Notice, Actual and Constructive — Discharge of.

Gavran v. Haupt, 9 Ibid. 83; Campbell v. Leonard, 11 Ibid. 489; Kuhn v. Graves, 9 Ibid. 303; Torbert v. Hayden, Ibid. 435; Fromme v. Jones, 13 Ibid. 474.

20. The notice contemplated by said section is not actual as contradistinguished from constructive, but includes both. Allen v. McCalla, 25 Iowa, 464.

27. A mortgagee of personal property is a purchaser within the meaning of the recording act. Many & Co. v. Woods et al., 33 Iowa, 265, and Porter et al. v. Green, 4 Ibid. 571.

28. in another State or county. A mortgage duly executed and recorded in another county or State imparts constructive notice wherever the property may be. A mortgage recorded in Kansas will hold the property after it has been brought to Iowa, and sold to a third person. Smith & Co. v. McLean, 24 Iowa, 322; Simms v. McKee & Stimson, 25 Ibid. 341.

29. Mistake in indexing. A chattel mort

21. Constituents of actual notice. Notice is actual where the purchaser either knows of the existence of the adverse claim, or is conscious of having the means of knowledge, and does not use them, whether his knowledge is the result of a direct communication, or is gath-gage purported to be executed by A & Co., but ered from facts and circumstances. And where a person designedly abstains from making inquiry for the purpose of avoiding knowledge, he will not be regarded as a bona fide purchaser without notice, but as charged with the knowl edge which his inquiries would have developed. Ibid., and Wilson v. Miller & Beeson, 16 Ibid. 111; English v. Waples, 13 Ibid. 57.

22. An attaching creditor who has notice that a mortgage exists, to some one, on the property upon which the levy is made, cannot defeat it by showing that at the time of the levy he believed that the mortgage was being withheld from record, in order to delay and defraud creditors. Ibid. 23. Notice to attorney. Notice to the attorney is notice to the client. Whether the notice to the attorney must be in the course of the transaction in which he is acting for his client, left undecided. Ibid.

24. Constructive notice: recording act. The recording of a chattel mortgage is not essential when the possession of the mortgaged property passes to the mortgagee at the time of the execution of the mortgage. Fromme v. Jones, 13 Iowa, 474.

was signed by A alone, and indexed in his name, without the words " & Co." by the recorder. Held, that notwithstanding this error, it was properly admitted in evidence to show notice to subsequent purchasers, but without determining whether the mortgagee or the subsequent creditor or purchaser must suffer from the error of the recorder. Fromme, v. Jones, 13 Iowa, 474. III. DISCHARGE OF.

30. The taking of a new note and mortgage on personal property to secure an indebtedness already evidenced by a note and secured by a mortgage on the same property, does not, even when the first note and mortgage are canceled, operate to discharge the lien of such first mortgage. Packard v. Kingman et al., 11 Iowa, 219.

31. But where the payee of a note, secured by chattel mortgage, delivered it up to the maker and took a new one, different in amount and payable at a different date, without any agreement to show that it was to be secured by the mortgage, it was held that he lost his right to the security as against the holder of other notes secured thereby. Wilhelmi v. Leonard, 13 Iowa, 330.

32. Permitting property to be sold under inferior claim. A mortgagee of chattels is not, in the absence of fraud, precluded from recovering upon the mortgage debt because he permits the property covered by the mortgage to be sold under an inferior claim or lien. His failure in such case to assert his right under the mortgage does not estop him from recovering the indebt

25. A mortgagee of chattels takes the title thereto unaffected by any lien of the vendor for the purchase-money of which he had no notice, unless such lien was evidenced by writing, acknowledged and recorded. Manny & Co. v. Woods et al., 33 Iowa, 265, and cases in § 19, ante. 26. qualifying agreement. Where the title to personal property has once passed to the vendee absolutely, it cannot be so qualified by an unrecorded writing as to affect the right oredness secured thereby in an action therefor title of a purchaser without notice from the vendee. Ibid. But it may be stipulated that the title shall not vest until the price is paid. Bailey v. Harris, 8 Iowa, 331.

against the mortgagor. Jones, Kitch & Co. v. Turck & Co., 33 Iowa, 246.

