kins was estopped from denying the liability of the land to the satisfaction of its judgment. It appears that Lang was owing one Sutcliffe, and the latter, in negotiating for the purchase of machinery, proposed that Lang execute his notes to the company in payment. Its agent, T. J. Collins, went to Lang's home to ascertain his financial condition and whether the notes would be sat

# *

isfactory to the company. He testified: "I then understood that Lang owned the farm. I went to Lang's house. * Lang was there, and I think his wife was there, but I am not sure. We had a conversation about the giving of the notes in the house at the time. * I would not have accepted these notes in payment for the machinery if Lang had not owned the farm or the other property." The notes were those given in March, 1893, on which the judgment was rendered. It will be noted that Collins does not claim that a word was said to or by or in the presence of Lang or his wife concerning the title or ownership of any property he or she owned. For all that appears, he might have acquired his information concerning this from an entirely different source as from Sutcliffe who accompanied him. The most that can be said is that Mrs. Perkins may have been advised of the giving of these notes. An estoppel must be clearly established before it can be of any avail, and, as Mrs. Perkins' presence was merely a matter of surmise, and there was no claim that she heard the conversation, the plea cannot be held to have been established by this evidence.

4. It is also contended that, as the property was allowed to stand in her husband's name in secret trust for her benefit, she cannot be heard to claim ownership as against those who extended credit to Lang in reliance upon his ownership of the property. The 141 acres of land in controversy belong-❘ ed to John Brooks prior to 1875. Before his death he conveyed the land to his brother George Brooks in trust for his only heir, Mrs. Perkins. She married Lang in 1876 and, with her consent, George Brooks conveyed the property to her husband. By mistake 20 acres was omitted from the deed. Thereafter in 1883 Lang instituted a suit against his wife as the sole heir of Brooks, asserting therein the purchase of the 20 acres, and that it was omitted from the deed by mistake, and procured a decree of court appointing a commissioner who conveyed the land to him. Just why this was done instead of merely taking a deed from Mrs. Lang does not appear. Because of a defect in the title of 80 acres of the land, Lang entered it as a homestead before the United States Land Office and procured a patent thereof to himself in March, 1886. Lang also secured a decree quieting title to another 40 acres against one John Riser in 1883. Nevertheless they both testified that, during the entire period of their married life, they regarded this property as the wife's inheritance, and that it was under

stood between them that it was her property. In 1887, she inherited $2,000 more and this was paid over to her husband upon the understanding that he would transfer to her any property he purchased with it at any time she desired. The 20 acres involved and also the residence in Monona seems to have been purchased in this way. There is no controversy on this question and the authorities cited by the appellee on the theory that this property was conveyed to Mrs. Perkins in satisfaction of an indebtedness due her from her husband are not in point, as it is without support in the record. See Casey v. Casey, 116 Iowa, 655, 88 N. W. 937; Roberts v. Brothers, 119 Iowa, 309, 93 N. W. 289; Clark Bros. v. Ford, 126 Iowa, 460, 102 N. W. 421. On the contrary it fully appears that, for 20 years, the land, while belonging to Mrs. Perkins, was allowed to stand in her husband's name and to be held by him in secret trust for her benefit. He occupied the premises and treated them in all respects as his own, and the evidence is without dispute that credit was extended to him by plaintiff in reliance upon such ownership. It would be inequitable to permit his wife, after allowing him to obtain credit upon the apparent ownership of this property for so long a time to set up a claim thereto against the creditors who had trusted him in reliance upon such ownership. She must be presumed to have known that, in the ordinary course of business, he would be likely to obtain credit by reason of his ostensible ownership, and, having consented that the land stand in his name, she ought not to be heard to say, as against those extending credit in reliance on the security which she permitted him to hold out, for the purpose of defeating the collection of the indebtedness, that she, rather than he, owned the property. These principles are recognized in practically all the authorities. Iseminger v. Criswell, 98 Iowa, 382, 67 N. W. 289, and cases cited; Laing v. Evans (Neb.) 90 N. W. 246, and cases cited.

