parents, appellant was desirous of realizing by sale or mortgage upon the property devised to him by his father's will. It is very probable that neither Frank nor Charles at this time fully understood that their titles to their respective lots were not wholly derived from their father's will, or that either had any share in the title to the lot devised to the other, and, when the agent who negotiated the loan required a quitclaim from Charles to Frank before closing the loan to the latter, it may be doubted whether they fully comprehended the reason for the de mand. But it is shown with reasonable degree of certainty that they did understand that the estate of their deceased parents was not yet fully settled, and that a settlement of their respective rights in the property was desirable to avoid any future trouble or conflict of interests. We shall not detail the evidence bearing upon the question, but will say that it fairly well supports the conclusion of the trial court that appellant did accept the conveyance from Charles as in full satisfaction of all his claims upon the property left by their deceased parents. They may not have fully understood just what right each held in the property devised to the other, but that they intended a mutual release or waiver is fully established. It is conceivable that Charles should have released without consideration a one-sixth interest in the lot held by Frank, and at the same time permit the latter to retain a like interest in the Lomestead property held by himself without request or demand for a release thereof. Even if both were ignorant of the true situation in this respect, a court of equity would be very slow to allow the appellant to thus secure his own portion, free from the claim of his brother, and at the same time insist upon a share in the portion of the latter. He should not be permitted to profit by his discovery of their common mistake of law and fact, to the injury of the brother, who was procured to relinquish a valuable right. He who asks equity should show his willingness to deal equitably. Baker v. Massey, 50 Iowa, 103.

We are satisfied that the decree of the trial court effects substantial justice, and it is affirmed.

HARRIS v. MOORE.

CHAL

(Supreme Court of Iowa. June 6, 1907.) 1. JURY COMPETENCY OF JURORS LENGE FOR CAUSE-GROUNDS-SUFFICIENCY. Where a juror on his voir dire showed that he could speak and read the English language, and that his ability to write the same was confined to common words, a challenge for cause, without specifying the grounds, sufficiently showed that it was based on his inability to write the English language, and did not possess one of the qualifications prescribed by Code, § 332.

[Ed. Note. For cases in point, see Cent. Dig. vol. 31, Jury, § 559.]

2. APPEAL-REVIEW-OVERRULING CHALLENGES FOR CAUSE-PREJUDICIAL ERROR.

Where it is not shown that a party had exhausted his peremptory challenges, the overruling of a challenge of a juror for cause is not prejudicial.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §.4126.]

3. JURY CHALLENGE FOR CAUSE DISCRETION OF COURT.

Where a juror on his voir dire showed that he could speak and read the English language, and that his ability to write it was limited to the common words, the court did not abuse its discretion in overruling a challenge for cause, based on the inability of the juror to write the English language, prescribed by Code, § 332, as a qualification for a juror.

4. BROKERS-ACTIONS FOR COMMISSIONS-RECOVERY-PROOF.

One sued by a broker for commissions for the sale of real estate may, under a general denial, not only offer testimony in denial of the contract as claimed by the broker, but also in support of the contract which was made, and nonperformance thereof on the broker's part. 5. SAME.

A broker employed to procure a purchaser of real estate, under a contract which does not specify the time for the performance of the contract, must, in an action for his commissions, prove that he performed it within a reasonable time.

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

Suit at law to recover a commission for the sale of real estate. There was a trial to a jury, and a verdict and judgment for defendant, from which the plaintiff appeals. Affirmed.

Frederick M. Curtiss and George E. Clarke, for appellant. Sullivan & McMahon and E. A. Morling, for appellee.

SHERWIN, J. But two questions are raised on this appeal. The first relates to the qualifications of one of the jurors who was challenged for cause, and the other to an instruction given by the court on its own motion. Code, § 332, provides that only such persons are competent as jurors who can speak, write, and read the English language. In the examination of the juror John Deeg, it was developed that, while he could both speak and read the English language, he was not proficient in the other qualification. The net result of his examination disclosed the fact that he could write English some, but not very readily, and that his writing thereof was confined to the common words. His answer to one question was: "I can write it, but I cannot write it very well." The challenge was for cause generally without specifying the particular ground thereof and the appellee contends that the challenge was in itself insufficient to require a ruling from the court. That such is the general rule there is no question; but, while there was no specific ground of challenge in this instance, the examination of the juror clearly disclosed that the challenge was based on his lack of ability to write the English language, and this we