33. Extinguishment by payment. Where chattel mortgagees are in possession of the

Foreclosure and Sale.

mortgaged property, and selling it at private of the mortgage, passes an absolute title to the sale, to satisfy the debt, their right to control and dispose of the same ceases as soon as their debt is fully satisfied. Bellamy et al. v. Doud, 11 Iowa, 285.

ance of that city, which provides that tax deeds shall "run in the name of the city, and be signed and acknowledged by the city collector in his official name." McNamara v. Estes et al., 22 Iowa, 246.

3. Muscatine. The object of the act entitled "An act to amend the act to incorporate the city of Muscatine," approved July 14, 1856 (Laws of 1856, 49), is sufficiently expressed in its title, and the said act is not in violation of section 26 of the third article of the constitution of 1846 which provides that "every law shall embrace but one object which shall be expressed in its title." Morford v. Unger, 8 Iowa, 82.

4. Irregular organization. An allegation that a municipal corporation was organized in an irregular manner does not constitute a good defense to an action for a violation of its ordinances. Decorah v. Gillis & Espy, 10 Iowa, 234. 5. Power to create municipal corporations. The legislature has the constitutional power to create a municipal corporation. Langworthy v. The City of Dubuque et al., 16 Iowa, 271.

10. And where such officers are not the same provided for in the special charter, and elected at a different time, they cannot perform the legislative duty provided for by the special charter. Ibid.

11. The town of Decorah was organized under a special charter, by which the legislative authority was vested in a president and a board of six trustees, elected annually, the last Tuesday in June. On the first Monday in March, 1860, and annually thereafter, until 1867, it elected a mayor, a recorder and five trustees, under chapter 51, Revision 1860, but the special charter was not abandoned, and no vote of the people was taken thereon. The council, thus elected, passed an ordinance requiring the owners of certain property to build a sidewalk. Held, that the ordinance was not valid for the reason that the body passing the same was not legally constituted. Ibid.

II. OFFICERS, THEIR RIGHTS, POWERS AND

DUTIES.

12. Compensation of officers. A town or city

Iowa

6. Grant of power: intention of donor. The intention of the donor in the grant of a power is a public corporation, and the compensation of to a municipal corporation is the cardinal prin- its officers may be modified or changed by the ciple that governs in its construction, and this department of the government which has power intention is to be ascertained primarily from to create and control offices and officers. the language employed in the charter and the City v. Foster et al., 10 Iowa, 189. object and purpose in view. Middleton Savings 13. Right of mayor to preside over the Bank v. The City of Dubuque et al., council. 15 Iowa, The mayor of cities of the second class, organized under the general incorporation law (ch. 51, Rev. 1860), is not ex officio a member of the city council, and has no right to preside over the same. Cochran et al. v. McCleary, mayor, 22 Iowa, 75.

394.

7. Release by ordinance of interest in real property. A release by a municipal corporation of a claim to the use of real property, by ordinance and not by deed, will be enforced by a court of equity when the releasee has paid the consideration or entered into the possession and made valuable improvements. Grant, Receiver, v. The City of Davenport, 18 Iowa, 179.

8. Prior charters: repeal of. It was not intended by article 8, section 1, of the new constitution to repeal charters of cities granted by the legislature prior to the adoption of the constitution. Warren v. Henly et al., 31 lowa, 31. 9. The provisions of chapter 51, Revision 1860, do not apply to towns organized under a special charter. And the election of officers pursuant thereto, instead of under the special charter, does not amount to an abandonment of the special charter, and an organization under the provisions of said chapter. Town of Decorah v. Bullis, 25 Iowa, 12.

14. Such council shall select from its own number, a presiding officer. Ibid.

15. The right of the mayor of Iowa City, to preside over the council under the provisions of the special charter, was taken away by the subsequent organization of the city, under the general incorporation act. Ibid.

16. Individual liability of officers. A demand of the mayor and members of the council of a municipal corporation, by a judgment creditor thereof, to levy a tax for the payment of his judgment, and also to issue the scrip of the corporation in payment thereof, are not essential to the right of the creditor to maintain an action against such officers as individuals. Such an action may be maintained after a demand to levy a tax within the authority of the council and a

Officers, their Rights, Powers and Duties - Ordinances, their Effect, Validity, Violation, etc. refusal to comply with such demand. Oswald 20 N. Y. (6 Smith) 312; Appleby v. The Mayor, v. Thedinga et al., 17 Iowa, 13.