For these reasons, we think the several tracts of land should have been subjected to the payment of plaintiff's judgment. Reversed.

SHORS v. SHORS.

(Supreme Court of Iowa. Dec. 15, 1906.) 1. HUSBAND AND WIFE-SEPARATE MAINTENANCE-GROUNDS.

A suit for separate maintenance cannot be maintained except for a cause that would warrant a decree of divorce.

[Ed. Note. For cases in point, see Cent. Dig. vol. 26, Husband and Wife, §§ 1062-1065.]

2. SAME-CRUEL TREATMENT-ACCUSATIONS OF UNCHASTITY.

Frequent unfounded accusations of unchastity by a husband may endanger the life of the wife so as to become a sufficient ground for a suit for separate maintenance.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 26, Husband and Wife, § 1064.]

In a suit for separate maintenance of a wife on the ground of cruel treatment, consisting of unfounded accusations of unchastity, condonation by the wife is no defense where the unjust accusations were made up to the final separation of the parties, since a repetition of the act revives the condoned offense.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 26, Husband and Wife, §§ 1066, 1073.] 4. SAME-APPEAL-EFFECT ON JURISDICTION

OF TRIAL COURT-SUIT MONEY.

Code, § 3177, providing that the court may order either party to pay the clerk a sum of money for the separate support and maintenance of the adverse party and the children, and to enable such party to prosecute or defend the action, does not authorize the trial court to grant temporary alimony pending an appeal; the jurisdiction of such a proceeding being transferred to the Supreme Court by the appeal. [Ed. Note. For cases in point, see Cent. Dig. vol. 26, Husband and Wife, § 1098.] 5. SAME.

In an action for separate maintenance, an allowance to the wife for the expenses of an appeal of $150, together with costs of printing and other costs, is sufficient.

Appeal from District Court, Palo Alto County; W. B. Quarton, Judge.

Suit for separate maintenance and the custody of minor children. There was a crosspetition asking for a divorce from the plaintiff. Trial and judgment for the plaintiff. The defendant appeals. Affirmed in part and reversed in part.

Lynch & Berry and Thos. O'Connor, for appellant. Heald & Ralston and Davidson & Burt, for appellee.

SHERWIN, J. These parties were married in April, 1899, and lived together until shortly before this suit was brought, in April, 1905. They have two children, a boy now nearly seven years of age, and a girl about four years old. The plaintiff asks separate maintenance on the ground of cruel and inhuman treatment that endangers her life; the inhuman treatment alleged consisting of personal violence, threats, vile and opprobrious epithets, and oft-repeated charges of unchastity. The defendant asks an absolute divorce on the grounds of inhuman treatment and adultery.

It is the rule that a suit for separate maintenance cannot be maintained, except for a cause which would warrant a decree of divorce. Graves v. Graves, 36 Iowa, 314, 14 Am. Rep. 525. Inhuman treatment which would warrant a divorce must be such as to endanger life, and it must be treatment which has not been provoked or caused by the fault of the complaining party. Aitchison v. Aitchison, 99 Iowa, 93, 68 N. W. 573; Carlisle v. Carlisle, 99 Iowa, 247, 68 N. W. 681; May v. May, 108 Iowa, 1, 78 N. W. 703, 75 Am. St. Rep. 202. It is also true that the testimony of the complaining party must be corroborated by other evidence. Code, § 3173.

It is the appellant's contention that the plaintiff's own testimony wholly fails to show 110 N.W.-2

if such were not the case, there is no evidence corroborating her. We shall not detail the evidence supporting the allegations of either party. Much of it is of a character unfit for publication, and no benefit can be derived from a recital of it in this opinion. It is sufficient to state our conclusion, based on a careful reading and consideration of the entire record. We doubt whether the plaintiff's case could be sustained on the grounds of personal violence and threats alone, but she testified that the defendant repeatedly charged her with being lewd, unchaste, and guilty of adultery; that he denied that he was the father of her daughter, and abused the child because thereof. We have no doubt that these accusations were made by the defendant, and that they were continued until this suit was brought. It is true that he in a way denies making them; but there is testimony corroborating to some extent the plaintiff, and this, with his specific and wholesale charges of adultery in his cross-petition, furnish the full corroboration required by the statute. There is sufficient evidence that this treatment on the part of the defendant did and would endanger the plaintiff's life. There may be inhuman treatment that endangers the life, although no physical injury

