had taken the oath of office before a notary public, were refused recognition as members of the city council.

It is evident that the election was invalid, either as to the relator and Montgomery, voted for as councilmen at large, or as to the three defendants, voted for as councilmen from their respective wards. If the election was under Acts 32d Gen. Assem., then the councilmen at large were properly elected, and the council consisted of these two councilmen at large and the members of the former council, one from each ward holding over; for there is nothing in the statute to warrant the construction that the hold-over members were being legislated out of office before the terms for which they had been elected had expired. But if the election was under the provisions of the Code as they stood prior to the change, then the council consisted of the three members one from each ward, holding over, and the three defendants.

The repeal of Code, §§ 645, 646, by Acts 32d Gen. Assem., above referred to, was in terms absolute. But a repealing statute, although absolute in terms, and declared to be in full force and effect from the time of publication, as provided for therein, may nevertheless continue in force, for some purposes and to some extent, the provisions of the statute repealed. In Smith v. People, 47 N. Y. 330, an absolute repeal was held to be qualified by reason of a purpose manifested in the repealing statute as to the subject-matter not covered by the repealing statute. The language of section 3 of the statute as above quoted expressly contemplates that in some of the cities of the state elections shall continue to be held, in accordance with the provisions of Code, § 646, until a future time. It is provided that, in cities of the second class electing a mayor in even-numbered years, the terms of councilmen and officers expiring in 1909 is extended for one year, and that at the election at which a mayor is elected in .1910 the council shall be elected in accordance with the provisions of this act. We reach the conclusion that, while Acts 32d Gen. Assem., above referred to, came into full force and effect at the date of its publication in March, 1907, it was expressly provided by that act that elections of councilmen and other officers in cities of the second class, in which mayors are elected in even-numbered years, should be held in 1908, as provided for in Code, § 646, and that in 1910, for the first time, councilmen should be elected in accordance with the provisions of the act.

There

fore the defendants were duly elected councilmen from their respective wards, and entitled to hold office for two years; and, as no councilmen at large were to be chosen at that election, the relator and Montgomery did not become councilmen at large, although voted for at that election, and declared to be elected by the board of canvassers,

The judgment of the trial court is affirmed.

In the absence of fraud, an express trust cannot be established by parol.

[Ed. Note. For cases in point, see Cent. Dig. vol. 47, Trusts, §§ 62-65.]

2. SAME RESULTING TRUST-PAROL EVIDENCE.

A resulting trust may be established by parol. [Ed. Note.-For cases in point, see Cent. Dig. vol. 47, Trusts, §§ 130-133.]

3. SAME-NATURE OF RESULTING TRUST.

Where one person pays the price for real estate and takes title in another, a resulting trust arises, and the latter obtains by operation of law title as trustee for the use of the former.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 47, Trusts, § 102.] 4. WITNESSES NECESSITY.

COMPETENCY

OBJECTIONS

An objection that a witness is incompetent under Code, § 4604, prohibiting certain persons from testifying to transactions with decedents, must, to be available, be interposed at the trial.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 50, Witnesses, § 727.]

Appeal from District Court, Linn County; M. P. Smith, Judge.

On May 5, 1905, J. J. Snouffer, Jr., procured a loan of $15,000 from the Citizens' National Bank of Cedar Rapids, and to secure the payment thereof procured his parents, J. J. and Ann J. Snouffer, to convey to J. R. Amidon, as trustee for the bank, real property. Amidon and the borrower executed a contract by the terms of which the former agreed to reconvey the property to J. J. Snouffer upon payment, and in event of failure to pay grantee was authorized to sell it, or so much as was necessary, to satisfy the balance owing and any expenses incurred. On the 14th of March, 1907, there was owing to the bank $2,766.26, for which plaintiff demanded judgment and a decree directing him to sell the premises at public or private sale without redemption, or in lieu of this relief enter a decree of foreclosure. J. J. Snouffer had died since the execution of the deed, and his wife, individually and as executrix of her husband's estate, answered that the property never belonged to deceased, but was owned by J. J. Snouffer, Jr., who had conveyed his interest therein to Ann J. Snouffer, and she consented to the entry of a decree directing the sale of the property by the trustee privately as prayed. Annie Stevens, a daughter of deceased, set up in her answer that deceased was owner of the property, that the debt was not as much as stated, that the deed should be treated as a mortgage, and the property sold at public sale subject to redemption. Upon hearing the court found the amount stated to be due, that the property belonged to J. J. Snouffer, Jr., and that Ann J. Snouffer

was present owner thereof, ordered the same to be sold by the trustee at private sale, and cut out all the right and interest of defendants, except Ann J. Snouffer. Annie Stevens alone appeals. Affirmed.

