Dec. 122-125; see also Freeman on Co-tenancy and Partition, sec. 54; note to Pryor v. Stone, 70 Am. Dec. 344. The principal case is cited to the point that tenancy in common does not defeat a homestead claim: Hewitt v. Rankin, 41 Iowa, 44; Sentell v. Armor, 35 Ark. 52; Bartholomew v. West, 8 Nat. Bank. Reg. 14; S. C., 2 Dill. 293.

TEMPLIN V. IOWA CITY.

[14 IOWA, 59.]

MUNICIPAL CORPORATION IS LIABLE FOR CARELESSNESS OR NEGLECT OF ITS AGENTS in the construction of public works, on the same principle that a natural person is liable for damages resulting from his carelessness, unskillfulness, or wrong-doing.

NEW TRIAL WILL NOT BE GRANTED ON GROUND THAT VERDICT IS AGAINST EVIDENCE, where the evidence is conflicting.

ACTION for damages. The opinion states the case.

Clark and Brother, and Fairall and Boal, for the appellant. L. B. Patterson, and Edmunds and Ransom, for the appellee.

By Court, BALDWIN, C. J. This is is an action against Iowa City to recover damages which plaintiff claims to have sustained in consequence of the action of the authorities of said city in grading certain streets adjoining the property owned and resided upon by the plaintiff, thereby causing the water to flow in upon the lot, and into the cellar of the building thereon. Upon issue joined and trial by jury, a judgment was rendered in favor of the defendant, and the plaintiff appeals.

The only assignment of error is that the court erred in refusing to set aside the verdict of the jury, and grant to the plaintiff a new trial. Under this assignment it is claimed: 1. That the verdict is against the evidence; 2. That the verdict is against the instructions of the court; 3. That the instructions given by the court on its own motion are erroneous.

It is not assigned as error, though it is insisted upon in the argument of appellant, that the court erred in refusing to give the instructions asked by the plaintiff. The instructions given by the court upon its own motion dispose of the questions presented in those asked by the plaintiff. The instructions thus given are full, and cover all the questions that arise in the case. The court in its charge to the jury recognized the rule of law as adopted by this court in the case of Cotes v. City of Davenport, 9 Iowa, 227, "that a municipal corpora

tion is liable for the carelessness or neglect of its agents in the construction of public works, on the same principle that a natural person is liable for damages resulting from his carelessness, unskillfulness, or wrong-doing." The instructions of the court were fully as favorable to the plaintiff as the law would justify the court in making them, and they were not even excepted to at the time they were given. The point most relied upon by the appellant is, that the verdict is against the weight of evidence. A great number of witnesses were called, and their testimony is before us. Their evidence as to the injuries the plaintiff has sustained is very conflicting, so much so that it was peculiarly the province of a jury to determine in whose favor there was a preponderance. After a careful consideration of the evidence, we do not think that this falls within the class of cases that would justify us in interfering with the discretion of the district court, more especially in this case, as the jury could better determine the applicability of the evidence to the case, as they were, under an order of the court, directed to view the premises.

Affirmed.

VERDICT WHEN SET ASIDE AND NEW TRIAL GRANTED BECAUSE AGAINST EVIDENCE: See Kidd v. Laird, 76 Am. Dec. 472, note 479; Cooper v. Mullins, Id. 638. The principal case is cited to the point that where evidence is conflicting, a very clear case must be made out to justify the court in setting aside the verdict on the ground that it is not supported by the evidence: Conner v. Mountain, 28 Iowa, 593; also to the point that a verdict may be set aside when rendered under direction of the court, because no replication had been filed where it is shown that a replication had been prepared and handed to the clerk for filing: Barnes v. McDaniels, 35 Id. 382.

LIABILITY OF CITY FOR NEGLIGENCE OF ITS AGENTS IN CONSTRUCTION OF PUBLIC WORKS: City of St. Paul v. Seitz, 74 Am. Dec. 753, and note 761, 762. The principal case is cited to the point that cities and towns are liable for negligent and careless construction of improvements and repairs of streets: McCord v. High, 24 Iowa, 346; Ross v. Clinton, 46 Id. 611; Weis v. City of Madison, 75 Ind. 248.

PLUMMER V. DOUGLAS AND WATSON.

[14 IOWA, 69.]

DEFENDANT IS ESTOPPED FROM DENYING VALIDITY OF JUDGMENT BY CON. FESSION where in the statement therefor he admits that a sum certain is due plaintiff, and consents to the rendition of judgment for that sum, notwithstanding the statement is so defective in setting out the facts out of which the indebtedness arose that the judgment is invalid as to creditors other than the judgment creditor.

BILL for injunction restraining defendants from taking further action for purpose of collecting a judgment confessed by complainant in favor of the defendants, on the ground that the statement of the facts out of which the indebtedness arose was defective. Injunction made perpetual, and defendants appeal.

C. H. Conklin, for the appellants.

I. M. Preston and Son, for the appellee.

By Court, BALDWIN, C. J. It was held by this court in the case of Bernard v. Douglas, 10 Iowa, 370, that the statement of facts upon which this judgment was confessed was defective, and the judgment thereon void, at least as to the rights of other creditors. The question now presented is, whether it is void as against the complainant, who was the defendant in the judgment confessed.