17. Corporation not liable for tortious acts of officers. The general principle, rendering

the master liable for the tortious acts of his ser-
vant committed in his service, does not apply to
the wrongful acts of the officers of a municipal
corporation, who are elected for a definite term,
during which they are restrained and governed
only by the statutes which prescribe their
duties, which statutes, by presumption of law,
are known to, and, by the exercise of a reason-
able diligence, may be practically understood by
everyone who may have business with them,
Estep v. Keokuk County, 18 Iowa, 199, and §.
et seq., post.

18. Corporations not liable for unauthorized acts. A municipal corporation is not bound by the unauthorized acts of its officers. Dively v. The City of Cedar Falls, 21 Iowa, 565; Mullarky v. Same, 19 Ibid. 21.

etc., 15 How. Pr. 428; Estep v. Keokuk County, 18 Iowa. 199.) Clark v. The City of Des Moines, 19 Iowa, 199.

20. Third parties are charged with notice of officers' powers. The duties and powers of the officers of a municipal corporation are prescribed by the statute, and every person dealing with them as such may know, and is charged with the knowledge of the nature of those duties and the extent of these powers. (Delafield v. State of Illinois, 2 Hill, 159, 174; 26 Wend. 192; S. C., 8 Paige, 53; Hodges v. Buffalo, 2 Denio, 110; Supervisors v. Bates, 17 N. Y. 242; Overseers v. Overseers of Pharsalia, 15 Ibid. 341; Butterfield v. Inhabitants of Melrose, 6 Allen, 187; Rossire V. City of Boston, 4 Ibid. 57; Zabriskie v. Cleveland, Columbus & Cincinnati R. R. Co., 23 How. 381, 398.) Clark v. The City of Des Moines, 19 Iowa, 199.

III. ORDINANCES; THEIR EFFECT, VALIDITY,
VIOLATION, ETC.

21. Taking effect of ordinance. Under section 19 of the charter of Iowa City (Laws of 1853, 99), which provides that the city ordinances shall be recorded in a book to be kept for that purpose, and signed by the mayor and attested by the recorder, the signature of the mayor to the copy of record is not essential to the taking effect of an ordinance. Conboy v. Iowa City, 2 Iowa, 90.

19. Power of officers to bind corporation. Agents, officers, or even a city council of a municipal corporation cannot bind the corporation by any act which transcends their lawful or legitimate powers. And this rule applies to the issue of negotiable as well as unnegotiable evidences of debt. Mayor of Albany v. Cunliff (city not liable for negligently building bridge under an unconstitutional statute), 2 Comst. 165, 1849; reversing S. C., 2 Barb. 190; Cuyler v. Trustees of Rochester (laying out street contrary to charter), 12 Wend. 165, 1834; Hodges v. Buffalo (4th of July appropriation), 2 Denio, 110, 1846; Halstead v. The Mayor, 3 Comst. 430, 1850; Martin v. The Mayor, 1 Hill, 545; Boone v. Utica, 2 Barb. 104; Cornell v. Gilford, 1 Denio, 510; Boyland v. The Mayor and Aldermen of New York, 1 Sandf. (N. Y.) 27, 1847; Dill v. Wareham, 7 Metc. 438, 1844; Vincent v. Nan tucket, 12 Cush. 103, 105, 1858; per MERRICK, J.; Stetson v. Kempton, 13 Mass. 272; Parsons v. Inhabitants of Goshen, 11 Pick. 396; Wood v. Inhabitants of Lynn, 1 Allen (Mass.), 108, 1861; Spalding v. Lowell, 23 Pick. 71; Mitchell v. Rock-nicipal corporation can have no extra territorial land, 45 Me. 496, 1858; S. C., 41 Ibid. 363; Anthony v. Adams, 1 Metc. (Mass.) 284, 1840; Western College v. Cleveand, 12 Ohio, 375, 1861; Commissioners v. Cox, 6 Ind. 403, 1855; The In habitants v. Weir, 9 Ibid. 224, 1857; Smead v. The Indianapolis, Pittsburg & Cleveand R. R. Co., 11 Ibid. 104; 1858; Brady v. The Mayor,

22.- So much of said section as requires the city ordinance to be signed by the mayor, attested by the recorder, and before they take effect, to be published in one or more newspapers published in the city at least ten days; and if there be no such paper posted up in each ward the same length of time, are essential to the ordinances taking effect, but those requirements following these provisions,and above referred to relate to the preservation of the ordinances and are simply directory. Ibid.

