perable objection to the view thus presented by the counsel for the appellees is that a bill of exchange, although accepted, unless drawn on a particular fund, does not operate to invest the payee with the character of an assignee.".

In the case of Shepard v. The State, use of Weisel, the court of appeals, at its last session, held that even an accepted bill, unless drawn on a particular fund, does not operate to invest the payee with the character of an assignee of the fund. The case in 5 Hill, 416, is decisive upon this point.

In Harrison v. Williamson, 2 Edw. Rep. 430, it was determined that a bill of exchange has not the effect of an assignment of the money for which it is drawn, in the hands of the drawee, unless, perhaps, where it is drawn upon a particular fund, and then, indeed, by the law merchant, it loses its character as a bill of exchange."

In Sands & Co. v. Matthews, Finley & Co. 27 Ala. 399, it was held that a bill of exchange, until accepted, does not operate as an assignment of the funds in the hands of the drawee. See Edwards on Bills, 142; Byles on Bills, 67, 96 and 191, and notes; 1 Parsons on Notes and Bills, 42, 43, 290, 291, 299 and 300, and authorities cited.

From the authorities above cited the following principles are deducible: First, that a bill of exchange drawn upon a general or particular fund operates as an assignment to the payee of a debt due from the drawee to the drawer when the bill has been accepted by the drawee; second, that a bill of exchange drawn upon a general fund, but not accepted by the drawee, does not operate as an assignment of the fund, but is mere evidence of an assignment, and, with other circumstances showing that such was the intention, will vest in the holder an exclusive claim to the fund, and bind it in the hands of the drawee after notice; third, that an order upon the whole of a particular fund, though not accepted, will operate as an equitable assignment of the fund, and bind it in the hands of the drawee after notice, but that such order does not possess the property of negotiability.

It is clear from the foregoing considerations that the bill of exchange in question in this case does not constitute an assignment of the fund which afterwards came into the hands of the defendant, belonging to the drawee of the bill, but that at the most it is but proof tending, but insufficient of itself, to show such assignment. As has before been said, the fact that the plaintiff required the indorsement of Williams & Son negatives the idea that it received the bill as an assignment of the

fund in the hands of the defendant in satisfaction of the debt due the plaintiff. The only circumstance which tends to show that Brock & Co. intended the bill as an assignment of this fund is the fact that they omitted to include this claim in the inventory of their assets when they made an assignment for the benefit of creditors. But this circumstance is susceptible of explanation upon other grounds, and we do not regard it as sufficient to evince an intention to assign this claim at the time the bill was drawn. The assignment of the account by Williams, on the 16th of March, 1877, cannot be regarded for two reasons: First, the property of Brock & Co. was then in the hands of an assignee for the benefit of creditors, and not under their control; second, the petition does not allege that any assignment was made other than by drawing the bill of exchange in question. In our opinion the plaintiff has failed to show an assignment to it of the claim in question. judgment in favor of the plaintiff is erroneous. Reversed.

The

CHARLES WREDE, SR., vs. JAMES R. CLOUD and others.

Filed December 2, 1879.

Possession of defendant in this case held to be of such a character, and sufficient to operate as constructive notice of the rights under which she claimed. Rogers v. Hussey, 36 Iowa, 664, distinguished. The consideration of certain notes involved in this case held not to have failed.-[ED.

Appeal from Johnson district court.

Action to foreclose a mortgage executed by the defendant Cloud to Fairall and Bonorden, to secure certain promissory notes, which were sold and indorsed by Fairall and Bonorden before maturity to the plaintiff. The defendant Ann Hammersham is made a party, as claiming, title to the land paramount to the mortgage. The land was formerly owned by one Burns. While he owned it, it was sold upon execution upon a judgment against him, and bought at execution sale by one Schwab. Before the expiration of the year of redemption Schwab sold and assigned the sheriff's certificate to Fairall and Bonorden, who, at the expiration of the year, obtained a sheriff's deed, and immediately sold and conveyed to the defendant Cloud, he executing for a part of the purchase money the notes sued on; but before redemption expired Burns had sold and conveyed the land to the defendant Ann Hammersham, who attempted in good faith to redeem within the time allowed by statute, and failed only by reason of the

irregular acts of Fairall and Bonorden, who held the sheriff's certificate, and were interested to prevent a redemption. In an action by Mrs. Hammersham against Fairall and Bonorden and Cloud, brought to enable her to redeem after the expiration of the year, she was granted the relief prayed. The case is reported in 44 Iowa, 462. Afterwards she redeemed.

Wrede, the plaintiff in this action, was not made a party to that action, though he purchased the notes in suit prior to it. He claims to have purchased without notice either of any defence to the notes or any defect in Cloud's title to the land mortgaged. Mrs. Hammersham denies that he purchased without notice of the defect in Cloud's title, and Cloud denies that he purchased without notice of his defence to the notes. Other facts are stated in the opinion. The court gave the plaintiff judgment for the amount of the notes against Cloud, but denied him the right to foreclose the mortgage against Mrs. Hammersham. The plaintiff and Cloud appeal.

S. M. Finch and G. J. Boal, for plaintiff.
Remley & Swisher, for Cloud.

Clark & Haddock, for Mrs. Hammersham.