be inflicted. Treatment which affects the mind to such a degree as to destroy health and endanger life is a cause for divorce under the statute. Sackrider v. Sackrider, 60 Iowa, 397, 14 N. W. 736; Berry v. Berry, 115 Iowa, 543, 88 N. W. 1075. Unfounded accusations of unchastity may wound the' feelings and destroy the wife's peace of mind to such an extent as to endanger her life as surely and as certainly as extreme physical violence. There is no substantial evidence of unchastity or adultery on the part of the plaintiff. The defendant finally limited the charge to a transaction which is alleged to have occurred at a dance at one Poduska's, but he failed to sustain that, and, if the testimony of the plaintiff, the son, and Nedved be true, she was guilty of no wrong. That Nedved followed her to the room where the boy was is undisputed, but the evidence touching that transaction shows clearly that the plaintiff was guilty of no indiscretion. Furthermore, the defendant's statement of the situation of his wife and Nedved when he looked into the room is wholly inconsistent with his action. Had he made the discovery he testifies to, he would not have left the pair with no other comment or action than a statement to his wife that he was ready to go home and was waiting for her. In our judgment the defendant has utterly failed to substantiate the charges made against the plaintiff in his cross-petition, or to show any justification for the repeated accusations made to her.

It is suggested in argument that there was condonation on the part of plaintiff, but there is nothing in the claim. The unjust

accusations were made up to the very moment of final separation, and, even if there had been a mutual understanding that previous charges were to be forgiven, it was based on condition of future good conduct, and a repetition of the act revives the condoned offense. Craig v. Craig (two cases) 105 N. W. 446, 2 L. R. A. (N. S.) 669; Ellithorpe v. Ellithorpe, 100 N. W. 328. Both Iowa cases.

The trial court adjudged the plaintiff to be entitled to separate maintenance, and ordered that the amount awarded be paid quarterly. An attorney's fee of $250 was also allowed. The judgment was appealed from, and after the appeal had been perfected the plaintiff made application to the district court for an additional allowance for suit money and for the payment of temporary alimony pending the appeal, which allowances were made, and the defendant appeals from the order. His contention is that the district court was without jurisdiction to make the order after an appeal to this court had been perfected and a supersedeas bond filed. It is the general rule in this state that, when an appeal in equity is taken, all power of the court below over the parties and the subject-matter of the controversy is lost until the case, or some part thereof is remanded back for its further action. Levi v. Karrick, 15 Iowa, 444; Stillman v. Rosenberg, 111 Iowa, 369, 82 N. W. 768; Dunton v. McCook, 120 Iowa, 444, 94 N. W. 942. And the rule should obtain in this case unless an exception be made because of section 3177 of the Code, which is as follows: "The court may order either party to pay the clerk a sum of money for the separate support and maintenance of the adverse party and the children, and to enable such party to prosecute or defend the action."

The question thus presented has not heretofore been determined by this court so far as we are advised, but it has undoubtedly been the general practice to treat the case after an appeal and pending such appeal as solely within the jurisdiction of this court. It is manifest that, as to all questions which were in fact determined by the trial court, an appeal deprives it of further jurisdiction until there has been a remand of the case by this court, except in cases where the statute otherwise provides. Section 3177 providing for an allowance for support during litigation and to enable the party to prosecute or defend the action, the appellee contends that it gives the trial court power to order the payment of suit money for prosecuting or defending in this court at any time while the appeal is pending. The section under consideration, read in connection with the rest of the chapter, clearly refers to the powers of the trial court, and nothing else; and it is a fair presumption that the Legislature intended only to give the trial court control over the matter while the litigation was pending before it. There can be no se rious question, we think, as to the right of