ministrator to sell all of the real estate of said decedent. In July, 1904, the administrator filed his report showing a sale of the land to the defendant, Ira White, and on the same day the district court approved said sale and ordered a conveyance of said premises to be made to the purchaser. The conveyance was thereafter executed and approved by the court, and a complete record thereof made. No notice of any kind of the application to sell the real estate was given to the plaintiff, and it is upon the failure to give such notice that he bases his contention that the order of sale was a nullity as to him. This action was thereafter commenced; the plaintiff filing a petition in two counts, the first count of which it is unnecessary to more particularly notice. The second count of the petition recognizes the administrator's sale and the claims against the estate, and the pro rata share thereof with which McGurk's interest was burdened, and asked that a special execution issue against the interest of McGurk in the real estate subject to his share of the charge against the entire estate, and that his judgment be declared a lien superior to the title of the defendant. This relief was granted; the court finding that McGurk's onesixth interest in the estate was subject to a charge thereon amounting to $452.60, said amount being a pro rata share of the debts and charges against said one-sixth interest. The appellants contend that, although no notice of the application to sell was given to the plaintiff herein, he cannot assail the order in this action, that the court had jurisdiction to order the sale notwithstanding the lack of notice to the plaintiff, and that the plaintiff's only remedy was by a direct attack upon the order of sale.

Before

Code, § 3324, provides as follows: any order for the sale of an intestate's land for the payment of debts can be made, "all persons interested in such real estate shall be served with notice in the same manner as is prescribed for the commencement of civil actions, unless a different one is prescribed by the court or judge." That the appellee was an interested party in reference to the administrator's sale of the real estate we do not think can be successfully disputed; in fact, the appellants do not claim that he was not such an interested party as the statute refers to. His attachment had been levied upon the real estate in Keokuk county, and such levy had not been released or in any way affected thereafter. Being entitled to notice under the statute, and no notice of any kind having been given him, we think it clear under the decisions of this court that the lien of his attachment and judgment was never displaced by the title acquired by the defendants, and that he may properly assail said order in this collateral action. The question presented involves the power of the court to make an order or render a judgment displacing his lien without notice of any kind to him, and, if the court had no jurisdiction

to make the order, it may be attacked in a collateral proceeding. Good v. Norley, 28 Iowa, 188; Valley National Bank v. Crosby, 108 Iowa, 651, 79 N. W. 383, Rankin v. Miller, 43 Iowa, 1; Washburn v. Carmichael, 32 Iowa, 475. And see, also, Thornton v. Mulquinne, 12 Iowa, 554, 79 Am. Dec. 548; Cooper v. Sunderland, 3 Iowa, 129, 66 Am. Dec. 52; Morrow v. Weed, 4 Iowa, 77, 66 Am. Dec. 122; Shawhan v. Loffer, 24 Iowa, 217; Iowa L. & T. Co. v. Holderbaum, 86 Iowa, 1, 52 N. W. 550. In support of their contention, the appellants chiefly rely upon Spurgin v. Bowers, 82 Iowa, 187, 47 N. W. 1029, and at first blush the case appears to be authority for their contention, but a careful analysis of that case shows that it is distinguishable from the the case at bar. There a sale was made without notice, and it was claimed that the entire order should be set aside and the sale itself be declared null and void because of the want of notice. This is made to appear very clearly from the language of the opinion, and the court refused to grant that particular form of relief. The opinion says: "The contention of the appellant is not that the order of sale is inoperative as to the interest he claims, but as to the whole." The court did not determine therein that the sale was inoperative as to his interest, but only that the entire proceedings were not void because of the failure to serve notice on only one of several parties having an interest in the real estate. It is true that some of the reasoning of the opinion lends support to the appellants' convention herein, but its use was not necessary in the disposition of that particular case, and we are not inclined to adopt it as a rule governing this case, when the effect would be to overrule several former decisions of the court. It was determined by this court in Good v. Norley, supra, that a proceeding to sell the real estate of an intestate for the payment of his debts is not in rem, but is adversary; and, if this be true, it must follow that jurisdiction of the person cannot be acquired without some form of notice, and, further, that a necessary party to legal proceedings is entitled to his day in court, and this is true whether the proceeding be in probate or elsewhere. The plaintiff never having been given such an opportunity, his interest in the land in question could not be affected by the order or judgment, and the decree of the district court must be, and it is affirmed.

wholly uncontradicted, the failure to submit the question to the jury was not error.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 46, Trial, § 336.]

2. BANKS AND BANKING-CERTIFICATE OF DEPOSITS ACTIONS-EVIDENCE-ADMISSIBIL

ITY.