E. C. Preston and S. K. Tracy, for appellant. Jamison & Smyth, for appellees.

LADD, C. J. The appellant, Annie Stevens, had no interest in the property in controversy, save as daughter and heir of J. J. Snouffer, deceased, and unless the latter was owner thereof, or had some interest therein which descended to his heirs, she is not in a situation entitling her to question the correctness of the decree. The oral evidence adduced shows conclusively that J. J. Snouffer, Jr., purchased the property, paid the consideration therefor, took possession of it, and operated it as a stone quarry, but took the title in the name of his father, J. J. Snouf fer; that the latter conveyed it to plaintiff as security at the son's request; and that the plaintiff contracted to reconvey upon the payment of the loan. The evidence adduced was objected to on the ground that a trust may not be established by parol evidence. That is true, fraud not being charged, of an express trust. Gregory v. Bowsley, 115 Iowa, 327, 88 N. W. 822; Hoon v. Hoon, 126 Iowa, 391, 102 N. W. 105; Heddleton v. Stoner, 128 Iowa, 525, 105 N. W. 56; Donaldson v. Investment Co., 130 Iowa, 467, 106 N. W. 192. But a different rule prevails as to implied trusts. The law is well settled that, where one person pays the price and takes title in another, a resulting trust arises, and the latter obtains the title as trustee for the use of the former. This happens by operation of law, and not owing to any agreement. Ratliff v. Ellis, 2 Iowa, 59, 63 Am. Dec. 471; Cooper v. Skeel, 14 Iowa, 578; Harris v. Stone, 15 Iowa, 273; Sunderland v. Sunderland, 19 Iowa, 325; Maple v. Nelson, 31 Iowa, 322; Shepard v. Pratt, 32 Iowa, 296; Paige v. Paige, 71 Iowa, 318, 32 N. W. 360, 60 Am. Rep. 799; Acker v. Priest, 92 Iowa, 610, 61 N. W. 235; Maroney v. Maroney, 97 Iowa, 711, 66 N. W. 911; Hagen v. Powers, 103 Iowa, 593, 72 N. W. 771; Williams v. Williams, 108 Iowa, 91, 78 N. W. 792; Andrew v. Andrew, 114 Iowa, 524, 87 N. W. 494; Luckhart v. Luckhart, 120 Iowa, 248, 94 N. W. 461; Kringle v. Rhomberg, 120 Iowa, 472, 94 N. W. 1115; Malley v. Malley, 121 Iowa, 237, 96 N. W. 751.

terest therein. In view of this conclusion, it is unnecessary to pass on the motion to dismiss the appeal.

Affirmed.

MYERS et al. v. LEES.

(Supreme Court of Iowa. July 9, 1908.) 1. LIMITATION OF ACTIONS-COMPUTATION OF PERIOD-PERFORMANCE OF CONDITIONS PRE

CEDENT-MORTGAGES-Foreclosure.

In a suit to foreclose a mortgage executed April 29, 1889, to secure payment of a note on November 1st of that year, expressly made subject to the life estate of P. in the mortgaged premises, evidence held sufficient to sustain a finding that the note, which had been lost, did not contain a condition that no suit to foreclose the mortgage could be maintained until the termination of the life estate, and hence foreclosure was barred by limitations. 2. SAME-BURDEN OF PROOF.

Where, in a suit to partition certain land, defendant L. claimed under a mortgage which was barred by limitations, the burden was on him to show facts suspending the statute.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 33, Limitation of Actions, § 713.]

Appeal from District Court, Warren County; J. D. Gamble, Judge.

"Not to be officially reported."

The opinion states the material facts. Affirmed.

Henderson & Henderson, for appellant. O. C. Brown, for appellees.

PER CURIAM. This action was begun in equity for the partition of real estate. The only controversy arises upon an alleged mortgage lien held by the appellant on the lands to be partitioned. The mortgage introduced in evidence purports to have been executed April 29, 1889, to secure payment of a note of $50 payable November 1, 1889, and is expressly made subject to the life estate of one Eliza Petre in the mortgaged premises. To avoid the defense of the statute of limitations the petition alleges that there was written upon or made a part of the note (which has been lost and cannot be produced in evidence) a memorandum or condition to the effect that no suit for foreclosure of the mortgage could be maintained until the termination of the life estate of Mrs. Petre. The life tenant died in July, 1906, after which this action was begun. The appellees deny that there was any condition in the note postponing the time of its enforcement, and plead the statute of limitations. On hearing the testimony the court found that the appellant's right of action was barred by the statute of limitations. The correctness of this holding is the only question before us, and appellant stakes his case upon the single proposition that the clear preponderance of the evidence sustains the contention that the note contained the alleged condition postponing the time for enforcement of the security until the death of Mrs. Petre.

