Baker v. Washington County. procuring proofs, etc., at home. If we add to this the consideration that he was allowed within a few dollars of his entire claim (a claim based upon the terms of the resolutions which allowed him twenty per cent of what he alleges was recovered by him for the county), all room for doubt is entirely removed. And the proposition becomes even more incontrovertible, when, by plaintiff's own testimony as a witness, we find, that, in estimating what his services were reasonably worth, he includes the home work, his labors at Washington, as also the services of an agent employed by him, and his expenses. So that it must be accepted as true, that plaintiff was allowed to recover for his services before the commissioner at Washington. As he was never appointed to this work in the manner contemplated by section 13 of the act of 1862, nor in any other manner known to the law, it follows that he could not recover for such services, and that all of the instructions and proceedings based upon this theory were erroneous. This conclusion is manifest enough when we look at the language of the law itself, its spirit and policy, and is fully supported by Webster County v. Taylor, 19 Iowa, 122. Indeed, no other rule could be adopted consistent with the limited powers of the board. And experience but serves to demonstrate that every attempt to defeat the law by allowing unwarranted and exorbitant compensation in connection with these lands should be met and unhesitatingly checked. We need hardly remark, that, as the board had no power to employ plaintiff to secure the allowance of the claims at Washington, the instructions would be clearly erroneous in those parts which allowed the jury to look at the contract for the purpose of seeing "how valuable or otherwise his services were expected to be worth." The contract was made under a mistaken view of the powers of the county board, and, as a consequence, can Baker v. Washington County. serve no other purpose than to show the fact of employment to the extent authorized by law. Reversed. BECK, J. (dissenting).-I cannot concur in the foregoing decision. In my opinion, it cannot be fairly inferred, from the language of the instructions, that the court intended to direct the jury to find in favor of plaintiff for services rendered before departments of the government at Washington. The instructions taken together, in the light of the pleadings and evidence, appear to me clearly to limit the liability of the defendant for services rendered in taking proofs, and for other like services in the county. The petition makes no claim for any other services. It does not appear that defendant's counsel in the court below did, during the trial, or at any time since, suppose that any claim was made, or any recovery was had, for any other services; and it is only by a construction of the language of the instructions that such a conclusion is arrived at, a construction which, in my opinion, is unwarranted by their express language. I have great doubts as to plaintiff's right to recover, except as an agent appointed under the act of April 8th, 1862, and for the compensation therein fixed. This doubt would ripen into conviction were it in accordance with the opinion of my brothers, and I would, in that case, consent upon that ground to a reversal of the cause. But if the position of my brothers be true, that plaintiff can recover for services rendered in the county in taking proofs under the employment of the supervisors, I am clearly of the opinion that the judgment of the District Court should be affirined. Sowden & Co. v. Craig. SOWDEN & Co. v. CRAIG. I. Per CURIAM. 1. Notice: lis pendens. The pendency of an action affecting real estate, is sufficient to charge third persons with notice thereof. 2. Acknowledgment: BY ATTORNEY. A certificate of acknowledgment to a chattel mortgage executed by attorney prior to the act of February 24, 1858 (Rev. § 2251-54), in the following form, is sufficient: STATE OF IOWA, DES MOINES Co.- Before the undersigned, a notary public for said county, came J. M. B., agent for N. M. B. and R. S. C., who are personally known to me to be the identical persons whose names are affixed to the foregoing bill of sale, as grantors, and they acknowledged the same to be their voluntary act and deed," etc. 3. Fixtures: CHATTEL MORTGAGE: NOTICE: MECHANIC'S LIEN. A chattel mortgage upon machinery which afterward becomes, with the knowledge and consent of the mortgagee, attached to the realty, by being placed as fixtures in a mill, will not be affected by the lien of a mechanic having notice of the facts, for work done on the mill; and no person chargeable with such notice can, by purchase of the real estate, or otherwise, acquire, from or through the mortgagor, any title to such fixtures paramount to the mortgagee. 