Under Negotiable Instruments Act, § 42 (29th Gen. Assem p. 85, c. 130; Code Supp. 1902, § 3060a42), providing that, where an instrument is drawn or indorsed to a person as cashier of a bank, it is deemed prima facie to be payable to the bank of which he is an officer, and may be negotiated by either the indorsement of the bank or the officer, it was competent for plaintiff in an action on a certificate of deposit made payable to S. as cashier of the defendant bank, and indorsed by him as cashier, to show that S. was the cashier of the defendant bank, and was acting in that capacity in transferring the certificate sued on.

3. BILLS AND NOTES-BONA FIDE HOLDERSDEFENSES.

Under the above statute as against plaintiff, a bona fide holder of the certificate without notice, it was not competent for the defendant bank in an action on the certificate to show that S. was making use of his official title and authority in his own individual interest, and hence the bank was not bound by his act. 4. SAME BONA FIDE PURCHASER AND FACTS PUTTING ON INQUIRY.

NOTICE

In a suit on a certificate of deposit, the facts that the certificate bore 8 per cent. interest, and that the bank transferred it, instead of presenting it for payment, both of which cir cumstances it is claimed were unusual, were insufficient to impute notice that the certificate was not negotiated in the regular course of business by the defendant bank.

Appeal from District Court, Winnebago County; Clifford P. Smith, Judge.

Action on certificate of deposit issued by the Clay County Bank of Felton, Minn., to "E. E. Secor, Cashier," and by indorsement of "E. E. Secor, Cashier," transferred to the State Bank of Dows, and by that bank to plaintiff. It is alleged that Secor, to whom as cashier the certificate of deposit was issued, and by whom it was indorsed, was the cashier of the defendant bank, and, acting in that capacity, transferred the instrument to the State Bank of Dows. In the answer of defendant it is admitted that Secor was its cashier at the time of the transaction in question; but it is alleged that the Clay County Bank was a copartnership of which Secor was a partner, and that the certificate was made use of by him for his own personal benefit, and not for the use or benefit of the defendant bank, which received no consideration therefor, and that Secor acted without the knowledge or consent of any officer or agent of the defendant bank and without its authority. It is alleged also that the indorsement by "Secor, Cashier," was wholly by way of accommodation. By general denial the allegations of the petition that plaintiff became holder of the certificate of deposit before maturity for a good consideration and without notice of any defenses were put in issue. At the conclusion of the evidence introduced on the issues thus presented the court directed a verdict for the plaintiff, and

from the judgment on that verdict defendant appeals. Affirmed.

J. A. Brown, for appellant. E. P. Andrews, for appellee.

MCCLAIN, J. The first contention for the appellant is that the question whether plaintiff was a holder of the certificate of deposit in due course that is, a purchaser for value before maturity without notice of any defenses should have been submitted to the jury. But it is conceded that there was sufficient evidence for the plaintiff on this issue to support a verdict, and that this evidence is wholly uncontradicted. The rule in this state seems to be that, where the evidence in favor of the party having the burden of proof on an issue is in no way contradicted or its credibility affected by impeachment, the court may assume the fact relied upon to be proven, and need not submit the question to the jury, for a verdict against such evidence would be set aside. The case of Joy v. Diefendorf, 130 N. Y. 6, 28 N. E. 602, 27 Am. St. Rep. 484, is relied upon for appellant as holding that, where the transferee of a negotiable instrument has the burden of proving bona fides and relies upon his own testimony as a witness in proof of that fact, the question should be submitted to the jury, although his testimony is uncontradicted. This case seems not to be in accordance with the rule in this state above indicated. Furthermore, it is not parallel with the case at bar, for we have in the record, not only the testimony of plaintiff Johnson in support of his bona fides, but the detailed testimony of the officer of the State Bank of Dows through whom the certificate of deposit was sold to the plaintiff. This testimony shows a bona fide transfer before maturity for value and without notice, and the officer testifying as a witness is, so far as the record appears, wholly disinterested. We think that, had the question been submitted to a jury, there could have been no other finding than that plaintiff was a bona fide holder without notice before maturity on good consideration, and therefore in this respect there was no error in directing a verdict.