We think otherwise. The only direct evi

dence to sustain this claim is that of the appellant himself, and his evidence is in a material degree inconsistent with his pleading; for, instead of a mere condition postponing the enforcement of the mortgage, he swears that the note itself was made to become due at the death of the life tenant. This is sought to be corroborated by the testimony of two practicing lawyers, who say that some eight or ten years before the commencement of this suit the appellant showed them the note and asked advice concerning his rights thereunder. One of them has no recollection of the facts, but says the impression has been left on his mind that from the showing or statements made to him he advised appellant that nothing could be done in the premises until after the death of Mrs. Petre. The other testifies substantially in the same way, and has the impression that there was some term or condition written upon the note below the printed form; but he is not positive of it, and speaks not so much from his memory of the language of as from the impression left in his mind upon the question of law involved. Opposed to this uncertain and unsatisfactory testimony we have the language of the mortgage itself, which describes the note as becoming due on November 1, 1889. To this is added the testimony of the husband of the person signing the note, who saw it made and says that it was written to become due November 1, 1889, and did not contain the alleged condition. Moreover, the mortgage is expressly made subject to the life estate of Mrs. Petre, a condition which would be meaningless if its enforcement was to be postponed until after such life estate had expired.

The burden is upon the appellant to establish the fact that the alleged condition was embodied in the contract, and in this we think he has failed, and the judgment appealed from must be affirmed. The amended abstract filed by the appellees appears to have been entirely unnecessary, and the cost thereof will not be taxed to the appellant. All other costs taxed to appellant.

Affirmed.

LINDQUIST v. KING'S CROWN PLASTER

CO.

(Supreme Court of Iowa. July 9, 1908.)

1. MASTER AND SERVANT-INJURY TO SERVANT -VOLUNTEERS.

A boy was employed to work in defendant's brick plant. It being shut down, he was set to work at peeling logs just outside it. A belt breaking in a plaster mill 75 feet away, also operated by defendant, the boy, without any direction or invitation so to do, went there, got on a ladder, and held the belt for the one repairing it. The foreman, discovering him, told him he had no business there, and ordered him to get down from the ladder, to let the machinery alone, and to return to his work of peeling logs. A few minutes after doing as he was ordered the belt again broke, and he returned and got on the ladder, which also breaking, he was caught in the machinery, and killed. Held,

that he was a volunteer, to whom the master was not liable.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 153-156, 652658.]

2. SAME-CONTRIBUTORY NEGLIGENCE.

A boy who leaves the work for which he was employed, and in disobedience of the orders of the foreman goes up a ladder to hold a belt for one who was mending it, is guilty of contributory negligence, relieving the master from any liability because of the ladder breaking, entangling him in the machinery.

!Ed. Note. For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 759-775.]

Appeal from Superior Court of Cedar Rapids; J. H. Rothrock, Judge.

Action at law to recover damages for the death of Edward W. Lindquist, deceased, due as is alleged to defendant's failure to properly construct and guard its machinery. Trial to a jury. Directed verdict for defendant, and plaintiff appeals. Affirmed.

Rickel, Crocker & Tourtellot, for appellant. Dawley & Wheeler, for appellee.

DEEMER, J. Plaintiff, as administrator of his son's estate, brings action to recover damages for the death of the son, Edward W. Lindquist, resulting from his being caught in a shaft in one of defendant's mills, and receiving injuries from which he died. It is claimed that the son was in defendant's employ, and that defendant negligently failed to perform its common-law and statutory duties in the construction and care of its machinery. Defendant denied all negligence on its part, pleaded contributory negligence on the part of the son, and averred that when injured the boy was a mere volunteer, engaged in a dangerous work for which he was not employed, and against which he had been warned. A jury was called, and at the conclusion of plaintiff's evidence, on defendant's motion, a verdict was directed for defendant, and plaintiff appeals. We shall assume from the purposes of the case that defendant was guilty of negligence in not covering or guarding its machinery as required by section 4999a2 of the Code Supplement of 1907, and in not providing belt shifters as required by that act. And the only questions in the case as we view it are these: (1) Was defendant's failure to comply with the statute the proximate cause of the injury? (2) Was Edward Lindquist a volunteer in doing the service he was performing when injured? (3) Was he guilty of such contributory negligence as to defeat recovery by his administrator?

