dience to an order of the court, and that, | without any objection being made, he proceeded to state at length with respect to the incorporation and business of the Fuller Implement Company, and of the transfer of its property to a partnership, and subsequent transfer by the partnership to a new corporation, called the "Co. operative Implement & Hardware Company." Following this statement, he was asked: "When was the delivery made of that property to the Co-operative Implement & Hardware Company, and how was the delivery made?" Defendant objected as immaterial and incompetent; and M. E. Fuller objected to the witness' giving any testimony against her, for the reason that he is her husband, and not competent to testify against her. The objection being overruled, the witness proceeded to state the details of the transaction between these several companies. The only statement referring to Mrs. Fuller was that he was her agent; that she had some of the notes of the companies which were taken by her in the course of business; that they were sold to her for money which she lent the company on which to do business; that the partnership owed Mrs. Fuller $5,797.07, for which she held the notes of the partnership. In these statements there was nothing adverse to the claim made in behalf of Mrs. Fuller. Upon the cross-examination, the attorneys for Mrs. Fuller inquired very minutely as to the transactions by Mr. Fuller as agent for his wife with the several companies,and the amounts of money advanced by her through him, and the state of the indebtedness to her. In this connection the books of the Fuller Implement Company and several promissory notes by the company to Mrs. Fuller, amounting to $6,000, were called out and introduced, and it was upon cross-examination to this new matter that the statement was elicited upon which the plaintiff claims that there was no consideration for these notes. After this, Mr. Fuller was recalled, and further examined by plaintiff as to the transactions had by him as agent for his wife, which was followed by further crossexamination. Upon the examination of Mrs. Fuller, she repeatedly disclaimed any personal knowledge as to the transactions between Mr. Fuller, as her agent, and the companies, her answer uniformly being: "Ask my agent." Under this state of the record, it cannot be said that Mr. Fuller was permitted to testify against his wife, over her objection.

1887, and all drawing interest at the rate of eight per cent. per annum, (Exhibits 4, 5, and 6.) That no consideration passed from M. E. Fuller for said notes, but they were made to her for the purpose of keeping the business of the judgment debtor separate from the Fuller Implement Company corporation. (6) That there is due from M. E. Fuller to judgment debtor, by reason of the fifth finding of fact herein, the sum of $6,265.69, being the sum of the several payments with six per cent. interest per annum from the date thereof." These findings have other support than the statement of Mr. Fuller that the one object of giving these notes was to keep the accounts separate. The testimony of Mrs. Fuller shows that she was not possessed of any means at the time of her marriage, and that she had no source of income or accumulation since but the wages allowed her by her husband for attending to the ordinary household duties of a wife, and the increase that arose from the investment of her wages; that her accumulations were managed by her husband, according to his own judgment, and without any direction from her. While she has been thus accumulating money to a considerable extent, he has been prosecuting his business in connection with these corporations and the partnership, the last of which came to insolvency. Without discussing in detail the testimony upon this subject, we may say that it is not such as to inspire the belief that the wife has been in fact as successful in accumulating money as claimed, while the husband, who transacted the business, and the companies he managed, are without means to pay their debts. The findings of the court find ample support in the testimony.

4. Appellant, in her answer, pleaded the existence of plaintiffs' action in equity in abatement of this proceeding, and now complains of the findings of the court against that plea. That plea was interposed upon the theory, before mentioned, that this is an equitable action. It being a proceeding auxiliary to execution, it is not abated not abated by the other action, even though it had been first commenced. This proceeding being to discover property may very properly be prosecuted either before, or

contemporaneously with, an equitable action to subject the property to the payment of debts. We find no error in the action and rulings of the court. Our conclusion is that the order of the superior court should be affirmed.

et al.

(Supreme Court of Iowa. Oct. 28, 1890.) CHANGE OF VENUE-FORECLOSURE-MORTGAGES.

1. In an action to enjoin a sale under exocution, in which the sheriff, though having no personal interest, is joined as co-defendant, he is not entitled to a change of venue on his motion made after the real defendants in interest have answered, under the provision of Code Iowa, 2589, that, "if a suit be brought in the wrong county, it may there be prosecuted to a termination, unless the defendant, before answer, de

manded a change of place of trial to the proper county."

2. General creditors cannot question the construction placed on a mortgage of their debtor's property, in a suit to foreclose, to which all persons having an interest in the mortgaged property are made parties.

Appeal from district court, Des Moines county; CHARLES H. PHELPS, Judge.