Judgments by confession are closely scrutinized, and their validity more frequently questioned than any other kind of legal proceedings. The design of the statute authorizing such judgments is altogether proper, but those who desire to overreach their creditors, to cover their property by prior encumbrance, resort to this mode of creating liens more than to any other.

The validity or invalidity of such judgments as against the rights of third parties, where the statute has not been strictly complied with, has been frequently brought to the attention of this court, and the law controlling the rights of such parties fully settled.

The question as to the validity of such judgments between the parties, when the statute has not been substantially complied with in respect to the statements of facts out of which the indebtedness arose, is in this case fairly presented.

In the case of Edgar v. Greer, 7 Iowa, 136, the statement of facts out of which the indebtedness arose was held to be defective, and the judgment entered thereon was reversed. The court do not undertake to say that the judgment was void. It is in substance held that where there is a substantial error in the manner of the confession the defendant can appeal, that by his confession he is not estopped from gainsaying the correctness of the judgment, or asking of this court its reversal.

In Kennedy v. Lowe, 9 Iowa, 580, it was held that where the statement of facts was not such as was contemplated by the provisions of the statute, the judgment confessed thereon

was void as to the creditors of defendant, and the right of the defendant to take advantage of such defect upon appeal is, as in Edgar v. Greer, 7 Iowa, 136, clearly recognized. In neither of these cases is it assumed by the courts that the judgment is void.

In the case of Bernard v. Douglas, 10 Iowa, 370, the statement of facts was held to be insufficient to authorize such a judgment as would prejudice the rights of third parties. The validity of the judgment as against the party making the confession was not before us. Bernard & Co., as creditors of the defendant, moved to set the judgment aside, claiming that, as against them, the judgment was fraudulent and void, for the reason that they were not advised of the nature of the indebtedness upon which the confession was made.

While the language of the opinion would seem to indicate that a confession of judgment made upon a defective statement of facts was without authority of law and void, yet it will be remembered that the validity of the judgment as against the party making the same, and the rights of the plaintiff in the confession as against the defendant, was not before the court for consideration. The judgment was declared void only so far as third parties were concerned.

In the case of Vanfleet v. Phillips, 11 Iowa, 558, this count held that the statement of facts upon which each of the several judgments was confessed was sufficient. In the opinion, my associate, Judge Wright, appears to entertain grave doubts as to the correctness of the decision in Edgar v. Greer, 7 Iowa, 136, and Kennedy v. Lowe, 9 Id. 580, in so far as they assume to treat such judgments as entirely void, and follows with a remark which clearly indicates his opinion as to validity of such judgments between the parties thereto.

As above stated, we do not think that the court, in the case of Edgar v. Greer, 7 Iowa, 136, or Kennedy v. Lowe, 9 Id. 580, decided that the judgments in those cases were entirely void. What the effect of such judgments would have been, as between the parties, had they not been appealed from, was not passed upon.

In the case of Churchill v. Lyon, 13 Iowa, 431, the statement was held to be insufficient under the statute; yet this court held that the judgment thereon was valid, and effective as against Lyon, for the reason that the confession was made in open court, and not in vacation.

The question as to whether judgments thus entered, where

the statements are defective, are void as between the parties, seems to be unsettled by this court.

The provision requiring the party confessing to show in his statement the facts out of which the indebtedness arose was calculated to guard against judgments by collusion between the parties, but it was never designed that the defendant should take advantage of his own omission or intended wrong. As between the parties where the defendant swears that a certain sum is due, and he consents to the rendition of a judgment for that amount, the necessity for such a statement ceases to exist.

We are also of the opinion that the defendant, after having sworn to a sum certain as due to the plaintiff, and consenting to the rendition of a judgment for such sum, is estopped from denying the validity of a judgment which by his own acts he has induced the plaintiff to obtain.

Cowen, J., says, in the case of Dezell v. Odell, 3 Hill (N. Y.), 219 [38 Am. Dec. 628]: "We have, then, a clear case of an admission by the defendant intended to influence the conduct of a man with whom he was dealing, and actually leading him into a line of conduct which must be prejudicial to his interest, unless the defendant be cut off from the power of retraction."

"As a general rule, a party will be concluded from denying his own acts and admissions which were expressly designed to influence the conduct of another, and did so influence it. And where such denial will operate to the injury of the latter," see opinion of Nelson, C. J., in Welland Canal Company v. Hathaway, 8 Wend. 483 [24 Am. Dec. 51].

Reversed.

STATEMENT OF FACTS, WHEN SUFFICIENT TO SUPPORT JUDGMENT BY CONSESSION: See Nichols v. Kribs, 76 Am. Dec. 294, and note 296; Bryan v. Mil ter, 75 Id. 107, and note 109. But such judgment is binding upon the parties thereto, though the statement be defective: Bryan v. Miller, supra. The principal case is cited to the point that the party confessing judgment is estopped from denying the validity thereof where he admits that a certain sum is due, although the statement does not set forth the facts out of which the indebtedness arose: Burchett v. Cassady, 18 Iowa, 343; Daniels v. Claflin, 15 Id. 153; McMillan v. Oraig, 14 Id. 593; Thorp v. Platt, 34 Id. 316.