Viele v. Germania Insurance Co. This case is approved and followed in Anson v. Winneshiek Ins. Co., ubi supra. These decisions do not, perhaps, necessarily conflict with Ayers v. Hartford Ins. Co. (17 Iowa, 176, 190), where it is held, that, if the authority of the agent is only to receive and forward applications," the company is not responsible for his errors in drawing up the application; while, if he had power to take risks, and did, in fact, take the risk in question, the insurers would be estopped from disputing the correctness of the representations contained in the application prepared by him. It must be admitted, however, that the distinction between the power "to take applications," and the power "to receive and forward applications," is a very fine one. See also, Bartholomew v. Farmers' & Merchants' Ins. Co., 25 Iowa, 507. To this late course of decision as to the responsibility of insurance companies for acts of their agents, the Massachusetts cases, again, are a marked exception. Not only is it there held, that in drawing up the application the agent is in all cases to be regarded as the agent of the applicant, whose duty it is to see that it is correctly framed (Lowell v. Middlesex Mutual Fire Insurance Co., 8 Cush. 127; Forbes v. Agawam Ins. Co., 9 id. 470; Lee v. Howard Ins. Co., 3 Gray, 583); but a peculiar doctrine has been established in respect to mutual insurance companies, viz. that neither their agents nor officers have any power to waive conditions of insurance, imposed by the policy or by-laws of the company (Hale v. Mechanics' Ins. Co., 6 Gray, 169; Brewer v. Chelsea Mutual Ins. Co., 14 id. 203; Baxter v. Chelsea Mutual Ins. Co., 1 Allen, 294; Tebbetts v. Hamilton Mutual Ins. Co., 3 id. 569; Mulrey v. Shawmut Ins. Co., 4 id. 116; Murphy v. People's Mutual Ins. Co., 7 id. 239; Evans v. Trimountain Mutual Ins. Co., 9 id. 329), though they may waive formal preliminary proofs of loss. Priest v. Citizens Mutual Ins. Co., 3 Allen, 602. These decisions appear to be based on the ground that in mutual companies the insured parties constitute the only members, and are affected with notice of and bound by their rules, which are for the common benefit and protection of all, and that the officers have no other powers than those given by the by-laws. In Worcester Bank v. Hartford Ins. Co. (11 Cush. 265), there appears to be manifested a disposition (so far as can be gathered from the very brief and unsatisfactory opinion delivered) to apply a similar rule to stock companies. On the whole, the Massachusetts cases on the subjects discussed in this note may be fairly said to stand apart by themselves, and to breathe a spirit of sternness toward the insured, in marked contrast with the tone of decision in New York, and still more so with that prevailing in the courts of the Western States. Miller v. Gregg. MILLER V. GREGG et al. Taxes: SCHOOL FUND MORTGAGE. The county authorities of a county cannot, for the use of the school fund, buy in an outstanding tax title for the purpose of defeating the lien of a mortgage held by a third party, and which is prior to one existing on the same land, in favor of the fund. Appeal from Muscatine District Court. TUESDAY, OCTOBER 27. THE petition alleges, that the defendant Gregg made his mortgage to plaintiff upon certain parcels of real estate; that subsequently he incumbered, in the same manner, to the school fund of Muscatine county, a part of the same lands; that the land covered by the last mortgage was afterward sold for delinquent taxes; was not redeemed therefrom; that the purchasers or holders of the certificate took their deed; and that the county authorities, in order to defeat and cut off plaintiff's mortgage, purchased the land from those holding under the tax title. The charge and claim was that they could not thus purchase; that the county authorities could not in this way deprive plaintiff of his prior lien; concluding with the usual prayer for a foreclosure. To the petition there was a demurrer, substantially upon the ground that it appears therefrom, affirmatively, that plaintiff's lien was defeated by the purchase of the outstanding tax title. Demurrer overruled. Defendant (the county for the use of the school fund) excepted and appeals. J. Carskadden for the appellant. Cook & Drury for the appellee. school fund mortgage. Miller v. Gregg. WRIGHT, J.