This is an action in equity for an injunction to restrain the defendant O'Neill, who is sheriff of Pottawattamie county, from selling, at sheriff's sale, certain real estate and certain shares in a corporation, upon an execution issued upon a judgment rendered in Des Moines county district court, in an action in which one B. R. Westfall was plaintiff, and the Wabash, St. Louis & Pacific Railway Company was defendant. Said judgment is now the property of the defendants Polk & Hubbell. The ground upon which the plaintiff seeks the injunction is that the property levied upon is not the property of the defendant in execution, but that it is the property of the plaintiff. A preliminary injunction was issued as prayed, which, upon final hearing, was made perpetual. Defendants appeal.

H. S. Priest and F. T. Hughes, for appellants. Theo. Sheldon, for appellee.

ROTHROCK, C. J. 1. The first question arising upon the record is whether the court should have changed the place of trial to Pottawattamie county, in pursuance of a motion made by the defendant O'Neill. Counsel for appellants insist that the court erred in overruling the motion. Thomas O'Neill, the sheriff, is a resident of Pottawattamie county. The defendants Polk & Hubbell are residents of Polk county, and the judgment was rendered in, and the execution issued from, Des Moines county. The petition for an injunction was filed on the 5th day of March, 1888, and, on the 10th day of the same month, Polk & Hubbell filed their answer. On the 30th day of the same month, the defendant O'Neill filed a motion for a change of the place of trial. The defendants Polk & Hubbell did not join in this motion. O'Neill did not, at any time, file an answer in the case, and, on the final decree, he was adjudged to be in default for want of an answer. It is provided by section 2589 of the Code that, "if a suit be brought in the wrong county, it may there be prosecuted to a termination, unless the defendant, before answer, demanded a change of place of trial to the proper county." It is not pretended that O'Neill has any personal interest in the action. For the purposes of this case, he is a mere ministerial officer of the law, in a state of inaction, pending the litigation between the plaintiff and the defendants Polk & Hubbell, the real parties defendant. Polk & Hubbell filed the only answer that was filed before the motion for change of venue was made. The motion came too late to be of benefit to them, and the statute does not contemplate that a merely nominal party, without the concurrence of the real parties, may compel a transfer. The real question at issue was tried in the district court of Des Moines county by the real

parties in interest, without objection, and this court is not called upon to determine for them whether it was tried in the proper county.

2. We come now to a consideration of the merits of the case. It involves but one ultimate question, which is whether the property levied upon is owned by the plaintiff, the Omaha & St. Louis Railway Company. The said plaintiff claims to be th the owner, through the foreclosure of a mortgage dated February 15, 1879, a foreclosure sale thereunder, and a master's deed of the date of March 29, 1887, and a supplementary decree dated October 7, 1887. The defendants claim under a judgment recovered December 30, 1885, in the circuit court of Des Moines county, an execution issued from that court dated November 21, 1887, and a transcript of said judgment filed in Pottawattamie county, November 23, 1887, and a levy made December 1st in the same year. The property in dispute is situated in Pottawattamie county. It will be conceded for the purpose of this case that, if the transcript of the judgment had been filed in Pottawattamie county before the said foreclosure suit was commenced, the judgment would have been a lien upon the property. This concession is made to avoid a voluminous statement of the contents of certain deeds, mortgages, decrees of foreclosure, and other documents set out in the record. They are all immaterial to the vital question in the case. The mortgage under a foreclosure of which the plaintiff claims the property in controversy describes the property mortgaged in these words: "All and every part and parcel of the continuous line of railroad aforesaid, all right, title, and interest therein, as now owned, leased, and held by the said St. Louis, Kansas City & Northern Railway Company, commencing at said Elm Flats, near Pattonsburgh in the state of Missouri, and extending through the counties of Daviess, Gentry, Nodaway, and Atchison, in said state of Missouri, and through the counties of Page, Fremont, Mills, and Pottawattamie, in the state of Iowa, to the city of Council Bluffs, in said state, as said railroad now is, or may be hereafter, constructed, maintained, operated, or acquired, together with all the privileges, rights, franchises, real estate, right of way, depots, depot grounds, side tracks, water-tanks, engines, cars, and other appurtenances, thereunto belonging." If this description includes the property levied upon in this case, the decree of the district court is correct, because it is not claimed that the proceedings in the foreclosure suit were not in all respects regular. The property levied upon by O'Neill, sheriff, as shown by his return, is as follows: "About three acres of ground situated in N. W. 4 of section 2, and in S. W. 4 of S. W. of section 35, township 74, range 44, now occupied by the buildings and grounds of the Union Elevator Company of Council Bluffs, Iowa; also the following personal property: All the stock and shares of stock, consisting of 467 shares, more or less, of the nominal value of $100 per share, in the certain corporation known as the 'Union Elevator Com

