(186 N.W.)

edge or observation just when or just how | box. Therefore if the boilers be destroyed the cracking or fracturing of the boiler oc- by an explosion, rupture, or collapse the decurred. The open "blow-off" valve was not discovered until an hour or two after the alarm had been given and after numerous persons had visited the boiler room. No one is able to say, except as a matter of opinion, that the valve was opened before the loss occurred. An expert witness examined it the following morning and gives it as his opinion that there "was water in the lower portions of the boiler at the beginning of the trouble." There is evidence, too, that boilers will and often do crack even when filled with water; that they are often produced by expansion and contraction of the metal, and may sometimes be caused by scales or deposits in the interior of the boiler. The defendant's expert witness says:

"There are different things which will cause a boiler to crack. It is mostly when the boiler is hot and you open up the feed valve and let cold water into the boiler. That will crack a boiler quicker than anything else. That is a matter of uneven expansion."

[1] That cast iron will at times crack from a variety of causes as well as from causes which are not readily apparent or discoverable is a matter of common knowledge and observation, and we are not ready to hold that even the most competent expert witness testifying only from a "post mortem" examination of a given crack or fracture and giving his opinion as to its origin or cause will establish the cause as a matter of law.

fendant would not be liable for a dollar because the policy provides against liability for loss "caused directly or indirectly by fire." Surely such was not the intention of the parties to the contract. It must be presumed that the defendant was insuring plaintiff against a risk of some kind. When we stop to consider the nature of the business which defendant was organized to transact, the force and effect of the exception of liability for loss or damage due to fire are reasonably apparent. The company was not doing a business of fire insurance, and we may assume that had it undertaken to issue a fire insurance policy, it would have been ultra vires and void. Its policy bears the caption "Steam Boiler Excess and Multiple Policy," and is evidently intended to be understood to provide insurance against the risks to which steam boilers are peculiarly subject. To the apprehension of the average person those risks are precisely those of which we have spoken and are enumerated in the contract; explosion, rupture, collapse, cracking, and fracture. Without furnace fire to heat the water and produce steam, the boilers could not be utilized for the purposes for which they are designed and the entire outfit would be simply a mass of inert and dead material exposed to no risk and needing no insurance unless perhaps it be against the burning of the building which houses it, a kind of insurance which this company could not furnish.

The policy as a whole makes it perfectly clear that it insured this boiler with the knowledge and understanding that it was one in actual and practical use for its designed purpose, the furnishing of heat to the plaintiff's office building; and that in the provision declaring the insurer "not liable for any loss or damage due to fire, or if the explosion, rupture or collapse is caused directly or indirectly by fire" the word "fire," as used in that clause, has no reference to fire under the boiler and without which it could not be operated or used, but rather to what (for the want of a better word) we may call a "hostile fire," thus emphasizing to the policy holder the fact that the insurer assumes no risk of fire hazard from any outside source. If, for example, the plaintiff's office building were burned down carrying with it to destruction the heating apparatus in the furnace room, there would be no liability under this policy; but it savors of absurdity to say that

[2] But even if we assume the absolute correctness of the witness and accept his judgment that this cracking and fracturing. were a matter of uneven expansion of the iron, does it follow that a loss so occurring is not covered by the policy? Defendant contends that it is not, because of the provision of the policy already quoted, which excepts "loss or damage due to fire." The argument reduced to simple English terms is that if the boiler was cracked, the crack was occasioned by the uneven expansion of the iron; the expansion of the iron was occasioned by heat; the heat was occasioned by fire, and because of this chain of cause and effect the resulting loss and damage must be held as a matter of law "due to fire" within the meaning of the contract. With this contention we cannot agree. In the first place, the argument so advanced carried to its logical result would render the entire contract of not the slightest protection to the insured. It professes, for example, to insure the policy holder against loss or damage to its boil-like immunity is reserved where the risk exers by explosion, rupture, or collapse caused by pressure of their contents. Now such pressure (aside from the mere weight of the water in a boiler) is caused by the expansive energy of steam; steam is produced by the action of heat upon the water; and heat is produced by fire in the furnace or fire

pressly insured against necessarily implies the use of fire in the furnace. The exception made in the policy is in the nature of a notice or warning to the property owner that the company is not assuring the risk of ordinary fire hazard, but confines its liability to those risks which pertain directly and im

(186 N.W.)

