But it is urged that title did not pass to complainant by means of these conveyances, because Barkman had in November, 1861, executed a deed of the land, with covenants of warranty, to Henry C. Brewster; and that although he had not then any title upon which this deed could operate, yet, when he subsequently acquired title from the county, in 1874, it at once inured to the benefit of Brewster and his grantees. As already stated, when the county, in 1861, deeded the land to Barkman, it had no right or authority to convey the same by reason of the restrictions in the act of 1855, and Barkman and his grantees knew, or were bound to know, that the county had no right to then sell or convey these lands. Moreover, it is shown in the record that in 1871 a suit was brought in the district court of Dickinson county, in favor of the county against Henry Barkman and others, for the purpose of canceling and setting aside the conveyances of the swamp lands previously made to defendants, and the contracts upon which the same were based, upon the grounds that the same were unauthorized, fraudulent and void; and at the October term, 1871, of said court, a decree, as prayed for, was entered in said cause. It is thus clearly shown that when Barkman executed his deed to Brewster, in 1861, of the lands in dispute, he had no title therein, and for reasons which Brewster was bound to take notice of. The latter knew that the deed from the county to Barkman was wholly void, and that the lands belonged to the county. Under such circumstances, without any proof that Brewster paid anything for the land to Barkman, does it follow that a court of equity is bound to hold that when, 13 years after, the county conveyed the lands by a good title to Barkman, the title thus acquired at once inured to Brewster?

It does not appear that Brewster or his grantees ever claimed any interest in the lands, and it certainly would be going to an extreme length to hold that when Barkman, in 1874, procured the title of these lands from the county, his title at once passed to Brewster by reason of the deed executed in 1861, although the latter made no claim to the land. under such deed. All that can be claimed is that perhaps, if Brewster or his grantees had asserted a right to the land, they might have sustained the same; but such possibility should not be held sufficient to overcome the evidence of direct title offered on behalf of complainant, and to defeat his right to redeem. Certainly complainant has a good title, unless a claim should be asserted under the conveyance to Brewster. Even if complainant had not procured the quitclaim from Sigley, there is nothing to show that any adverse claim would ever have been made by Sigley to the land; so that it cannot be held that complainant and his grantees did not have sufficient interest to entitle him to redeem.

Sufficient title and ownership in the land to entitle him to be heard. upon the question of the right of redemption having then been shown in complainant, we are brought to the consideration of the effect of a decree rendered in the case of Van Steenberg v. Nichols and Sigley, brought to the September term, 1880, of the district court of Dickinson county, for the purpose of quieting the title of complainant in the land in question. The defendant Nichols was a non-resident of the state of Iowa, and the

only service of notice had was by publication under the statute of Iowa. The action was a personal one. The decree seeks to bind the parties, not through jurisdiction of the land, and a sale thereof in any form, but by enjoining and estopping the defendants from asserting any right or title to the land. As the defendant Nichols did not appear to the action, and was not served with notice other than by publication, and as the decree is personal in its character, it comes within the rule announced in Hart v. Sansom, 110 U. S. 151, 3 Sup. Ct. Rep. 586, and does not bar the right of Nichols or her grantees to be heard in this court, the same as though such decree had not been rendered.

The sale for taxes under which defendant claims title was made in Section 894 of the Code of Iowa provides that, after the expiration of two years and nine months from date of sale, the holder of the certificate of sale shall give notice of the expiration of the period of redemption; that, in case of non-residents of the county, service of such notice may be made by publication; that service of such notice shall be deemed to be complete when an affidavit of such service, and of the mode thereof, verified by the holder of the certificate of sale, his agent or attorney, is filed with the treasurer; and the right to redeem shall not expire until 90 days after service of such notice. As construed by the supreme court of Iowa, the 90 days allowed for redemption under this section of the statute does not begin to run until proper evidence of service of notice is filed with the treasurer, and an affidavit of publication by the publisher of a newspaper is held net sufficient evidence of service, as the section expressly requires the affidavit to be made by the holder of the certificate of sale, his agent or attorney. American Missionary Ass'n v. Smith, 59 Iowa, 704, 13 N. W. Rep. 849; Ellsworth v. Van Ort, 25 N. W. Rep. 142.

It is admitted in this case that the only proof of the service of notice to redeem, filed with the treasurer of the county in 1879, when the deed of that date was issued, was an affidavit by the publisher of the Beacon newspaper. The treasurer was not authorized to execute the deed, and the right to redeem was not terminated by the issuance thereof. The petition in the present case was filed in August, 1883, before the expiration of five years from the delivery of the deed, and before the period of 90 days had been set to running against complainant.