4. 5. The constructive notice imparted by the recording of such mortgage before the affixion of the chattels is, it would seem, as effectual to protect the rights of the mortgagee as actual notice would be. II. Per DILLON, Ch. J., dissenting. When machinery, with the consent and co-operation of the person holding a chattel mortgage thereon, has been placed in, and so permanently attached to a building, as to become a part of the realty, the record of such mortgage does not, under the statute, impart constructive notice to a mechanic claiming a lien upon such real estate, for work done on the building, nor affect the rights of a purchaser of the real estate without actual notice of the mortgage. Appeal from Des Moines District Court. TUESDAY, DECEMBER 11. FIXTURES: MECHANIC'S LIEN: HOW AFFECTED BY RECORDED CHATTEL MORTGAGE, ETC. — Replevin for two engines, two boilers, one circular saw, one muley saw and appurte Sowden & Co. v. Craig. nances. Plaintiffs and defendant each claim an absolute title to the property. Upon the instruction hereinafter noticed, the jury returned a verdict for the defendant, and the plaintiffs appeal. To understand the questions presented, it is necessary to state the history of the title of the respective parties. I. Facts concerning the plaintiffs' title. Plaintiffs are machinists doing business in the city of Burlington. In 1856, they manufactured the engines, boilers and saws now in controversy for Messrs. Burris & Cox, of Burris City (so called) in Louisa county. On the 29th day of November, 1856, the property was delivered, in Burlington, to Burris & Cox, who, on that day, executed to the plaintiffs a chattel mortgage thereon. It is under this mortgage that the plaintiffs claim. This mortgage is in the usual form, reciting that it is made to secure plaintiffs $1,350, and that it is the same property "recently purchased by us (Burris & Cox) of Sowden & Co." It contains this provision: "But, if default be made in the payment of said note, the said Sowden & Co. are hereby authorized to cause the aforesaid engines, boilers and saws to be sold at public auction," etc. This mortgage was signed thus: "N. W. BURRIS, J. M. BLOOMFIELD, The certificate of acknowledgment was in this form: 'STATE OF IOWA, 88. DES MOINES COUNTY, Before the undersigned, a notary public for said county and State, this day came J. M. Bloomfield, agent for N. W. Burris and R. S. Cox, who are personally known to me to be the identical persons whose names are affixed to the foregoing bill of sale, as grantors, and they acknowledged the same to be their voluntary act and deed." Sowden & Co. v. Craig. This was duly signed and sealed by the officer on the 29th day of November, 1856. The machinery was immediately shipped to Burris City, and plaintiffs, pursuant to contract, sent an agent to set it up in a saw mill, then being erected by Burris, or Burris & Cox. This agent of the plaintiff presented the bill of sale to Burris, and Burris signed it with his own name, and it was thereupon, to wit, on the 9th day of December, 1856, filed for record, and recorded in the chattel mortgage records of Louisa county. At this time the machinery was in Burris city, one engine on its foundation, but not bolted down, the other was not on its foundation. Plaintiff's agent helped to set up the machinery, and the same was set up in a permanent and substantial manner in the mill. The mill was inclosed, the boilers set on stone foundations, and incased in brick. The engine was set on timbers, locked, bolted and keyed in the timbers of the mill. The machinery was so set up and affixed "that it could not have been taken out without partially taking the building to pieces." II. Facts concerning defendant's title. The mill was being erected on certain lots in Burris city. Down to December 9, 1856, the title to these lots was in N. W. Burris. On that day, Burris sold the lots (the mill thereon being in process of erection) to one Key. On the 11th of June, 1857, Key sold to Wood, Baker & Co. Defendant's title is derived from a sheriff's sale on a mechanic's lien execution in favor of one Druse. Druse, as a millwright, commenced work on the mill on the 17th day of January, 1857, and prior to July, 1857, had done work to the amount of $465. In July, 1857, Druse commenced suit to enforce a mechanic's lien upon the mill, making Burris, Key and Wood, Baker & Co. defendants. |