State v. Whitcomb. the indictment, he would be guilty of adultery and the decree in the court in Floyd county would be no defense." This instruction is complained of as erroneous. We think it correct. The decree of divorce was set aside for the fraud of defendant in procuring it and for want of jurisdiction of the court rendering it. The questions of fraud and want of jurisdiction were adjudicated in the final proceedings which resulted in setting aside the decree for divorce; that adjudication is a verity which cannot be questioned in this case. It declares that the divorce is, and was from the beginning, void. A void judgment has no effect, is nowhere binding, and nothing can be based thereon; it will support no claim of right and give protection for no act. This doctrine is familiar and does not demand the support of authorities. The decree of divorce therefore did not affect the marriage existing between Roana and defendant; that marriage still exists and existed every moment of time from its celebration to the present. It follows that defendant's pretended marriage with Rachel was no marriage, and that his cohabitation with her was adulterous. II. Counsel for defendant argue that the decree of divorce possessed some validity until the affirmance in this court of the decree setting it aside. But it must be remembered that the divorce was void from the beginning, the decree setting it aside did not render it void; its invalidity resulted from fraud of defendant and the want of jurisdiction of the court, and the decree annulling it simply declared its invalidity. Vinsant v. Vinsant, 47 Iowa, 594, cited by counsel, is not applicable to the point under consideration. III. The court rejected evidence offered by defendant to show that he acted in good faith in obtaining the divorce and in marrying Rachel, and that he believed the decree of divorce to be regular and sufficient. The evidence was rightly rejected: The decree of the court setting aside the divorce, as we have said, must be regarded as a verity and conclusive as to defendant. He cannot now question it, and therefore cannot show that for any reason the divorce is valid. If defendant, in good faith, supposed he was legally authorized to marry Rachel, such belief did not have the effect to make valid the proceedings which were void on account of his fraud. His belief as to his rights under the decree had no effect to establish such rights. It has been held that a prisoner's erroneous belief that she had been legally divorced was no defense to an indictment for Fejavary v. Broesch. adultery. State v. Goodenow, 65 Me. 30. this point, Com. v. Elwell, 2 Metc. 190; [Omitting a minor point.] See, also, as bearing upon We reach the conclusion that the proceedings and rulings of the court below are correct. The judgment is therefore affirmed. Judgment affirmed. FEJAVARY V. BROESCH. (52 Iowa, 88.) Exemption from execution -- waived by lien in lease. A provision in a lease that the rent charge shall be a lien on the crops and stock on the leasehold, “whether exempt from execution or not,” is valid as a mortgage of the exempt property. PROCE ROCEEDING to discharge a levy for rent. The defendant leased premises of the plaintiff, covenanting that the rent charges should be a lien on the crops and stock on the premises, "whether exempt from execution or not." The sheriff levied on exempt property. The levy was discharged by the court below. Geo. E. Hubbell and Brannan & Jayne, for appellant. SEEVERS, J. It has been held that the waiver of the benefit of the exemption laws in a promissory note was against public policy and void. Curtis v. O'Brien, 20 Iowa, 376.* Does the case at bar come within the rule established in that case? We think not. In the cited case the contract was executory, and this court refused to enforce it because such a waiver is not recognized by statute and was against public policy. But the statute does recognize the validity of a mortgage on property which is exempt from execution. The validity of such a mortgage has never been doubted. Nor is it material that the property mortgaged was not in existence at the time it was executed. Whatever doubts there may have been on this subject were settled in this State in Scharfenburg v. Bishop, 35 Iowa, 60. The same principle was recognized in Brown v. Allen, id. 306. *Contra, Brown v. Leitch, 60 Ala. 313; s. c., 31 Am. Rep. 42, and note. 44. Technically, it is said, the instrument in this case cannot be regarded as a mortgage, because it does not contain a grant or conveyance of the property. But clearly it creates a lien or equitable charge, and the right of a party to execute it, and its validity, must depend on the same principle as a mortgage. What does it matter what this instrument is called? the subtantial right created is the same as a mortgage. Why may not the one be executed as well as the other? The validity of the lien should be recognized in the one case as in the other. Both may be executed by a party capable of contracting on a sufficient consideration and for a lawful purpose. There is no essential difference between a mortgage and the instrument in question, unless it be in the mode of enforcement; but this does not touch or affect the question of power or validity of either instrument when