The next contention is in substance and effect that Secor was, in fact, negotiating the certificate of deposit in his own interest, and not for defendant bank, and it is insisted that, as the name of the defendant bank is not inserted in the instrument as payee, nor placed upon the back of it as indorser, nothing was imported in the transaction involving liability on the part of defendant bank. But it is conceded in the record that Secor at the time the certificate was issued payable to him as cashier, and at the time it was indorsed by him as cashier, was in fact the cashier and managing officer of the defendant bank, and that the certificate was transferred apparently as a part of the business of the bank. In section 42 of the nego

tiable instruments act (29th Gen. Assem. p. 85 c. 130; Code Supp. 1902, § 3060a42), it is provided: "Where an instrument is drawn or indorsed to a person as 'cashier' * of a bank, it is deemed prima facie to be payable to the bank of which he is such officer, and may be negotiated by either the indorsement of the bank,

* or the indorsement of the officer." Under this provision is was competent for the plaintiff to show that Secor was the cashier of the defendant bank, and was acting in that general capacity in transferring the instrument, and as against plaintiff, a bona fide holder without notice, it was not competent for the defendant bank to show that as a matter of fact he was making use of his official title and authority in his own individual interest. Even were this not so, it clearly appears that the State Bank of Dows paid for the certificate of deposit by a Chicago draft payable “to the order of E. E. Secor, Cashier," and that the proceeds of this draft became a part of the funds of the bank. It seems to us that, as against the plaintiff, no further inquiry could be permitted. We must look at the whole transaction with reference to the position of plaintiff, an innocent holder for value. He was not charged with notice of the dealings between "Secor, Cashier," and the defendant bank which he represented, and in whose interest he appeared to act. Under the section of the negotiable instruments act just quoted the relations of the parties were not different from what they would have been had the certificate of deposit been issued to the defendant bank and indorsed in its name by Secor, acting as its cashier.

Some circumstances are relied upon for appellant as proper to have gone to the jury as imputing notice to plaintiff that the certificate of deposit was not negotiated in the regular course of business by the defendant bank. It is said, for instance, that the certificate bears 8 per cent. interest, which is unusual in banking transactions, and that it is also unusual for a bank to transfer a certificate of deposit instead of presenting it for payment. It must be remembered that plaintiff, a holder in good faith for value, is not chargeable with mere inferences which might be drawn from the nature of the transaction. In section 56 of the negotiable instruments act, above referred to, it is provided: “To constitute notice of an infirmity in the instrument or defect in the title of the person negotiating the same, the person to whom it is negotiated must have had actual knowledge of the infirmity or defect, or knowledge of such facts that his action in taking the instrument amounted to bad faith." Certainly the facts relied upon for appellant have no tendency to indicate bad faith. The evidence is conclusive that plaintiff had no knowledge whatever nor suspicion that the instrument was not transferred in perfect good faith, and in the usual course of business

to the State Bank of Dows from which he procured it. There is nothing, therefore, on which a verdict for the defendant on the ground that it was not bound by the act of its cashier in transferring the instrument could have been supported.

The judgment is therefore affirmed.

CITY OF NEWTON v. BOARD OF SUP'RS OF JASPER COUNTY et al.

(Supreme Court of Iowa. June 7, 1907.) 1. HIGHWAYS-ASSESSMENT AND WORK ON HIGHWAYS-STATUTORY PROVISIONS.

Code, § 1530, provides that the board of county supervisors of each county have charge of the collection of the county road fund and the expenditure thereof, but that so much of the fund as arises from property within any city shall be expended on the streets of the city or on the roads adjacent thereto under the direction of the city council. Held, that the part of the road fund collected within a city must be expended on the roads in and about the city as directed by the city council, since the the word "shall," when addressed to public officers, is mandatory.

2. STATUTES-EXPRESSION OF SUBJECT IN TITLE.

The fact that Code, § 1530, entitled "County road fund, how levied and paid out," includes also the streets of cities within the county and provides how the fund shall be expended, does not make it unconstitutional as violating Const. § 29, art. 3, which declares that an act shall embrace but one subject and matters properly connected therewith, which subject shall be expressed in the title.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 44, Statutes, §§ 127, 173, 174.]

Appeal from District Court, Jasper County; B. W. Preston, Judge.

Action of mandamus to compel defendants to expend the balance of the county road fund arising from taxes upon property within the city of Newton upon the roads and streets within said city or the roads adjacent thereto under the direction of the city council. The trial court granted the relief prayed, and defendants appeal. Affirmed.

Henry Silwold, for appellants. H. C. Korf and J. E. Cross, for appellee.

DEEMER, J. Defendants are the board of supervisors and the individual members thereof in and for Jasper county, and plaintiff is a city of the second class within said county. In September of the year 1904 the board levied a tax of one mill on the dollar upon all property in Jasper county, including that within the city of Newton, for the creation of a county road fund. There had been paid to the county treasurer when this action was commenced in taxes upon property within the city of Newton the sum of $972.71. Of this amount there had been expended under the direction of the city council of Newton upon roads and streets therein and upon the highways adjacent thereto the sum of $550, leaving a balance in the hands of the county treasurer of $442.71. The city council de