and causing permanent damages, caused by the wrongful discharge Into a public ditch of water not naturally flowing therein, is the value of the crops destroyed and the difference in value of the land before and after the trespass. Young v. Gentis, 7 Ind. App. 199, 32 N. E. 796. H. P. F. IOWA SUPREME COURT. Anna FITZGIBBONS v. MERCHANTS' & BANKERS' MUTUAL FIRE INSURANCE COMPANY, Appt. (126 Iowa, 52.) 1. The mere accumulation of interest on a mortgage, of which an insurer was notified at the time of issuing the policy on real estate, will not work a forfeiture of the insurance. 2. The institution of foreclosure proceedings against the real estate only will not work a forfeiture of an insurance policy covering real and personal property, which provides that it shall be forfeited by the institution of foreclosure proceedings against the "property insured." NOTE. For mortgage as effecting change of title or interest of insured property generally, see, in this series, Sun Fire Office v. Clark, 38 L. R. A. 562, and note. As to effect of prohibiting mortgage on part only of property covered by insurance policy, see also, in this series, State Ins. Co. v. Schreck, 3. A negative reply to a question in the proofs of loss as to the pendency of foreclosure proceedings against the property will not avoid the policy if, although instit ted, such proceedings had progressed to a final decree before the loss occurred. A (November 19, 1904.) PPEAL by defendant from a judgment of the District Court for Polk County in plaintiff's favor in an action brought to recover the amount alleged to be due on a policy of fire insurance. Affirmed. The facts are stated in the opinion. Mr. C. E. Campbell, for appellant: The breach of the terms of the policy by foreclosure proceedings without the knowl. 6 L. R. A. 524, and Wright v. Fire Ins. Asso. 19 L. R. A. 211, with note as to severability of insurance in same policy. As to effect of condition against encumbrance upon renewal, substitution, or alteration of encumbrance upon insured property, see Bowlus v. Phoenix Ins. Co. 20 L. R. A. 400 and note. edge or consent of defendant is fatal to | 561; Jordan v. State Ins. Co. 64 Iowa, 216, plaintiff's right to recover. Meadows v. Hawkeye Ins. Co. 62 Iowa. 387, 17 N. W. 600; Smith v. St. Paul F. & M. Ins. Co. 106 Iowa, 227, 76 N. W. 676. On petition for rehearing. At no time was it alleged or contended by the appellee in the district court that in order to render the policy void, the mortgage and foreclosure must cover the entire property insured. Nor was it alleged or contended that the foreclosure of the mortgage did not create a new and additional hazard. This court should not, therefore, have affirmed the case upon those grounds. Dean v. Hall, 4 G. Greene, 425; Hintermeister v. State, 1 Iowa, 101; Mumma v. McKee, 10 Iowa, 107; State v. Groome, 10 Iowa, 308; Berry v. Gravel, 11 Iowa, 135; Rockwell v. Kimball, 11 Iowa, 524; Elder v. Littler, 15 Iowa, 65; Starry v. Starry, 21 Iowa, 254; Kruck v. Prine, 22 Iowa, 570; McNaught v. Chicago & N. W. R. Co. 30 Iowa, 336; Evans v. Hawley, 35 Iowa, 83; Stanberry v. Dickerson, 35 Iowa, 493; State v. Cuddy, 40 Iowa, 419; Price v. B. C. R. & M. R. Co. 42 Iowa, 16; Trayer v. Reeder, 45 Iowa, 272; Davis v. Nolan, 49 Iowa, 683; Argall v. Pugh, 56 Iowa, 308, 9 N. W. 226; Wetmore v. McMillan, 57 Iowa, 344, 42 Am. Rep. 45, 10 N. W. 725; Wire v. Foster, 62 Iowa, 114, 17 N. W. 174; Babcock v. Board of Equalization, 65 Iowa, 110, 21 N. W. 207; Goodnow v. Plumb, 67 Iowa, 681, 25 N. W. 870; Garretson v. Equitable Mut. Life & Endowment Asso. 74 Iowa, 419, 38 N. W. 127; Bolton v. McShane, 79 Iowa, 26, 44 N. W. 211; Kenosha Stove Co. v. Shedd, 82 Iowa, 540, 48 N. W. 933; Independent District v. LuVerne, 88 Iowa, 713, Appx. 54 N. W. 221; Ryers v. Johnson, 89 Iowa, 278. 