No brief or argument for appellees was filed.

BECK, C. J. 1. The evidence shows that the land in question is a part of the "Des Moines River Grant," and that the title thereto is in the plaintiffs. The testimony tends to establish the following facts: The property was originally claimed by the Cedar Rapids & Missouri River Railroad Company, under the act of congress of May 15, 1856, granting lands to the state to aid in building certain railroads. This corporation sold the land by written contract, executed December 29, 1865, to James Stinson, who thereupon entered upon the land and made improvements thereon. He assigned the contract to defendants November 2, 1868, who went into possession of the land under their purchase and made other improvements.

The land is one of many tracts claimed under the "Des Moines River Grant." A conflict as to these lands arose between this grant and the railroad grant, which was finally determined in favor of the former by the decision of the United States supreme court in Williams v. Baker, 17 Wal. 144, and other cases therein referred to. This decision, it was conceded on all hands, settled the title of the lands in dispute under the two grants, and determined that they were covered by the "Des Moines River Grant;" and the conrt below held, and so instructed the jury, that the evidence shows the title to be in plaintiffs.

After the decision in Williams v. Baker, supra, the defendants herein brought an action against the Cedar Rapids & Missouri River Railroad Company, upon the contract for the sale of the land in controversy, and in 1873 the company repaid to defendants the full amount paid for the purchase of the land by them and their assignor, Stinson. The railroad company abandoned all claim to the lands in dispute under the grant. Defendants, in their action against the railroad company, claimed that it could convey to them no title, and the company, conceding their claim, made the repayment as stated. The defendants admitted, after the decision in Williams v. Baker, that they held no title to the land, and made no claim thereto, except for the value of the improvements. They had negotiations with plaintiffs for the purchase of the land.

The court gave to the jury instructions in general terms upon the subject of the adverse possession necessary to constitute a bar to the action under the statute of limitations. These, as well as other instructions, are probably correct in

the announcement of abstract rules of law, but the court failed to give directions which would enable the jury to apply them to the peculiar facts of the case.

An important inquiry for the jury was this: Did defendants hold the land adversely? The jury was informed that if the defendants so held the land the action was barred by the statute of limitations. It is a question of law whether the possession of defendants, as shown in the testimony, was adverse to the title of plaintiffs. The instructions given by the court were not directed to the inquiry, and, therefore, could have given the jury no aid in determining it. The plaintiffs asked the court to give the jury the following instructions applicable to this branch of the case:

"First. That to constitute a bar to plaintiff's right to recover in this action defendants herein must show an actual occupancy of the premises in suit, clear, definite, notorious and hostile, and such occupancy must be continuous, adverse and exclusive during the whole period prescribed by the statute.

"Second. Such possession must be under a claim of title or right to the land occupied; or, in other words, the fact of possession, and the intention with which it was commenced and held, are the only tests. If, therefore, the intention is wanting of claiming the title to the land against the true owner the possession will not be adverse, and, however long and continued, will not bar the owner's right to recover.

"Third. If defendants, during the time they have held this land in dispute, only claimed to own the improvements made on said land, then no length of possession will give them title to the land in dispute; and in considering this case you will take into consideration the acts and declarations of the defendants, and their statements of the claim made by them, and if the evidence offered upon the trial of this cause satisfies you that the claim of defendants was a claim for improvements only, then you must find for the plaintiffs.

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Fourth. If you believe, from the evidence introduced on the trial of this cause, that defendants J. J. Sebring and Byron Sebring purchased the land in controversy from the Cedar Rapids & Missouri River Railroad Company by an assignment of a contract of purchase from one James Stinson, and thereby derived the first claim they ever made to the land in suit, and afterwards sued for and obtained the purchase money paid for said land to their assignor, James Stinson, or themselves, by reason of an alleged want of title in said railroad company, then such action on the part of

defendants amounts to an abandonment of all rights claimed or acquired by defendants in and to the title to the land in question, up to the time of receiving such repayments of purchase money, and their claim of title now made must commence from the date of the receipt of such purchase money, if you find such claim has been made by defendants."

2. The correctness of these instructions cannot be disputed. The second announces the rule that the possession, to be considered adverse, must have been held with the intention on the part of the defendants to claim title thereto. The evidence tended to show that defendants abandoned all claim of title by prosecuting the action against their grantors to recover the purchase money paid by them, and by accepting payment thereof, and by negotiating for the purchase of plaintiffs' title, and otherwise admitting that they made no claim except for the value of the improvements.

This evidence should have been considered in the light of the second instruction. If the jury had found the facts which the evidence tended to prove, the want of intention to hold adversely would have been established. Without an adverse holding, which could not have existed in the absence of intention, the defendants were not entitled to the protection of the statute of limitations.

