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made any demand for the return of the money he had deposited, and it does not appear that it was ever suggested to the defendant by anyone that the deposit should be refunded before he made the assignment for the benefit of creditors. The entire amount due Mohling, including the deposit in question, was five hundred and forty-eight dollars and forty-four cents; and it is shown that, before the assignment was completed, the defendant endeavored to have Mohling commence suit, aided by attachment, to recover the amount due him, and represented that, if he would do so, he would obtain all of it. The total amount due Mohling, including the deposit in question, was set out in the schedule of claims attached to the assignment, but the defendant did not prepare the schedule. That was done by his attorney and his son, and he does not appear to have given the fact that the Mohling claim included the deposit in question any thought, but, if he had purposely included it, that fact would not have shown that he had accepted or received the money. That had been done, in violation of his instructions, by his son, and the money so mingled with the funds of the bank that it could not be identified. The unauthorized act of the son was effectual to create between the defendant and Mohling the relation of debtor and creditor; Independent Dist. v. King, 80 Iowa, 497, 500; because it was the right of Mohling, in the absence of actual knowledge of the limitation upon the power of the son, to rely upon the apparent authority with which the defendant had clothed him to receive the deposit. The relation stated, having been established, it could not have been changed, and the money given the character of a special deposit, without the consent of Mohling. t is not shown that the defendant attached to his assignment an inventory of his assets, and the record is entirely barren of evidence to show that he had any intent, in making the assignment, to appropriate to his own use any money or other property which belonged to Mohling, or to alter their relation in any manner. The assignee acquired only the right of the defendant in the property assigned: Meyer v. Evans, 66 lowa, 179, 183; Independent Dist. v. King, 80 lowa, 497, 501. If Mohling had any special interest in or lien upon the property assigned while it was in the hands of the defendant, that interest or lien could have been enforced against the assignee: Bruner v. Bank, 97 Tenn. 540. It is my opinion that the evidence is sufficient to show a civil liability only; that it wholly fails to show that the defendant accepted or received the deposit in question within the meaning of the statute; and that it does not show any act on his part done with a wrongful intent, or from which a wrongful intent should be presumed."

WITNESSES.-CROSS-EXAMINATION extends only to the subjects covered by the direct examination: Enos v. St. Paul etc. Ins. Co., 4 S. Dak. 639; 46 Am. St. Rep. 796, and note, showing that it should not include new matter. If the accused voluntarily testifies In his own behalf. he occupies the same position as any other wit

ness, is liable to be cross-examined as to any matters pertinent to the issue, may be contradicted and impeached as any other witness, and is to be subjected to the same tests: Quintana v. State, 29 Tex. App. 401; 25 Am. St. Rep. 730. A party is allowed to cross-examine as to new matter which is a part of the res gestae. A party is entiued to bring out every circumstance relating to a fact which an adverse witness is called to prove: Bank v. Fordyce, 9 Pa. St. 275; 49 Am. Dec. 561.

INSTRUCTIONS-CONSTRUCTION.-If an instruction contains a complete statement of a proposition of law applicable to the facts in a given case, it is good as part of a series containing the entire law of the case. All of the instructions must be considered together, and construed with reference to each other: Taylor v. Wootan, 1 Ind. App. 188; 50 Am. St. Rep. 200.

SWIFT V. CALNAN.

[10: Iowa, 206.]

PARTY-WALLS-SPECIAL AGREEMENT AS TO, NOT IN WRITING WHEN VALID.--If one of the owners of adjoining and contiguous lots, fronting upon the same street, builds a party-wall on the line between the two lots, upon the other owner's express oral promise and agreement to pay one-half the value thereof upon its use by him, the former may, without reference to the party-wall statute requiring special agreements about such walls to be in writing, recover upon the promise, as at common law, when the latter uses the wall.

PARTY-WALLS PAROL CONTRACT CONCERNING VALIDITY OF.-If a contract is the same, in fact, as that which the law makes for the parties, it is not void. Hence, if a contract as to a party-wall is not different from that which the law makes, it is not void because it is in parol, although the party-wall statute requires special agreements about such walls to be in writing.