this court to protect its jurisdiction on appeal by ordering the payment of suit money for prosecuting or defending on appeal. Const. art. 5, § 4. It is the established practice to do so, and, indeed, such power was invoked by the appellant and exercised by the court in this case. The right to suit money for prosecuting or defending here can be heard and determined with practically the same facility and promptness that obtains in the district court, and no reason appears for the existence of jurisdiction in both courts after appeal. In fact, it is quite manifest that there will be less annoyance and delay if the jurisdiction is lodged in one court only. The adjudications in other jurisdictions are in conflict on the question, and the cases rest on the provisions of statutes as a general thing. The Code of Civil Proc. of New York provides that a temporary allowance may be made "from time to time during the pendency of the action," and under that statute the Court of Appeals of that state held that the trial court retained jurisdiction to make an order for alimony pending an appeal. McBride v. McBride (N. Y.) 23 N. E. 1065. Idaho has a similar statute, and it was given the same construction there. Roby v. Roby (Idaho) 74 Pac. 957.

The following cases also support the appellee's contention: Rohrback v. Rohrback (Md.) 23 Atl. 610; Reilly v. Reilly, 60 Cal. 624; Hunter v. Hunter, 100 Ill. 477.

It will be observed that both the New York and Idaho statutes are broader than our own, in that they expressly authorize the trial court to make an order "during the pendency of the action," without any limitation as to the court where the case may then be pending, while section 3177 contains no such express authority. Under the California statute it is held that the trial court alone has jurisdiction to make the order. It is generally conceded that, if the trial court retains jurisdiction pending an appeal, it must be because of a statute giving to it such power, and this for the reason that the power of the trial court has been suspended by the supersedeas until the appellee court shall pass on the question; and the proceeding for alimony is not distinct from, or independent of, the original action. 2 Bish. Mar. & Div. § 423; Krause v. Krause, 23 Wis. 354; State v. Phillips, 32 Fla. 403, 13 South. 920. As we have said, the decisions are not uniform on the question under consideration. In the following cases it is held that the trial court has no jurisdiction to order suit money after an appeal has been perfected: State v. Phillips, supra; Cralle v. Cralle, 81 Va. 773. Lewis v. Lewis, 20 Mo. App. 546; Lake v. Lake, 16 Nev. 363; Id., 17 Nev. 239, 30 Pac. 878.

The appellee urges that Mitchell v. Roland, 95 Iowa, 314, 63 N. Y. 606, supports her contention. In that case the plaintiff filed his petition for the appointment of a receiver to manage and control real property pending

case.

litigation involving the title thereto. A hearing was had and a receiver was appointed after an appeal in the original suit was perfected and a bond given, and the only question presented for determination was whether the trial court had jurisdiction to appoint a receiver pending the appeal in the main We held in the affirmative, basing the decision on a statute providing for the appointment of a receiver to care for property "during the pendency of the action," and saying: "The statute does not provide when application for a receiver may be made, and the appointment authorizes the receiver to control the property during the pendency of the action. This would include the pendency of an appeal in this court." The statute under which the holding was made is practically the same as the New York and Idaho statutes, and is, as we have said, much broader than section 3177, and is distinguishable therefrom because of such difference. We believe that the due and orderly administration of the law will be best subserved by the rule which we here adopt, and that the order appealed from should be reversed.

The appellee filed in this court a motion for additional suit money which was submitted with the case. We think it should be denied. We have already allowed her the sum of $150 for defending her judgment here, and as she will recover her costs of printing, with other costs, we think the allowance sufficient.

The judgment granting the plaintiff separate maintenance and alimony with the custody of the children is affirmed; and the order for suit money and alimony made after appeal is reversed.

Affirmed in part and reversed in part.

LAKE CITY ELECTRIC LIGHT CO. v. McCRARY, County Treasurer, et al.

(Supreme Court of Iowa. Dec. 15, 1906.) 1. TAXATION-ASSESSMENT-VALIDITY.