Sager & Sweet, of Waverly, for appellant. is exclusively the subject of the contract or not, Mears & Lovejoy, of Waterloo, for appellees.

FAVILLE, J. The appellee Charles Blume is a tenant of his coappellees and has no interest in this case, except as such tenant. The appellees H. H. Tietje and Sophie Tietje are husband and wife, and will be referred to in this opinion as though they were the sole appellees.

Prior to the 24th of June, 1919, the said appellees were the owners of a farm of 100 acres in Bremer county, Iowa, which, at said time, they occupied as a homestead. On said date the appellee H. H. Tietje entered into a written contract with the appellant by which he agreed to sell the said farm to the appellant and deliver possession thereof on March 1, 1920, for the agreed price of $20,250, of which sum $500 was paid at the time of the making of said contract, and the contract provided for other payments to be made, aggregating $4,500, and for the execution of a mortgage for the remainder of the purchase price. The appellees refusing to convey said premises under said contract executed by the husband, H. H. Tietje, or to surrender possession, the plaintiff commenced this action on March 10, 1920, tendering performance of the contract on his part, and demanding specific performance on the part of the appellees. The appellees by separate answers allege that 40 acres of the land described in the alleged contract executed by the husband constitutes the homestead of said parties, and that the alleged contract set forth in the petition is void as to said homestead. The appellant, by reply, alleges certain matters and things pertaining to the conduct of the said Sophie Tietje in respect to the said sale of said premises, which appellant claims estop the said Sophie Tietje from claiming or asserting that said written contract was not binding upon her. The court entered a decree denying specific performance and directing the repayment to the appellant of the cash payment of $500, with interest, and the surrender of a note exe cuted by appellant as part of the purchase price of said premises. Appellant does not ask that the contract be enforced as to the tract outside the homestead. He desires that it be enforced in its entirety, or not at all.

[1, 2] In its last analysis, this appeal involves a single proposition, and that is whether or not the appellee Sophie, by her acts and conduct, is estopped from claiming that she is not bound by the written contract to join in a conveyance of the homestead. Code 2974, is as follows:

"No conveyance or incumbrance of or contract to convey or incumber the homestead, if the owner is married, is valid, unless the husband and wife join in the execution of the same joint instrument, whether the homestead

but such contracts may be enforced as to real estate other than the homestead at the option of the purchaser or incumbrancer."

This statutory provision has been the subJect of frequent consideration by this court. As far back as Sharp v. Bailey, 14 Iowa, 387, 81 Am. Dec. 489, we said:

"It must be borne in mind that this homestead right is peculiarly favored, and that, as a general rule, there can be no operative conveyance or an effectual release of the exemption unless the mode pointed out by the statute is pursued with reasonable strictness."

This rule has been repeatedly recognized. Clay v. Richardson, 59 Iowa, 483, 13 N. W. 644; Barnett v. Mendenhall, 42 Iowa, 296; Lunt v. Neeley, 67 Iowa, 97, 24 N. W. 739; Cowgell v. Warrington, 66 Iowa, 666, 24 N. W. 266; Alvis v. Alvis, 123 Iowa, 546, 99 N. W. 166; Wilson v. Christopherson, 53 Iowa, 481, 5 N. W. 687; Townsend v. Blanchard, 117 Iowa, 36, 90 N. W. 519; Hostetler v. Eddy, 128 Iowa, 401, 104 N. W. 485; Wheelock v. Countryman, 133 Iowa, 289, 110 N. W. 598.

The appellant contends, however, that the instant case presents an exception to the rule that a contract for the conveyance of a homestead must be signed by the wife, because of the claim that by her conduct the wife is bound by the contract entered into by the husband as much as though she had signed the same, on the theory that her acts and conduct estop her from now refusing to join in a conveyance of the homestead in pursuance to the terms of the contract executed by the husband. The acts relied upon have to do with the conduct of the appellee Sophie at or about the time of the execution of the contract by her husband. It appears from the testimony that the appellee H. H. Tietje and his wife decided to leave the farm in question and move to the village of Sumner, Iowa, for the purpose of educating their children, and, with her knowledge, the farm was listed for sale with a real estate agent in Sumner, who secured a prospective purchaser. the appellant as The appellant, with his father and their wives, inspected the premises in question, and the appellee Sophie showed the parties through the house, barn, hoghouse, and other buildings. She knew at the time that they were looking at the premises with a Afterwards the view to buying the same. appellant went to the farm with the real estate agent, and there were some negotiations between the appellant and the appellee H. H. Tietje concerning the price for the farm. It appears that the appellant was offering $200 per acre for the farm, and the appellee H. H. Tietje wanted $205. There was some discussion in regard to a washing machine and engine on the place, and a sug