3. The third instruction states a correct proposition of law. The defendants, in order to sustain their defence under the statute of limitations, were required to show adverse possession under claim of title and right to the land. A claim to the ownership of the improvements, it is apparent, is not a claim of title to the land. There was evidence tending to show that defendant's claim was limited to the improvements. The instruction was applicable to this testimony; it ought to have been given to the jury.

4. The fourth instruction refused is also correct. If defendants' only claim of right was based upon their purchase from Stinson, their act in suing for and receiving the purchase money paid by them and their grantors was an abandonment of the title under which they entered upon and held the land. The law will not permit them both to deny and claim under the title derived from the railroad company. Our conclusion upon the point does not demand the support of argument; its bare statement will command assent.

For the error of the court below, in refusing to give the instructions above set out, its judgment is reversed.

MATILDA RHODE, Appellant, vs. HENRY BANK, Administrator, and others, Intervenors, Appellees.

Filed December 2, 1879.

Where a husband died, having a policy of insurance upon his life payable to his own order, leaving a widow but no children, held that under section 1182 Code the wife was entitled to the entire proceeds of such policy.-[ED.

Appeal from Lee circuit court.

Adelbert H. F. Rhode, deceased, at the time of his death held an insurance policy on his life in the Mutual Benefit Life Insurance Company. The policy was for $1,000, payable to the assured, his executors, administrators or assigns. The plaintiff is the widow of said Rhode, and he left no children surviving him, and never had any children as the fruits of his marriage with plaintiff. The defendant Henry Bank is the administrator of the estate of said Rhode, and as such collected upon said insurance policy the sum of $992.56. The intervenors are the brothers and sisters of said Rhode, deceased. They are the next of kin, and, with plaintiff, are the only heirs at law of said deceased. The plaintiff, by this action, claims that she is entitled to the whole of the proceeds of said insurance policy. The intervenors claim that they, as brothers and sisters of the deceased, are collectively entitled to one-half of such proceeds, and that plaintiff is entitled to the other one-half. The circuit court adjudged to the plaintiff one-half, and to the brothers and sisters of the deceased one-half. Plaintiff appeals.

Gilmore & Anderson, for appellant.

R. H. Sherman, for administrator.

Sprague & Gibbons, for intervenors and appellees.

ROTHROCK, J. Section 1330 of the Code of 1851 provided that "the avails of any life insurance are not subject to the debts of the deceased, except by special contract or arrangement, but shall in other respects be disposed of like other property left by the deceased." The same provision was contained in the Revision of 1860, § 2362. By the eighteenth section of c. 173, Acts of the Twelfth General Assembly, it was provided that "a policy of life insurance on the life of an individual, in the absence of an agreement or assignment to the contrary, shall enure to the separate use of the husband, or wife and children of said individual, independently of his or her creditors; and an endowment policy, payable to the assured on attaining a certain age, shall be exempt from lia

bility for any of his or her debts." This provision was incorporated in the Code of 1873, § 1182. Section 2372 of the Code is also identical with section 1330 of the Code of 1851, and section 2362 of the Revision of 1860.

"It is a rule of construction that when a doubtful statute is susceptible of two constructions, one of which will give effect to the whole, and the other render inoperative a portion thereof, the former should prevail." Rheim v. Robbins, 20 Iowa, 45. Another rule to be observed, is that two or more statutes on the same subject must be construed with reference to each other.

Applying these rules in construing these two sections, it seems to us that the wife is entitled to the whole of the insurance. We reach this conclusion upon the strength of section 1182 of the Code, which provides that the policy shall enure to the separate use of the husband, or the wife and children. This provision, as we have seen, was first enacted in the laws of the twelfth general assemby. At that time section 2362 of the Revision was in force, which provided that the avails of life insurance should not be subject to the debts of the deceased, but should in other respects be disposed like other property left by the deceased. Both provisions having been retained, both must be considered in force; each, too must be so construed that it will have a force of its own, unless its provisions are so repugnant to the other that no force can be given thereto. It will not do to say that after the enactment of the laws of the twelfth general assembly the law upon the subject stood precisely as it did before; that is, the avails of life insurance were not subject to debts, and descended to the heirs of the decedent, according to the general law of distribution. Yet that is the effect of the ruling of the court below. Under that ruling no case can be supposed, so far as we can see, where any person's rights would be different in any respect by reason of that enactment. The provision was manifestly designed to restrict the distribution of the avails of life insurance to the classes named. We do not infer this merely from the fact that the legislature must be presumed to have had some object. The language used indicates very clearly that the legislature had in view restriction in distribution. The provision is that the policy shall enure to the separate use of, etc. Now these words are not used to cut off creditors. They were cut off before. Separate use, therefore, does not mean a use separate