That an assessor took into consideration the value of the franchise of an electric company in assessing its electric light plant did not render the assessment void so that the collection of the tax based thereon would be restrained, though a separate assessment of the franchise itself would be invalid.

2. ATTORNEY AND CLIENT-AUTHORITY OF ATTORNEY-PRESUMPTIONS.

On appeal in a suit to restrain the collection of a tax, where the record shows that the county attorney was disqualified by reason of his ownership of stock in the plaintiff corporation, and that the attorney appearing for the defense was duly appointed, it will be presumed that he was authorized to prosecute the appeal until at least there is some repudiation of his authority by his client.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 5, Attorney and Client, §§ 94, 95.]

Appeal from District Court, Calhoun County; F. M. Powers, Judge.

Action in equity to enjoin collection of tax. Decree for plaintiff, and defendants appeal. Reversed.

J. B. McCrary, for appellants. E. C. Stevenson, for appellee.

WEAVER, J. The plaintiff is the owner of an electric light plant in the city of Lake City, Iowa. The assessed valuation of this property, as listed and returned by the assessor of said city for the year 1900, was $8,000; for the year 1902, $7,500, and for the years 1903 and 1904, $12,000. The taxes levied in each of said years on the taxable proportion of the assessed valuation have never been paid, and this action is brought to enjoin the treasurer from their collection.

The demand for this release from liability is based on the claim that the assessment of the property and levy of taxes thereon are void because the assessor, in fixing said valuation, included therein the value of the plaintiff's franchise as well as the value of the tangible property constituting the elec tric light plant. The evidence, relied upon to sustain this allegation, is found in a paragraph of an agreed statement of fact which reads as follows: "That when said assessments were made all the property. including franchises and every holding and asset of said institution, was taken and included in fixing the said assessments, and that the value fixed was the value of all of said holdings. That the value of all property embraced in the buildings, machinery, mains, poles, wires belonging to said corporation was, and is eight thousand dollars, and that with said franchises the total value is $12,000, the assessed value for said years." It is said in argument that, under the laws of this state, the franchise of a public service corporation is not taxable, and that the agreed statement of facts clearly shows that the taxes in controversy were levied upon the plaintiff's franchise, and are therefore void and uncollectible. Of the statute governing the assessment of such property (Code, § 1343) this court has said that it "was apparently drawn with care to exclude the idea of making the franchise a distinct item of valuation in the assessment of such property for taxation" (Marion v. Railroad Co., 120 Iowa, 263, 94 N. W. 501); and if we had here an assessment of a franchise and levy of taxes thereon we should feel impelled, under the authority of this precedent, to sustain the decree entered by the trial court. But we find no such state of facts. The only property listed and assessed was the electric light plant. The fact, if it be a fact, that, in arriving at its value, the assessor proceeded upon a wrong theory, or took into consideration elements and conditions which should have been left out of the calculation, and thereby gave to the property an exaggerated valuation, would have no effect to invalidate the assessment, or render void the levy of taxes thereon. Such an error is neither more nor less than an excessive valuation for the remedy of which the owner may apply to .the proper board of review.

This remedy, we have often held, is exclusive, and, if neglected or ignored, equity will not interfere to relieve the owner from his obligation to pay the taxes levied upon such assessment. See Collins v. Keokuk, 118 Iowa, 30, 91 N. W. 791, and cases there cited.