executed. Such instruments as that in the present case have been upheld in Everman v. Robb, 52 Miss. 653; s. c., 24 Am. Rep. 682; McCaffrey v. Woodin, 65 N. Y. 459; 8. c., 22 Am. Rep. 644, and Butt v. Ellett, 19 Wall. 544. The motion to discharge the property was not based on the ground that the plaintiff had not proceeded in the proper manner. It cannot be made here for the first time. We must not be understood as intimating it would have prevailed if the objection had been made below. Judgment reversed. WADE V. CLARK. (52 Iowa, 158.) Bankruptcy-discharge-fiduciary debt-merger in judgment. A debt created while acting in a fiduciary character is not discharged in bank ruptcy, although merged in a judgment. A CTION on a judgment. Plea of discharge in bankruptcy The opinion states the point. The plaintiff had judgmen' below. Bryan & Bryan, for appellant. Phillips & Conrad and W. C. Hillis, for appellee. Denton v. Chicago, Rock Island and Pacific Railroad Company. * or while acting in ADAMS, J. The plaintiff relies upon section 33 of the bankrupt act to avoid the effect of the discharge. That section is in these words: "No debt created by fraud a fiduciary character shall be discharged by the proceedings in bankruptcy." It is contended, however, by the defendant that the debt is discharged notwithstanding the provision above quoted. His claim is based upon the fact that judgment was taken upon the debt. That this would have the effect to merge the original cause of action no one would deny; that such merger would prevent all inquiry into the original cause of action seems to have been held substantially in Ridge v. Breck, 10 Cush. 43; Bangs v. Watson, 9 Gray, 211; Wolcott v. Hodges, 15 id. 547; Coleman v. Davies, 45 Ga. 489. The latter case arose under the act in question. The Federal courts, however, sitting in bankruptcy, appear to have given a different construction to the act, holding that the merger of the original cause of action would not have the effect to bring the debt within the operation of the discharge. In re Patterson, 1 Nat. Bank. Reg. 307; In re Whitehouse, 4 id. 63; Warner v. Cronkite, 13 id. 52; Flanagan v. Pearson, 14 id. 87; In re Seymour, 1 Ben. 348; In re Robinson, 6 Blatchf. 253. The same rule was held in State courts in Howland v. Carson, 28 Ohio St. 625; Homer v. Spelman, 78 Ill. 207; Reid v. Martin, 11 Sup. Ct. (N. Y.) 590. Such appears to us to be the correct rule. The debt in question was not, we think, within the meaning of the statute, created when the judgment was rendered. The most that can be said is that that particular form of the debt was then created. In our opinion the debt, within the meaning of the statute, was created while the defendant was acting in a fiduciary character, and is therefore not discharged. The judgment of the court below is affirmed. Judgment affirmed. DENTON V. CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD Co. (52 Iowa, 161.) Negligence-warehouseman — burden of proof. In an action against a warehouseman for the loss of goods by fire, alleged to have been occasioned by his negligence, the burden of proof is on the plaintiff to show such negligence * *To same effect, Claflin v. Meyer (75 N. Y. 260), 81 Am. Rep. 467. A Denton v. Chicago, Rock Island and Pacific Railroad Company. CTION for value of goods lost by negligence. The opinion states the case. The defendant had judgment below. Sapp, Lyman & Ament, for appellant. Rising, Wright & Baldwin, for appellee. SEEVERS, J. The petition states that the defendant received for transportation to plaintiff, at Avoca, certain goods and merchandise; "that notwithstanding its duty in that behalf, defendant failed to transport, keep, and deliver to the plaintiff said goods and merchandise at said Avoca; that defendant utterly failed and refused to do so, though the same had been demanded, but had, by its own negligence, and without fault on the part of the plaintiff, allowed the same to be destroyed by fire." The defendant denied all the allegations in the petition not admitted in the answer, and then averred that the goods were in its possession at Avoca on the 7th day of October, 1875, and the same not being called for they were on the 9th of said month placed in a suitable warehouse and carefully stored therein, and were destroyed by fire on the 11th day of said month, without the fault or negligence of defendant. A general verdict was found for the defendant, and there was a special finding, as follows: "1. Do you find that the goods mentioned in plaintiff's petition were shipped by him at Manchester, Iowa, to be transported to Avoca, Iowa? Ans. Yes. "2. Do you find that said goods were destroyed by fire or in any other manner before they reached their destination? Ans. No. "3. Do you find the said goods were received by the defendant at its station in Avoca, Iowa? Ans. Yes. "4. Do you find that said goods were placed in the defendant's freight house at Avoca, Iowa, and were burned when in said freight house? Ans. Yes." [Omitting minor matters.] The court in substance instructed the jury that the burden of proof was on the plaintiff. That is, before the plaintiff could recover he must establish to the satisfaction of the jury that the destruction of the goods was caused by the negligence of the defendant. |