58 314 88 538 Adair v. Egland. kind. Can there be any doubt that, upon the failure of A. J. Wilder to perform his contract, Lacy could have, by proper proceeding, pursued the land, the title of which was in the defendant, and caused it or the proceeds of it to be subjected to the payment of the judgment? Frank Wilder held the land in a certain sense as a trustee. Both he and his father treated it as such. Defendant even wrote a letter to Briggs, in which he stated to him that if he did not take the land he would deed it back to Lacy. Lacy was the person to whom it should have been conveyed, if not sold and the proceeds applied on the judgment. We think when the defendant mortgaged the land on his own account he should have applied the proceeds of the mortgage to reimburse himself for taxes which he had paid, and that as he knew that he held the title to this land for the purpose of using it in paying the judgment, he is liable for at least the amount found in his hands when he was garnished. AFFIRMED. ADAIR ET AL. V. EGLAND. THE SAME V. SANDERSON. An al 1. Promissory Note: ALTERATION OF: RENDERS NOTE VOID. Appeal from Marshall Circuit Court. SATURDAY, APRIL 22. ACTIONS on promissory notes. The defendants pleaded the notes had been materially altered after their execution, and a Adair v. Egland. failure of consideration. Trial to the court, judgment for the defendants, and plaintiff appeals. Brown & Carney, for appellants. J. H. Bradley, for appellee. SEEVERS, CH. J.-The notes are substantially alike, and as the defenses are the same, both cases will be disposed of in a single opinion. The material portions of the NOTE: altera- note in the second case, when it was executed, 1. PROMISSORY tion: renders note void. $150. were as follows: POST OFFICE, MINERAL RIDGE, TOWNSHIP MARION, HAMILTON COUNTY, June 29th, 1880. Six months after date I promise to pay to James B. Drake, or bearer, one hundred and fifty dollars, negotiable and payable at the with ten per cent interest, etc." National Bank, We understand the post-office of the maker to be Mineral Ridge, Boone county, but the note was executed in Hamilton county. In the absence of any evidence to the contrary the court below was warranted in finding the maker resided either in the county of Boone or Hamilton. The blanks in the other note were precisely the same as above stated, and the court was warranted in finding the maker resided in Hamilton county. The plaintiffs sought to recover on notes payable at the "Marshalltown Bank," "Marshalltown, Iowa," and the notes in question, when introduced in evidence, on their face showed the word "national" had been erased. This was plainly visible and the blanks then so filled as to make the notes payable as aforesaid. There was evidence tending to show the plaintiffs purchased the notes for value before maturity, and they were then in the same condition as at the trial. There was evidence tending to show the notes were Adair v. Egland. obtained for a hay fork agency, by false representations, and that there was a failure of consideration, and the notes had been altered without the knowledge or consent of the makers. The only question we are required to determine is, whether the alteration rendered the notes void in the hands of the plaintiffs. It seems to be agreed on all hands it does, if the alteration was material and destroys the identity of the note or changes its legal effect. Daniel on Negotiable Instruments, §§ 1373, 1374. Unless, perhaps it was done by mistake or was the act of a stranger. As a part of the alteration consisted of an erasure, which was visible, the burden was on the plaintiffs to show it was done by some one or in a manner that would not affect the liability of the defendants. Daniels on Negotiable Instruments, §§ 1417, 1418. No evidence was introduced so tending. There are cases which hold where a blank has been left, as for the insertion of the name of a bank or other place where the note can be made payable, that the holder may fill the blank without discharging the maker. This is on the ground that implied power had been given to do so. But there may be a doubt whether such authority can be invoked where the place, at which the note would be otherwise payable, has been materially changed. But, conceding the rule to be as above stated, we do not think there is any case which holds that a material alteration by erasure will not have the effect to render the note void. When these notes were executed they were either payable generally, or at some national bank, which could be designated by the holder. If the former, then they were payable at the residence of the makers. This court will take judicial notice that Marshalltown is the county seat of Marshall county. Having been made payable in Marshall county by the alteration, the defendants were bound to go to such county to pay the notes. Besides this, an action under the statute could be brought on the notes in Marshall county. The alteration was therefore material. But it may be claimed the holder had authority to so fill the blanks as to Hampton v. Jones. make the notes payable at the first national bank of Marshalltown, and therefore the alteration was not material. The parties, however, contracted the note should be payable at a national bank. It was accordingly so made payable. This contract has been broken by one party without the consent of the other. By the contract, the kind of a bank where the was payable, became, and was, material. We cannot say it is not, when the parties have said it was. note AFFIRMED. HAMPTON V. JONES ET AL. In an 1. Malicious Prosecution: PROBABLE CAUSE: PLEADING. 2. : SPECIAL DAMAGES: TOO REMOTE. A claim for special damages, on the ground that, because of the finding of the indictment, the wife of plaintiff became sick and utterly helpless, is too remote. 3. Appeal: WHEN IT LIES: RECORD. An appeal lies as a matter of right from an order of court sustaining & demurrer to the petition, although the record does not show an election to stand on the petition. Appeal from Henry District Court. SATURDAY, APRIL 22. ACTION to recover damages caused by a malicious prosecution, instituted by the defendants against the plantiff. A demurrer to the petition was sustained and the plaintiff' appeals. Casey & Casey and Palmer & Palmer, for appellant. Woolson & Babb, for appellee. 58 317 80 144 58 317 91 584 prosecution: probable cause: pleading. Hampton v. Jones. SEEVERS, CH. J.-The petition at great length, and with un1. MALICIOUS necessary particularity, states the grounds upon which the plaintiff seeks to recover. It is not deemed essential to set it out in full. It being sufficient to state it alleges the defendant "maliciously and without any reasonable or probable cause whatever, indicted, and caused and procured to be indicted, the plaintiff, by his proper name, Henry C. Hampton, and therein did allege, accuse and present in said indictment and caused to be alleged therein, that the plaintiff * * did willfully, knowingly and falsely, commit willful and corrupt perjury; that said indictment is hereto attached by copy and made a part hereof, marked exhibit A; that the said defendants, in pursuance of their said purpose, appeared and testified before the grand jury and thereby caused the presentment of said indict* * And the plaintiff avers that he is not guilty of the crime charged against him in said indictment, and did not willfully, knowingly and falsely, commit willful and corrupt perjury, and of which the defendants were informed and well knew long prior to the time of the presentment of said indictment." It is stated the indictment was dismissed. * ment. * The first ground of the demurrer is that the petition fails to show there is a want of probable cause. In sustaining the demurrer on this ground the court erred, because it is clearly and distinctly alleged the defendants maliciously, and without probable cause, procured the indictment to be found. Under the most strict and technical rules of pleading this, in our opinion, is sufficient. The second ground of demurrer is as follows: "The petition and exhibits show that the plaintiff, in order to enable certain parties to obtain marriage license, went before the clerk of the court, to whom application for said license was made, and falsely swore that said parties were unmarried, and that he knew of no legal impediment to their entering said marriage contract, and that at said time he knew that the same |