pany,' of Council Bluffs, Iowa, and all the Interest of the said Wabash, St. Louis & Pacific Railway Company in said corporation, and the assets thereof." It should have been stated that the action for the foreclosure of the mortgage was in the circuit court of the United States for the southern district of lowa. The question was submitted to that court in the action for foreclosure, whether the above-described Union Elevator property and the shares of stock were included in the said mortgage, and it was held that it was 80 included, and that it was part of the mortgaged property. That question was not one presented to that court merely to settle the claims made by the receivers appointed by the federal courts in MisBouri and Iowa. So far as appears, all parties having any interest in the railroad mortgaged and its appurtenances were parties to that action. Counsel for defendants make some claim to the effect that, by a strict foreclosure of a mortgage, nothing is subject to the mortgage, except the property described, and that, in such a proceeding, no such orders are made as was entered by the federal court. But this was not a strict foreclosure. The action involved all of the rights of all of the parties to all the property embraced in the mortgage, and it was a question for the federal court to construe the mortgage, and determine just what property was mortgaged. The defendants have no right to complain of the decision of the federal court. At that time, they had no lien against the Wabash, St. Louis & Pacific Railroad Company upon any property outside of Des Moines county. It is possible that they might have presented a case entitling them to relief, upon the ground that the Wabash Company and the plaintiff herein, by fraud and collusion, obtained a decree including property that was not mortgaged. But no such claim is made. The defendants were mere general creditors without liens, and they have no right to question the construction placed upon the mortgage by the federal court. It is claimed that an appeal was taken from said order to the supreme court of the United States, and that the appeal is still pending. But it appears that the order was not suspended by bond, and, unless so suspended, the order remains in full force. Kountze v. Hotel Co., 107 U. S. 378, 2 Sup. Ct. Rep. 911. It is claimed further that an action in equity cannot be maintained, because the property involved in the action is personal property, in the nature of choses in action. But the return of the sheriff shows that he made a levy upon real estate; and the order made by the federal court includes the shares of stock as incident to the elevator property. We have not thought it necessary to refer to the numerous authorities cited by counsel. We have preferred to determine the cause upon well-established fundamental principles. We cannot follow counsel into the examination of authorities upon the rights of lienholders. These defendants were not lienholders at any time. When they filed their transcript of the judgment in Pottawattamie county, the judgment defendant had

(Supreme Court of Iowa. Oct. 28, 1890.) BANKS AND BANKING COLLECTIONS—ASSIGNMENT for Benefit oF CREDITORS.

1. A bank which collects a letter of credit, left with it for that purpose only, holds the proceeds as a trust fund, though it credits tho amount to the owner on its books, and notifies mand his money, and where the bank deposits the proceeds with another bank, and afterwards makes an assignment for benefit of creditors, the owner of the letter of credit is entitled to be paid in full.

2. One who files a claim against an assignor for benefit of creditors with the assignee does not thereby waive any claim he may have for other or greater payment than that to which the general creditors are entitled.

Appeal from district court, Hanson county; C. H. LEWIS, Judge.

This action is based upon an agreed statement of facts. The subject-matter of the controversy is the proceeds of a certain draft or letter of credit which the Exchange Bank of Dunlap collected for the plaintiff. After the collection the bank became insolvent, and made an assignment for the benefit of its creditors. The defendant, Satterlee, is the assignee, and the contention between the parties is whether the plaintiff should recover the full amount of the collection, or merely the pro rata amount due to the common creditors of the bank. The district court rendered a judgment and decree for the full amount of the claim, and the defendant appeals.

Charles McKenzie, for appellant.

ROTHROCK, C. J. The material facts as disclosed by the agreed statement are as follows: The plaintiff delivered the letter of credit to the bank on the 31st day of October, 1888, and the bank delivered to him a receipt in these words: "Oct. 31, 1888. Received from A. J. Nurse for collection letter of credit for £179. 19s. 7d. from London and Coventry Banking Company. $200 advanced on same. L. A. SHERMAN, Cashier." The plaintiff at that time had just removed from England to the United States. He fixed his residence in the city of Omaha, Neb., about, or in a short time after, November 1, 1888. The draft or letter of credit was delivered to the bank by C. H. Nurse, the plaintiff's agent, and the $200 advanced was paid by the bank to said agent. On the 6th day of November, 1888, the said bank sent the said letter of credit to the Bank of Montreal at Chicago, and by letter requested a remittance of the proceeds to sald Exchange Bank. On the 8th day of November, 1888, the Bank of Montreal sent the following letter to the Exchange Bank: "Chicago, Illinois, November 8, 1888. To Cashier Exchange Bank, Dunlap, lowaDear Sir: In payment of your collection, London and Coventry Banking Company, £179. 198. 7d., received in your favor of the 6th inst. We incloso draft on Bank of New York, $872.45, ex. $.84%. We trust