ADAMS, J. 1. It is claimed by Mrs. Hammersham that at the time the plaintiff purchased the notes and mortgage she was in possession of the premises, and that from her possession the plaintiff had constructive notice of her rights. The plaintiff denies both of these propositions. The notes and mortgage were transferred to plaintiff on the twenty-first day of February, 1874. Afterwards, on the same day, Mr. Bonorden, as agent of Cloud, took possession of the premises. No one was actually residing there at the time. Mrs. Hammersham had leased the premises the year previous, but the tenant had moved away about two months before, leaving about 150 bushels of corn in the barn; and, according to the testimony of one witness, "he left Mrs. Hammersham in possession of the place and the corn." The only things calculated to indicate her possession were that she had a very little furniture in the house, and her husband (acting for her, as we may presume) had locked the doors of the house, and nailed up the windows and nailed up the barn. When Bonorden took possession for Cloud he found it necessary to break open the doors and put on new locks. It seems to us that Mrs. Hammersham was exercising such dominion over the property that Cloud was properly chargeable with notice of it, v3-26 (no. iv) (401)

UNDER
ST.

and if so that plaintiff was also properly chargeable with notice of it. Now, when a person takes a mortgage upon a piece of property which he knows, or should know, that the mortgagor has no valid title to, he cannot be permitted to assert the mortgage against the property.

The plaintiff insists, however, that Mrs. Hammersham's possession, if conceded, did not have the effect to impart constructive notice, because it was commenced under her deed from Burns, and apparently she was merely holding over after the title had accrued to Cloud in pursuance of the foreclosure. In support of this position he cites Colby v. Kenneston, 4 N. H. 362; Rogers v. Jones, 8 N. H. 264; Patten v. Moore, 32 N. H. 385; Matthews v. Demeritt, 22 Me. 312; Rogers v. Hussey, 36 Iowa, 664.

The latter case, it is claimed, is decisive of the one at bar. But, in our opinion, none of the cases cited hold the doctrine contended for. Possession, where it has the effect to constitute constructive notice, does so because it is sufficient to put a subsequent purchaser upon inquiry. Now, if there is a deed upon record running to the person in possession, and apparently sufficient to explain the fact of possession, then the possession may be referred to such deed, and a subsequent purchaser is not bound to look beyond it. In Rogers v. Hussey, above cited, the person in possession purchased the property, and held for a time under a bond for a deed. Afterwards he paid the full purchase money and acquired a deed, thereby uniting in himself both the legal and equitable title; but, while he was holding possession under his mere equitable title, a judgment was rendered against his vendor, and after the deed was executed and recorded; the property was sold upon execution under the judgment. It was held that the purchaser at the execution sale was not affected with constructive notice of the rights of the person in possession, because at the time of the execution sale the person in possession appeared to be holding under a deed; but the deed, having been executed subsequent to the rendition of the judgment, conveyed a title subject to the judgment.

Mrs. Hammersham could not be presumed to be holding under her deed, for the title by that deed had been apparently extinguished by the execution sale and sheriff's deed, made pursuant thereto. But for her equitable right, undisclosed by the record, she should have vacated immediately upon the expiration of the year of redemption. The fact that she did not, but made it necessary for the purchaser to break open

the house and forcibly take possession, should have suggested that she claimed the right to hold the property as against the sheriff's deed, as the fact was.

2. Cloud claims that the court erred in rendering judgment against him on the notes. He claims that the consideration of the notes failed, and that plaintiff had constructive knowledge of the fact in the same way that he was adjudged to have constructive knowledge of the invalidity of the mortgage. If it be true that the consideration of the notes failed, and the plaintiff knew that they were given for the purchase money, it may be that Cloud's position could be maintained. But Cloud purchased with knowledge of Mrs. Hammersham's claims, as was adjudged in the former action. He purchased subject to the contingency of her being allowed to redeem and her being able to do so. He took a deed with covenants of warranty. He had possession for a time. He became entitled to the money paid by Mrs. Hammersham upon redemption, and must be presumed to have drawn it. In our opinion the consideration of the notes did not fail. We see no error in the ruling of the district court. Affirmed.

JOHN DAVENPORT and others, Appellants, vs. J. J. SEBRING and others, Appellees.

Filed December 2, 1879.

Adverse possession of lands, to constitute a bar to their recovery, must be an actual occupancy, clear, definite, hostile, and under a claim of title or right, for the full period prescribed by the statute of limitations. The fact of the possession and the intention with which it was commenced and held, are the only tests. Where the acts and declarations of the occu pant were such as to show a claim of title to improvements only, and not to the land itself, held that no length of possession would give him title to the land.-[ED.

Appeal from Boone district court.

Action to recover the possession of land situated in Boone county. The answer of the defendants denies generally all the allegations of the petition, and pleads the bar of the statute of limitations, alleging that defendants and their grantors had been for more than ten years in the actual, notorious and adverse possession of the land, under claim of title and right. A verdict and judgment were had for defendants. Plaintiffs appeal. The facts of the case are stated in the opinion.

Webb & Dyer and Wright, Gatch & Wright, for appellants. O'Connell & Springer and Hindman & Hall, for appellees.