-We are to determine but one question, and that is, could the county authorities buy in this tax TAXES: title, and thus defeat and cut off the lien of plaintiff's mortgage? or, in other words, had they the power under the law to make such purchase, and thus give to the fund which they represent and manage, the title to this land as against plaintiff's mortgage? In our opinion, they could not, and, as a consequence, the court below did not err in overruling this demurrer. Whether the county or the fund may not have a right to be repaid what is due for taxes, interest and costs, or to be subrogated to the rights of those who held the tax title as to the redemption money, is a question not before us, and with which we have nothing to do. The petition charges that the purchase was made not simply to acquire a lien, but to defeat plaintiff's mortgage. The demurrer, in effect, concedes that this is true-that this is what the county claims. Counsel so insist here, and this question, and this only, therefore, do we decide. The power or right to make the purchase is founded upon the provisions of chapter 148, Laws of 1862, which declares, that the board of supervisors shall hold and manage the securities given to the school fund in their several counties, and all judgments and liens belonging to the same, and to that end may sue for the use thereof, and do all other acts in relation to the same necessary for the protection of said fund. By another statute it is provided, that in no case shall the lien created by a mortgage to this fund be affected by a sale of the incumbered property for taxes (Rev. § 11); and under this it has been held when the State took title by the foreclosure of a mortgage to the school fund, it held the land free and unaffected by any delinquent taxes, and in selling the same conveyed it in like manner discharged of all tax liens. Helphrey v. Ross, 19 Iowa, 41; Crum v. Cotting, Gould v. Bowen. 22 id. 423. And this being so, no proposition can be plainer as it seems to us, than that as the school fund lien could not be affected by the tax sale, the purchase of such tax title was not necessary for the protection of the fund. As, therefore, the power of the authorities. only extends to such acts as were thus necessary, it follows that there was no power to make the purchase, and that they could not thus cut off the lien of the plaintiff's mortgage. As to the powers of counties or their officers in purchasing lands for taxes, see Bruck v. Broesigks, 18 Iowa, 393. It is, of course, unnecessary to discuss the question of power except as it is derived from the statute. It is conceded to rest upon the statute, if any where. As we have seen that it is not there conferred, we have only to answer that the judgment below must stand Affirmed. GOULD V. BOWEN et al. 1. Power of attorney: TRANSFER OF PROMISSORY NOTE. A power of attorney contained the following authority: "for me and in my place and stead to sell, convey and dispose of, any and all property, both personal and real, which I have, or may have, in Delaware county, Iowa, and to give in my name any bill of sale that may be necessary, of personal property, and in my name to give a waranty deed, or otherwise, for any of my real estate sold, and to collect in my name any money now or hereafter to become due to me, and to do all other matters in relation to any of my property or debts which I could do if personally present. Giving and granting," etc. Held, that the attorney was thereunder empowered to transfer the title and possession of a promissory note, by indorsement thereof, belonging to his principal. The case of Whiting v. The Western Stage Co., distinguished from the present one. 2. whether the indorsement would subject the principal to the ordinary liabilities of an indorser, left undecided. Gould v. Bowen. Appeal from Delaware District Court. TUESDAY, OCTOBER 27. ACTION in detinue for a promissory note. The defendants claim title to the note under an indorsement thereof by S. C. Bowen, as attorney in fact for the plaintiff under a power of attorney. The defendants offered the power of attorney in evidence, for the purpose of proving the authority of the defendant S. C. Bowen to indorse and transfer the note to his co-defendants. It was objected to on the ground that it was immaterial, and that it conferred no such authority. The court overruled the objection and admitted the evidence, and this ruling is the only error assigned. The plaintiff appeals. S. G. Van Anda for the appellant. No appearance for the appellee. TORNEY: promissory note. COLE, J.-The material parts of the power of attorney under which the defendants claim the authority was POWER OF AT- given to transfer the note in controversy, are transfer of as follows: "For me and in my place and stead, to sell, convey and dispose of any and all property both personal and real, which I have or may have in Delaware county, Iowa, and give in my name any bill of sale that may be necessary, of personal property, and in my name to give a warranty deed or otherwise for any of my real estate sold, and to collect in my name any money now or hereafter to become due to me, and to do all other matters in relation to any of my property or debts which I could do, if present. Giving and granting unto my said attorney full power and authority to do and perform all and every act and thing whatsoever, |