It appears from the testimony that when injured the boy was a little over 16 years of age. Defendant is a corporation operating a brick plant and plaster mill in the city of Cedar Rapids. In connection with these, it was also operating a sand pumping plant. These plants were in different buildings something like 70 feet apart. Plaintiff's son was employed by defendant to work in the brick plant, and had been at this business about three months at the time he received his in

that Lindquist did assist Knight and others in repairing belts in the brick plant two or three times before the accident in question, but he never was about any of the machinery or assisted in belt repairs save in the brick plant. The facts so far recited clearly show that while defendant was perhaps at fault in not properly constructing or guarding its machinery, and that a jury may have found its failure in this respect was the proximate cause of the injury, yet it does not sufficiently appear that defendant owed any such duty to plaintiff's son as to make its failure actionable negligence. From the facts recited it clearly appears that the boy was a mere volunteer, who left the work at which he was employed, and of his own volition, and without direction from any superior, went to assist Whitsell in the repair of the belt. Moreover, it is manifest that his act in so doing was against the express command of the foreman of the building, and that, with knowledge of the dangers and contrary to express orders, he went upon the ladder and received the injuries of which he complains. This makes a clear case of contributory negligence. That a master is not liable to a mere volunteer who undertakes without request and without his knowledge to assist a servant is too well settled to require the citation of authorities. But see, Mellor v. Merchants Co., 150 Mass. 362, 23 N. E. 100, 5 L. R. A. 792; Kauffman v. Maier, 94 Cal. 269, 29 Pac. 481, 18 L. R. A. 124; Cahill v. Hilton, 106 N. Y. 512, 13 N. E. 339; Flower v. Pa. R. R., 69 Pa. 210, 8 Am. Rep. 251; Parent v. Nashua Co., 70 N. H. 199, 47 Atl. 261. And that the boy was guilty of contributory negligence in going upon the ladder and attempting to assist in the work against the express commands of his superiors, see, Cahill v. Hilton, 106 N. Y. 512-522, 13 N. E. 339.

But it is insisted on behalf of appellant that assisting in the repair of the belt as the boy did was a part of his duties, and that notwithstanding the orders of Louden, plaintiff is entitled to recover. Even were it shown that the boy's general employment contemplated such assistance as he was rendering to the man engaged in repairing the belt, we do not see how to escape the conclusion that, when he was ordered away from the particular machinery about which he was engaged not more than five minutes before the accident occurred and was told to go about other work, his administrator can get away from the proposition that violation of this order was contributory negligence. Even if there were a former general order, it was manifestly superseded by this subsequent specific one to keep away from that particular machine, and not to assist in the work he was then attempting to perform. It is not a case of conflict of orders; but, at most, a general one, which was superseded by a subsequent specific one relating to the very work about which the boy was employed when he

received his injuries. There is testimony that the deceased before his injury had held belts several times in the brick plant while they were being repaired, and that Knight directed him to do so. But this is quite a different proposition from holding a belt while standing upon a ladder close to a boxing in the plaster mill. There was also testimony to the effect that, when a belt broke, it was the duty of the first one there-that is, the first employé, the nearest one at hand-to assist in repairing the belt by holding it from the shaft. But the witness who gave this testimony manifestly had reference to the employé in the particular building nearest at hand, not to any of defendant's employés, no matter what their work or employment. What we mean is that the evidence does not show that Lindquist was ordered to hold belts away from all shafts about defendant's premises, or that his employment contemplated any work away from the brick plant except as he was specifically ordered to perform it. His du ties were in connection with the brick plant, and these were specifically pointed out, and, when that closed down, he was directed to go to peeling logs and not to assist in the plaster mill, and, when he went into that mill to hold the belt away from the shafting, he was not following out his general orders. But, if he were, he had been specifically directed on the day in question to peel logs. This was to be performed away from the plaster mill, and he was not directed to perform any work therein. Moreover, when his presence upon the ladder was discovered by the foreman, he was directed to leave the place immediately and go to peeling logs. There was no confusion regarding his orders, and no room for him to be deceived regarding his duties. The order to leave the ladder and go to work peeling logs was specific, and could not have been misapprehended. Surely, in view of these circumstances, he was not justified in going back to the fibroid machine, and upon the ladder from which he had been ordered as soon as he was discovered by the foreman. In doing so he was not only a volunteer, but a disobedient servant, who perversely disregarded the orders of his superior.

The trial court was clearly correct in directing the verdict, and its judgment must be, and it is, affirmed.

COX v. CLINE et al. (Supreme Court of Iowa. July 9, 1908.) 1. BILLS AND NOTES-BONA FIDE PURCHASER -INSTRUCTION-BURDEN OF PROOF.

In an action by an indorsee of a note, an instruction that the burden was on plaintiff to establish that he was the owner of the note, that he acquired it in the ordinary course of business before maturity, and, should the jury so find after a careful consideration of all the evidence in the case, they should find for plaintiff, unless they found that defendants had shown by a preponderance of the evidence that the note was secured by fraud, and that plain