STATUTES-CONSTRUCTION-INVALID PROVISIONS.To arrive at the correct interpretation of an act claimed to be unconstitutional, the invalid portions of the act may be considered in construing its other provisions which are confessedly good.

EQUITY-DISMISSAL-REMEDY AT LAW.-Under a statute which provides, in effect, that an error as to the kind of proceedings adopted shall not cause the abatement or dismissal of the action, but merely a change into the proper proceedings, and a transfer to the proper docket, the fact that an action at law is the proper remedy upon a certain contract is no ground for the dismissal of a suit, in equity, upon such contract.

PARTY-WALLS—STATUTE-CONSTITUTIONALITY OF— TAKING OF PRIVATE PROPERTY.-The validity of a party-wall statute which gives a lot-owner the right to build a wall not more than eighteen inches wide, one-half upon the land of his neighbor, and to recover from the latter one-half the expense thereof when he shall use the wall, is not free from doubt, but, as it is not plainly unconstitutional, in contravening provisions with reference to private property, it will be upheld as a valid exercise of the police power, and as resting on the pilnciple that equglity is equity.

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PARTY-WALLS-STATUTE-CONSTITUTIONALITY LONG-CONTINUED ACQUIESCENCE.-A party-wall statute giv

ing a lot-owner the right to build a wall not more than eighteen inches wide, one-half upon the land of his neighbor, and to recover from the latter one-half the expense thereof when he shall use the wall does not so plainly violate a constitutional provision prohibiting private property to be taken for private use without compensation, that it can be held invalid where it has been generally accepted and recognized as valid and enforceable for more than forty years.

MECHANIC'S LIEN-CONTRACT AS TO PARTY-WALL.-While an express promise to pay one-half of the value of a partywall is enforceable against an adjoining owner who uses the wall, the plaintiff is not entitled to a mechanic's lien on the defendant's property for such amount.

Suit in equity to establish and foreclose a mechanic's lien, brought by the Swifts against Calnan. The parties owned adjoining and contiguous lots, fronting upon the same street. The Swifts, in November, 1892, built a stone and brick wall, thirteen inches wide, upon the line between the two lots, so that it could and would be a wall in common. This was done with the knowledge and consent of Calnan, who agreed, before the wall was built, that it should be a wall in common, and promised and agreed to pay one-half the value thereof upon its use by him. Calnan erected a structure on his lots, in August, 1894, and used and appropriated the wall. The cost of the wall was one thousand and eighty-nine dollars, and this suit was brought to recover one-half of that amount, and to establish and foreclose a mechanic's lien for the latter sum upon the defendant's lot. The defendant demurred to the plaintiffs' petition, which recited these facts, on the ground that they were not entitled to any relief. The demurrer was sustained and the plaintiffs appealed.

Hayes & Schuyler, for the appellants.

Walsh Brothers and McCoy Brothers, for the appellee.

210 DEEMER, J. In support of the ruling of the lower court appellee insists: 1. That under the facts recited, plaintiffs are not entitled to a mechanic's lien; 2. That the action is barred by the statute of limitations; 3. That the action cannot be maintained, because based upon oral contract, the statute providing that such agreements must be in writing; 4. That the party-wall statute, giving one person the right to build upon the land of his neighbor, is unconstitutional and void; 5. That, such statute being void, no recovery can be had for a wall erected thereunder; and 6. That where a building wrongfully laps over upon another's land, said person has the right to use it without making compensation. In the statement preceding this