23. Territorial force. An ordinance of a mu

force; but persons or property coming within the territorial limits of the corporation come under its authority. Gosselink v. Campbell, 4 Iowa, 296.

24. Dubuque city ordinance. The ordinance of the city of Dubuque, entitled "An ordinance to regulate the sale and occupation of the stalls

Ordinances, their Effect, Validity, Violation, etc.

in the central and first ward markets," is not in-
consistent with the powers granted by section 7
of an "Act for revising and consolidating the laws
incorporating the city of Dubuque, and to estab-
lish a city court therein." The State of Iowa for
the City of Dubuque v. Leiber, 11 Iowa, 407.
25. Effect of reorganization under general
incorporation law. The reorganization of a
city government under chapter 51 of the Revis-
ion of 1860, does not have the effect to repeal
an ordinance, lawfully enacted under a former
charter, making the council the tribunal for the
trial of contested municipal elections. Ex parte
Strahl, 16 Iowa, 369.

26. Conflict of statute with ordinance. Where a statute of a State conflicts with the ordinance of a municipal corporation, the former controls. The City of Burlington v. Kellar, 18 Iowa, 59.

the purpose of unloading some goods, to remove at once on the approach of the cars, and a delay on his part, even for a short time, for the purpose of removing a box which is the last of his load, thereby causing a stopping of the cars during such delay, is an unnecessary obstruction within the meaning of the ordinance, and will render him liable to its penalty. The State, for the use, etc., v. Foley, 31 Iowa, 527.

30. Violation of ordinance: title of prosecution. That portion of section 8, article 5 of the State constitution, which provides that "All prosecutions shall be conducted in the name and by the authority of the State of Iowa," does not apply to prosecutions for infractions of city ordinances, but contemplates only those instituted for violations of the laws of the State in those tribunals provided for by the constitution. It is accordingly held, in the present case, 27. Burlington city ordinance. The ordi- that a prosecution for the violation of a city or nance of the city of Burlington, passed Novem-dinance was properly instituted in the name of ber 3, 1862, prohibiting within the said city the the city. The City of Davenport v. Bird, 34 keeping of " any house or place where persons Iowa, 524. resort for the purpose of drinking wine, beer or ale, or other malt or spirituous drinks," without a license from the authorities of said city, is in valid, and no prosecution can be sustained thereunder. Ibid.

31.

And the city may, in such case, being thereto authorized by its charter, arrest and imprison the defendant, on his failure to pay the fine assessed against him. Ibid.

As to proof of ordinances, see EVIDENCE.
IV. CORPORATE POWERS.
a. In general.

A

28. Ordinance not passed by the corporate body. The town of Decorah, organized in 1857 under a special charter, by which its legislative authority was vested in a president and a board 32. Powers which it may exercise. of six trustees. In 1860, and annually thereafter municipal corporation possess and can exercise till 1867, it elected a mayor, recorder and five the following powers, and none others: First, trustees, under the act of March, 1858, but no those granted in express words; second, those vote of the people was taken upon the question necessarily implied, or necessarily incident to of abandoning their special charter or of organ- the powers expressly granted; third, those abizing under said act of 1858. The council thus solutely essential to the declared objects and elected passed an ordinance requiring the owners purposes of the corporation not simply conof property on a certain street to build a side-venient, but indispensable; and any fair doubt walk in front thereof. Held, that the ordinance as to the existence of a power is resolved by the was invalid, as it was not passed by the corporate body in which, under the special charter, the legislative authority was vested. The Town of Decorah v. Bullis, 25 Iowa, 12.

courts against the corporation and the existence of the power. (Vincent v. Nantucket, 12 Cush. 103, 105: Clark, Dodge & Co. v. Davenport, 14 Iowa, 494; Clark v. Des Moines, 19 Ibid. 199; Minturn v. Larue, 23 How. [U. S.] 435; Bunk v. Chillicothe, 7 Ohio St. 2, pp. 31, 36, per HITCHcock, J.; Collins v. Hatch, 18 Ibid. 523; Sharp v. Spear, 4 Hill, 76, approved in 2 Denio, 330, and in 10 N. Y. 329; Ham v. Miller, 20 Iowa, 450, 453; Mays v. Cincinnatti, í Ohio St. 268.) Merriam v. Moody's Executors, 25 Iowa, 163; § 47, et seq., post.