In Anderson v. Culbert, 55 Iowa, 233, 7 N. W. 508, we said:

gestion made that, if these were included in we should nullify an express provision of the the sale, the price might be adjusted at statute." $202.50. It is claimed that this matter was submitted to the appellee Sophie, and that she then told her husband to sell the farm. The wife was not present when the contract was signed, and the terms thereof were 'made without her knowledge. After the contract was entered into, the appellees left the farm the following December, and moved to town into a rented house. The appellant, after entering into the contract, sold the land on contract to one Schroeder, who in turn assigned the contract to one Meswarb, who later assigned it to one Geistfeld.

There is evidence in the record of statements made by the appellee Sophie to the effect that the appellees had sold the farm and that they were going to move to town to live. There is also evidence to the effect that the appellee Sophie knew that the subsequent purchaser, Geistfeld, went upon the farm and performed work thereon in the way of plowing (and hauling manure; but this was before the time when possession was to be given under the contract. There is a dispute in the evidence as to whether the appellee told her husband to sell the farm at the time of the talk about the washing machine and engine, or whether she said that she did not care if these things were thrown in. The appellee Sophie claims she told her husband, the next morning after the contract was signed, that she would not convey the land; but she did not advise the appellant of such intention on her part until some time later and after he had assigned his contract. We have not attempted to set out all of the evidence bearing on the question of what the appellee Sophie said and did; but, in a general way, the foregoing is

the substance of it.

Our statutes, with reference to homestead rights, have always been most zealously guarded by the courts. Questions involving homestead rights are of frequent occurrence, where the question arises on execution sale, on incumbrances, on actions growing out of contracts, as well as under the laws of de scent; but, under whatever circumstances the questions arise, the uniform tendency of all courts is to uphold and protect the homestead right, where such right has once attached, unless the right has clearly been lost by abandonment, contract, or otherwise. Bearing on the question of estoppel of the wife, who did not sign the contract, but assented to the sale, in Stinson v. Richardson, 44 Iowa, 373, we declared:

"It is contended that the plaintiff assented to, and even advised, the sale, and that she is now

estopped from setting up her homestead rights in the property, if she ever had any; but if we should hold that she relinquished her homestead rights by verbally consenting to the assignment, or estopped herself by such consent,

"The plaintiff, however, contends that the contract to convey it is not void for the want of the signature of the defendant's wife. He relies upon evidence tending to show that she But this is insufficient. had knowledge of the trade and encouraged it. Even an agreement upon her part would not bind her, unless it was a written agreement executed jointly by her and her husband."

In Donner v. Redenbaugh, 61 Iowa, 269. 16 N. W. 127, referring to the failure of the wife to join in a contract for the sale of the homestead, we said:

"But it is well stated that her verbal assent did not make her a party to it. * The contract, then, so far as the homestead is concerned, is void."

It is the contention of the appellant that we have deviated from this rule in more recent cases, and have recognized the rule that a contract for the conveyance of the homestead, which contract is not signed by the wife, may be specifically enforced against her by the application of the doctrine of equitable estoppel. Reliance is placed upon our holding in the case of Townsend v. Woodworth, 185 Iowa, 99, 169 N. W. 752. That was an action to reform a deed and quiet title to certain premises. It appeared therefrom that one Krueger was the owner of two lots, which were occupied as a homestead. He entered into a written contract to convey to the plaintiff the west 66 feet of these lots, and thereafter, in fulfillment of said contract, he and his wife executed and delivered to the plaintiff a deed, which did not follow the language of the contract, and conveyed about 3 feet 6 inches less land than was described in the contract. The remaining portion of the lots the said grantors afterwards conveyed to another party. The action was brought to reform the deed, and to make it conform to the contract and to quiet title to said west 66 feet. It appeared that all of the parties supposed, at the time the deed was made, that it conveyed the exact property described in the contract. After the deed was made, the Kruegers abana homestead and doned the property as moved away. The wife had joined in the conveyances of each of the lots, and no longer occupied either. She had abandoned any right to claim a homestead in the strip in controversy when she made her deed. There was no doubt that she understood, when she joined in the deed, that it was intended to convey the strip in controversy. We held that the deed should be reformed as prayed, and that she was estopped to claim that the vendee in the deed was not entitled to have the deed reformed, so as to express the true