56 N. W. 449; Beacham v. Gurney, 91 Iowa, 621, 60 N. W. 187; Ross v. Hawkeye Ins. Co. 93 Iowa, 222, 34 L. R. A. 466, 61 N. W. 852; Paine v. Lettsville, 103 Iowa, 481, 72 N. W. 693; State v. Olds, 106 Iowa, 110, 76 N. W. 644; Talbot v. First Nat. Bank, 106 Iowa, 361, 76 N. W. 726; Hough v. Gearen, 110 Iowa, 240, 81 N. W. 463; Easton v. Somerville, 111 Iowa, 164, 82 Am. St. Rep. 502, 82 N. W. 475. As to these questions the appellant has not had its "day in court." Greenlee v. North British & Mercantile Ins. Co. 102 Iowa, 432, 63 Am. St. Rep. 455, 71 N. W. 534. 19 N. W. 917; Stone v. Hawkeye Ins. Co. 68 Iowa, 737, 56 Am. Rep. 870, 28 N. W. 47; 3 Joyce, Ins. § 2511. The policy of insurance in terms insures the two classes of property as a whole, and the terms of forfeiture are such that, unless the foreclosure proceedings involve all of the property, there is no violation of its terms, and the forfeiture will not be declared. Bills v. Hibernia Ins. Co. 87 Tex. 547, 29 L. R. A. 706, 47 Am. St. Rep. 121, 29 S. W. 1063. The policy of insurance is divisible, and is a separate undertaking to indemnify for and on account of the loss to the building and loss on the furniture. Being a separate undertaking and the contract being divisible, the plaintiff is entitled to recover the value of the personal property insured, because there has been a violation of none of the provisions of the contract with reference to the personal property. State Ins. Co. v. Schreck, 27 Neb. 527, 6 L. R. A. 524, 20 Am. St. Rep. 696, 43 N. W. 340; Merrill v. Agricultural Ins. Co. 73 N. Y. 452, 29 Am. Rep. 184; Koontz v. Hannibal Sav. & Ins. Co. 42 Mo. 126, 97 Am. Dec. 325; Lochner v. Home Mut. Ins. Co. 17 Mo. 247; Trabue v. Dwelling House Ins. Co. 121 Mo. 75, 23 L. R. A. 719, 42 Am. St Rep. 523, 25 S. W. 848; Coleman v. New Orleans Ins. Co. 49 Ohio St. 310, 16 L. R. A. 174, 34 Am. St. Rep. 565, 31 N. E. 279. Weaver, J., delivered the opinion of the court: Under date of August 9, 1897, the defendant insurance company issued to the plaintiff a policy indemnifying her against loss or damage by fire on her frame dwelling house in the sum of $850, and on household furniture in the sum of $500. The principal office of the defendant has at all times been in the city of Des Moines, Iowa, and the insured property was located in the adjacent town of Valley Junction. The policy was issued for a term of six years, and the premium thereon was made payable in yearly instalments or assessments. On May 12, 1902, the insured property was destroyed by fire. All the matured assessments or instalments of the premium had been duly paid, and it is conceded that plaintiff has furnished to the defendant due proofs of her Messrs. Carr, Hewitt, Parker, & loss, and that such loss upon the building Wright, for appellee: The defendant waived the provisions in relation to liens and encumbrances especially as to the mortgage on the building, when the policy was issued, and also the provision with reference to foreclosure thereof; and it is estopped from relying thereon. Williams v. Niagara F. Ins. Co. 50 Iowa, amounts to $700, and upon the personal property to $500. The defendant is therefore admittedly liable to the plaintiff upon the policy in suit in the sum of $1,200, unless it is relieved from such obligation by reason of matters pleaded in its answer. These defenses will be severally noticed in the further progress of this opinion. |