that you are satisfied as to the identity of payee. Yours, truly, J. H. MUNDT, Manager. On the 10th day of November, 1888, the Exchange Bank made the following entry on its journal: "Arthur Nurse, proceeds of letter of credit, $671," and a like entry was made at the same time on the credit side of the ledger of the bank. Prior to the 15th day of November, 1888, the cashier of the Exchange Bank advised the said C. H. Nurse of the fact that the proceeds of said letter of credit had been received by the bank, at or about the same time the said C. H. Nurse notified the plaintiff by letter that the money had been collected, and that the proceeds were held by the Exchange Bank subject to plaintiff's order. On the same day that the Exchange Bank made the above entries upon its journal and ledger, it sent the draft for $872.45 to the Council Bluffs Savings Bank with directions to place the same to the credit of the Exchange Bank, which was done. The Exchange Bank had for some time kept an account with the said Council Bluffs Savings Bank against which it drew drafts. The account was kept in the usual manner, and was credited with remittances made and charged with drafts drawn by the Exchange Bank. On the 14th day of January, 1889, the said Exchange Bank made a voluntary assignment for the benefit of its creditors. The defendant is the assignee, and the assets of the bank are insufficient to pay the creditors. This was the only transaction the plaintiff ever had with said bank, and he has not been paid anything upon said collection, excepting the $200 as above stated. On the 4th day of March, 1889, the plaintiff filed with the defendant, as the assignee of said bank, his claim arising out of the receipt by said Exchange Bank of the proceeds of the letter of credit. At the time the assignment was made by the bank, there was $2,000 standing to its credit in the Council Bluffs Savings Bank.

2. It is urged in behalf of appellant that the plaintiff, by filing his claim with the assignee for allowance as a creditor of the insolvent bank, waived all right to other or greater payment than that to which the general creditors were entitled. We do not concur in this view. For aught that appears the plaintiff may have believed, when he filed the claim, that the assets would be sufficient to pay all the creditors in full. The filing of the claim did not operate to the prejudice of the rights of any one. No creditor of the bank has been misled or lost any advantage by it. The defendant, assignee, has not changed his position, nor incurred any liability thereby. There are no facts shown which amount to a waiver or estoppel as against the plaintiff. See McLeod v. Evans, 66 Wis. 406, 28 N. W. Rep. 173, 214.

3. It is urged with apparent confidence by counsel for appellant, that the facts establish the relation of debtor and creditor between the plaintiff and the bank, and that the plaintiff has no more right to a preference in payment than any other depositor in the bank. Surely it ought not to be claimed that any such relation as depositor was intended by the parties in the first instance. The plaintiff delivered

the letter of credit for collection. He did not take a certificate of deposit, but an ordinary receipt for a collection. When the collection was made there was no change made in the relation of the parties. The entry made in the bank-books did not change the transaction to a deposit. Even if the officers of the bank had made it appear by the bank-books that the transaction was a deposit, it would not have affected the rights of the parties. The plaintiff could not be transformed into a depositor without his consent. The only fact in the case tending in the least degree to show any other relation than that of principal and agent is that the plaintiff did not call for his money at once upon being notified that it had been collected. But this delay does not authorize the finding that the plaintiff regarded the bank as bearing any other relation to him than that of a collector. The money was therefore held by the bank in the nature of a trust fund. Instead of keeping the trust funds separate and apart from other funds of the bank, it was deposited with the Council Bluffs Savings Bank, and, when the assignment was made, there was a balance in that bank in favor of the Exchange Bank amounting to $2,000. Under this state of facts the plaintiff is entitled to full payment. We have recently had occasion to examine quite fully the same question or principle in the cases of Independent Dist. of Boyer v. King, 45 N. W. Rep. 908, and in Plow Co. v. Lamp, Id. 1049. It is sufficient to refer to those cases, and the authorities therein cited. We might say, however, in conclusion, that the case is very much the same in its facts as that of McLeod v. Evans, supra, with the exception that, in that case, the money collected could not be traced to any distinct fund. Here it is to be found as a deposit in the Council Bluffs Savings Bank. This difference in the cases is the ground upon which a dissenting opinion was based in the cited case. The judgment of the district court is affirmed.