The fact that in January, 1884, the defendant filed with the treasurer an affidavit in due form, showing completed service of the notice to redeem, and in April, 1884, obtained a second treasurer's deed, cannot avail him as a defense. He then knew that complainant was claiming the right to redeem, and had brought an action to establish such right, and stood ready to pay whatever sum was needed to perfect redemption. Before the suit was brought, the complainant's agent and attorney had called on defendant, and offered to redeem the land, being prepared to make a formal tender; but the defendant refused to allow redemption, or to state the amount he claimed to be due, saying he would not allow redemption unless the courts compelled it, etc. Complainant had also, before bringing suit, made a tender to the auditor of the county, who

refused to receive the same, and denied that the right to redeem existed. Complainant has deposited with the clerk of the courts the amount tendered, and certainly, under these circumstances, it cannot be said that defendant is entitled to hold the land under the second deed, because the same had not been redeemed. Defendant denied complainant's right to redeem, and compelled him to resort to a suit in equity to establish and enforce such right; and, as a defendant to such suit, he is even now resisting complainant's claim to the right of redemption.

He cannot now be permitted to take advantage of the fact that he has procured a second deed from the treasurer under the circumstances disclosed in the evidence. The amount deposited with the clerk by complainant is, as I understand the record, the sum of $98.20, which is sufficient to cover the amount for taxes, penalties, etc. Decree therefore is ordered for complainant, the defendant being entitled to the money on deposit; and the total costs, both in state and federal courts, will be equally divided, each party paying one-half.

SOUTH BEND IRON WORKS v. COTTRELL and others. (WARDER and others, Intervenors.)

(Circuit Court, N. D. Iowa, W. D. May Term, 1887.)

1. CONDITIONAL SALE-MACHINE CONTRACT-PRINCIPAL AND AGENT-GARNISHMENT.

A contract creating an agency for the sale of agricultural machines provided that all unsold machines were to be purchased by the agent at the expiration of the contract, and that they were to remain the property of the principal until paid for according to the terms of the agreement. Held, that such unsold machines, and the proceeds of machines sold to third parties, were not subject to garnishment in the hands of a subagent for the individual indebtedness of the agent.

2. CONSTRUCTION OF CONTRACT-USAGES OF TRADE-EVIDENCE.

Said contract provided that such unsold machines were to be paid for in stipulated installments, during the years 1883 and 1884, and contained a marginal modification to the effect that the principal agreed "to carry over all machines left unsold at the end of the season of 1883. " Held, that such modification was standing alone, somewhat equivocal and obscure, and that resort might be had in such instance to the well-defined and known usages of the trade as an aid in reaching a true interpretation of the contract.

3. PRINCIPAL AND AGENT-OWNERSHIP OF NOTES-WAIVER OF VARIANCE.

Said contract further provided that the agent in selling the machines should take notes for the deferred payments upon blanks furnished by the principal containing certain provisions and stipulations. Held, that notes taken on other blanks, and of a different form, payable in some instances to the order of the agent, did not defeat the right of the principal to waive objection to the variance in form, and to maintain his ownership in the notes so long as the rights of innocent purchasers for value were not involved.

4. CONDITIONAL SALE-SECTION 1922, CODE IOWA-GARNISHMENT.

Section 1922, Code Iowa, provides that "no sale, contract, or lease, wherein the transfer of title or ownership of personal property is made to depend upon any condition, shall be valid against any creditor or purchaser of the vendee or lessee in actual possession obtained in pursuance thereof without notice,

unless the same be in writing, executed by the vendor or lessor, acknowledged and recorded the same as chattel mortgages." Held, that this section did not apply to the above contract in garnishment proceedings, where the property in dispute was in the possession of a subagent; the plaintiff in such case being neither a "creditor nor a purchaser," within the meaning of the statute, of or from said subagent.

At Law.

Demurrer to amended petition on behalf of intervenors.