a

It is true that the tangible property of the plaintiff was of the agreed value of $8,000 and that, with its franchises, the total value was $12,000, a sum equal to the value fixed by the assessor, but this is by no means an agreement that the franchise was assessed for taxation; and, even if it were so agreed, it would be contradicted by the other agreed fact that the assessment listed and returned by the assessor was the single sum of $12,000 on the property of plaintiff. Had the assessor listed and returned the franchise as a subject of taxation upon a valuation of $4,000 and the present action had been brought to enjoin the tax levied upon that valuation, then the question which plaintiff seeks to raise would be pertinent. The stipulated fact is not that the franchise was assessed, but it is in substance that the fact of the existence of a valuable franchise was one of the facts which the assessor took into consideration in placing a value upon the electric light plant. Even if this were wrong basis of estimating the value, it is an error which does not go to the jurisdiction of the assessor, nor render void the assessment made by him. Indeed, we think that the existence of the franchise and the fact that the light plant was a going concern instead of a mere aggregation of dead material were matters which the assessor was entitled to consider in appraising the property, and that such valuation is in no manner inconsistent with the general proposition that the franchise as such is not a taxable item of property. It is not denied that plaintiff did have property on which it is in duty bound to contribute its proper proportion or share to the public revenues. The listed valuation as returned by the assessor is stated in gross in the single sum of $12,000. It is not within the province of this court to go behind that assessment, and separate the valuation so returned into two or more distinct items, some of which are and others of which are not proper subjects of taxation. The assessment of property is, within a limited sense, a judicial act, and where the statute provides a method by which such act may be reviewed, the person aggrieved by the assessment (at least so far as the matter of valuation is concerned), must pursue that remedy, or forever after hold his peace. In addition to our own cases on this point, see Case v. Dean, 16 Mich. 12; Monroe v. Town, 43 Conn. 309; Mix v. People, 116 Ill. 265, 4 N. E. 783; Gas Co. v. January, 57 Cal. 614; Red River, etc., v. Parker, 41 La. Ann. 1046, 6 South. 896; Osborn v. Danvers, 23 Mass. 98; Howe ▼. Boston, 61 Mass. 273; Com. v. Cary, 98

Mass. 19. Moreover, it is a fundamental principle that if any portion of the tax levied upon property is a valid and proper charge, a court of equity will not interfere by injunction until the sum which the owner ought to pay has in fact been paid or tendered. See Collins v. Keokuk, supra, and cases there cited-also, Glass Co. v. McCaleb, 81 Ill. 556.

These conclusions require a reversal of the decree appealed from unless appellee's objections to the jurisdiction of this court are to be held well taken. It is said that counsel representing the appellant is not the county attorney, and shows no authority to take the appeal or to appear in the case. Assuming that this is a question which may be thus raised, we have to say that the record does disclose that the county attorney, by reason of his ownership of stock in the plaintiff corporation, was disqualified to act, and that the attorney now appearing for the appellants was duly appointed to conduct the defense. As such we will presume that he was authorized to prosecute the appeal until, at least, there be some repudiation of his authority by his clients. It may further be suggested that although plaintiff saw fit to make the county a party defendant, it was not a necessary party, and the treasurer. whose acts were sought to be controlled by the injunction, had the right to employ counsel other than the county attorney to resist the issuance of the writ if he saw fit to do So. Nor would the treasurer be required to obtain the authority of the board of supervisors before taking an appeal from the injunction order.

The objection urged by the appellee cannot be sustained. For the reasons hereinbefore stated, the judgment of the district court is reversed.

ELLIS v. REPUBLIC OIL CO. (Supreme Court of Iowa. Dec. 15, 1906.) 1. EXPLOSIVES OIL INJURIES NEGLIGENT SALE-QUESTION FOR JURY. In an action for death caused by an explosion of a substance sold by defendant for kerosene and use by plaintiff's intestate such, evidence held sufficient to require submission of defendant's negligence in the sale and delivery of such substance to the jury. [Ed. Note. For cases in point, see Cent. Dig. vol. 23, Explosives, § 6.]

2. NEGLIGENCE-CONTRIBUTORY

-PRESUMPTIONS.

as

NEGLIGENCE

Where there was no living witness to an explosion which resulted in intestate's death, or of the circumstances under which she died, her administrator in an action for wrongful death was entitled to the presumption that she was in the exercise of due care.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 37, Negligence, §§ 221, 229.]

3. SAME-USE-CONTRIBUTORY NEGLIGENCEQUESTION FOR JURY.

Where intestate was killed by an explosion while about to use what she believed to be