opinion, it will be noticed that plaintiffs built the wall upon the dividing line between the two lots, with the knowledge and consent of the defendant, and with the promise on his part to pay one-half the cost thereof as soon as he should use it. Without reference to the party-wall statute, plaintiffs were licensees, and, having rested half their wall on the defendant's land under an express promise by defendant to pay therefor when he should use it, there is no reason why they cannot, as at common law, recover upon the promise: Rindge v. Baker, 57 N. Y. 209; 15 Am. Rep. 475; Bodell v. Nehls, 85 Iowa, 164; Zugenbuhler v. Gilliam, 3 Iowa, 391; Day v. Caton, 119 211 Mass. 513; 20 Am. Rep. 347. It is said, however, that action. is predicated upon the party-wall statutes, and that such an agreement cannot be proven by parol. These statutes, so far as material, are as follows: "In cities, towns, and other places surveyed into building lots, the plats whereof are recorded, he who is about to build contiguous to the land of his neighbor may, if there be no wall on the line between them, build a brick or stone wall at least as high as the first story, if the whole thickness of such wall above the cellar wall does not exceed eighteen inches, exclusive of the plastering, and rest one-half of the same on his neighbor's land; but the latter shall not be compelled to contribute to the expense of said wall": Code, sec. 2019. "If his neighbor be willing and does contribute one-half of the expense of building such wall, then it is a wall in common between them, and if he refuses to contribute to the building of such wall, he shall yet retain the right of making it a wall in common by paying to the person who built it one-half of the appraised value of said wall at the time of using it": Code, sec. 2020. "Every proprietor joining a wall, has, in like manner, the right of making it a wall in common, in whole or in part, by repaying to the owner of the wall one-half of its value, or the one-half of the part which he wishes to hold in common, and one-half of the value of the ground on which it is built, if the person who has built the wall has laid the foundation entirely upon his own. ground": Code, sec. 2027. "This chapter shall not prevent adjoining proprietors from entering into special agreements about walls on the lines between them; but no evidence of such agreements shall be competent unless it be in writing, signed by the parties thereto, or their lawfully authorized agents": Code, sec. 2030. Now, we have held that when 212 the contract is the same in fact as that which the law makes for the parties, it is not within the meaning of this section: Wickersham v. Orr, 9

Iowa, 253; 74 Am. Dec. 348. The contract relied upon in this case is not different from that which the law made, and it is not void because it was in parol. It is said, however, that sections. 2019, 2020, and 2027 are unconstitutional, because they authorize the taking of private property for private use, and without compensation. Concede, for the purpose of the case, that this is so; yet how does this affect the validity of the contract made between the parties? If these sections were held unconstitutional and void, in so far as they authorize the building of a wall upon the property of another, they certainly should be considered in construing another section which appellee relies upon and concedes, to be valid. While no right may be based upon an unconstitutional act, part of its provisions may be considered in construing other provisions, confessedly good, in arriving at the correct interpretation of the latter. Appellee contends, however, that the agreement, if good, cannot be enforced, because this is a suit in equity, and that remedy upon the contract must be by action at law. The ready answer to this contention is the statute (Code, sec. 2514), which provides, in effect, that an error as to the kind of proceedings adopted shall not cause the abatement or dismissal of the action, but merely a change into the proper proceedings, and a transfer to the proper docket: See Mills v. Hamilton, 49 Iowa, 105; Conyngham v. Smith, 16 Iowa, 471; Lewis v. Soule, 52 Iowa, 11; and many other cases noted in McClain's Code and Supplement, sec. 3719. It is argued, however, that this action is founded upon the party-wall statute, and that this statute is unconstitutional, for the reasons before stated. That it comes very close to the line must be conceded. But 213 the fact that it has existed for more than forty years, and has been generally accepted and recognized as valid and enforceable, is strong reason for sustaining the act, even if we were disposed to doubt, as a new question, its constitutionality: Cooley's Constitutional Limitations, 86; Wurts v. Hoagland, 114 U. S. 606; State v. Blake, 36 N. J. L. 443; Bingham v. Miller, 17 Ohio, 446; 49 Am. Dec. 471. We think that the act in question is not so plainly in derogation of the constitution (art. 1, secs. 9, 18) as that we ought to hold it invalid. Indeed, in case of doubt, it is our duty to uphold the act. Titles to real estate are held subject to such legal conditions as may, from time to time, be established. They are subject to such statutory and police regulations as affect the safety and good order of society. A tract of land, from its mere location with respect to another, may owe it a servitude; and one must so use his own as not to

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