S. M. Marsh, for plaintiff.

C. R. Marks, for intervenors.

SHIRAS, J. The firm of Cottrell Bros. & Miller was, in the year 1883, engaged in the business of selling agricultural implements at Sioux City and Le Mars, Iowa, and on the third day of January of that year a written contract was entered into with the firm of Warder, Bushnell & Glessner, whereby the former named firm was appointed agent for the latter, for the sale of the Champion reapers, mowers, and binders; it being agreed that Cottrell Bros. & Miller should guaranty the sale of all machines forwarded under the agreement; and that, in case the machines were not all sold during the continuance of the contract, then the said Cottrell Bros. & Miller were to make payment for such unsold machines, either in notes of responsible farmers, properly guarantied, or in other valuable consideration, at the option of said Warder, Bushnell & Glessner; the machines to remain the property of the latter until paid for; one-third of the price thereof to come due October 1, 1883, one-third January 1, 1884, and one-third on or before October 1, 1884. Upon the margin of the contract is entered the following modification: "It is further agreed between the parties that said Warder, Bushnell & Glessner agree to carry over all machines left unsold at the end of the season of 1883."

In the spring of 1883, Cottrell Bros. & Miller arranged to furnish machinery to Jacob Koolbeck, of Hospers, Iowa, to be by him resold and accounted for; and under this arrangement certain of the machines manufactured and furnished to Cottrell Bros. & Miller by Warder, Bushnell & Glessner were placed in the hands of Koolbeck, and part thereof was sold by him. Cottrell Bros. & Miller failed in business, and in August, 1883, suit was brought by the South Bend Iron Works, on a debt due, and a writ of garnishment was served upon Koolbeck, and his answer taken and filed in the cause. Thereupon Warder, Bushnell & Glessner intervened in the cause, setting up their rights under their contract, and claiming that the machines in hands of the garnishees, and the proceeds of those sold by him, belonged to them, and were not in any sense the property of Cottrell Bros. & Miller.

In the amended petition, filed by the intervenors, it is averred that, in the business of manufacturing and selling agricultural implements, the expression used in the modification entered upon the margin of the contract, as above stated, to-wit, "to carry over all machinery left unsold at the end of the season," has a well-defined and understood meaning, to the effect that the consignors were not to exact or demand payment or

settlement for machines unsold at the end of the season named in the contract, but that said machines were to be charged back to the consignors as their property; and that this construction of such phrase was well understood at Sioux City and Le Mars, and was well known to both Cottrell Bros. & Miller and Warder, Bushnell & Glessner, and had been recognized and acted upon in previous dealings between the parties, and that, in fact, such was the meaning intended to be given to such phrase by both contracting parties, when the same was made part of the contract.

One question presented by the demurrer to the amended petition is whether, in construing the contract, the court can consider the meaning which it is averred custom and usage has thus given to this phrase. If in any business or trade, by well-known and established usage, certain terms or phrases have acquired a well-defined meaning, the presumption is that, when used in a contract between parties engaged in such trade or business, and cognizant of such meaning, the parties intended such to be the construction thereof. Where the language used in a contract is plain, and its meaning free from obscurity, proof of custom or usage, in contradiction thereof, is not admissible; but the language used in this contract, standing alone, is certainly somewhat equivocal and obscure; and in such case resort may be had to the well-defined and known usages of the trade, as an aid in reaching a true interpretation of the contract between the parties.

The pivotal question between the contending parties is whether the machines, and proceeds of those sold in the hands of the garnishee, remain the property of the intervenors, or has the title thereto passed to Cottrell Bros. & Miller? The plaintiff does not stand in the position of an innocent purchaser for value, but claims to be entitled to the protection of section 1922 of the Code of Iowa, which declares that "no sale, contract, or lease, wherein the transfer of title or ownership of personal property is made to depend upon any condition, shall be valid against any creditor or purchaser of the vendee or lessee in actual possession, obtained in pursuance thereof without notice, unless the same be in writing, executed by the vendor or lessor, acknowledged and recorded the same as chattel mortgages."

The property in dispute was and is in possession of Koolbeck, and plaintiff is neither a creditor of, nor a purchaser from, him; and this statute, therefore, has no application to the case. By service of the writ of garnishment on Koolbeck, the plaintiff reached in his hands the property, if any, of Cottrell Bros. & Miller, and therefore, as already stated, the pivotal point is the question of title in the machines, and proceeds of those sold in hands of the garnishee. Without citing the various provisions of the contract under which the property was delivered by the intervenors to Cottrell Bros. & Miller, it is sufficient to state, in brief, that it declares that the latter firm is appointed agent for the intervenors; that the machines delivered remain the property of intervenors until paid for; that the intervenors agree to carry over all machines remaining unsold at end of the season of 1883, etc. As between the immediate