(186 N.W.)

intent of all of the parties at the time the deal was consummated. It clearly appeared that, soon after making the contract, and before the deed was made, the parties abandoned the premises and surrendered all homestead rights, and at the time the deed was made the wife had no homestead right whatever in the property, and that the deed was executed with the intent on the part of the wife to convey the property in dispute. The case is not determinative of the instant case.

Appellant also relies upon Engholm v. Ekrem, 18 N. D. 185, 119 N. W. 35, which case is cited by us in the Townsend Case, supra. This case arose under the statute of frauds of the state of North Dakota. There was a verbal agreement for the sale of certain lots, which was followed by delivery of possession to the grantee, who, with the full knowledge of the wife, and with her tacit consent and acquiescence, made valuable improvements thereon and paid a portion of the purchase price, and the court held that the doctrine of estoppel was applicable to the facts as found to exist to prevent the perpetration of a fraud.

The appellant places great reliance on the case of Grice v. Woodworth, 10 Idaho, 459, 80 Pac. 912, 69 L. R. A. 584, 109 Am. St. Rep. 214. The case was decided by a divided court. The agreement for the transfer of the homestead was verbal, was assented to by both husband and wife, and was followed by a change of possession, the placing of permanent improvements thereon, and payment of the purchase price, all with the knowledge and acquiescence of the vendor and his wife. The court held that these acts operated to transfer the equitable title to the appellant, and applied the doctrine of estoppel.

ises, or the fact that she has knowledge or consents that certain personal property is to be sold by her husband in the bargain for the place, are sufficient to estop her from claiming that a contract made by her husband, without her signature or consent to its terms, agreeing to convey the homestead, is not binding upon her. The plain language, purpose, and intent of our statute cannot be overthrown by such a showing as was made in the instant case. The appellant knew that the premises were occupied by the appellees as a homestead, and he was presumably familiar with the statute, réquiring that husband and wife must join in the execution of the same joint instrument to convey the same. The fact that the wife conducted the appellant over the premises, or even consented to the sale of personal property, or knew that appellant was buying the farm, is scarcely sufficient to justify the conclusion that the appellant relied thereon as binding the appellee Sophie to join in a conveyance of the homestead, or to estop her from insisting upon the rights guaranteed her by the statute. There is no claim of any agreement on her part to sign the written contract.

The decree of the lower court meets with our approval, and it is in all respects affirmed.

STEVENS, C. J., and EVANS and ARTHUR, JJ., concur.

ENGLE v. ENGLE. (No. 34426.)

(Supreme Court of Iowa. March 14, 1922.)

Appeal from District Court, Polk County; J. C. Hume, Judge.

Action for divorce. Decree for plaintiff as prayed, and the defendant appeals. Affirmed. Stewart & Hextell, of Des Moines, for appellant.

Fred T. Van Liew, of Des Moines, for appellee.

It may be true that a wife may, by her acts and conduct, be estopped to claim the benefit of this statute under certain conditions. In the instant case, however, in any event, we do not think the evidence is sufficient to constitute an estoppel against the appellee Sophie. The premises were not abandoned, and there was no surrender made thereof to the appellant. But a small portion of the purchase price had been paid. There is no proof that the appellee Sophie knew, or in any manner acquiesced in, the terms and conditions of the contract with regard to the deferred payments or other matters therein contained. No improve ments were made on the premises by the appellant. The matters and things relied upon in the cited cases, as constituting an estop-parent sincere efforts at reformation. Both pel, are largely entirely absent in the instant

PER CURIAM. The parties were married in 1902 and have, as the issue of such marriage, The petition a daughter 17 years of age. is much in the proof of crimination and recrimcharges cruel and inhuman treatment. There ination. The life of each has been at times somewhat reckless and without due regard to their marriage vows. There have been reconciliations, condonations, and periods of ap

at one time joined the church, doubtless with the hope of living together and properly rearing and educating their daughter. Others in

terfered, and for a few months before the petition was filed the conduct of the defendant has been such as to justify the decree entered in the court below.

It is urged by appellant that the evidence is