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Huttemeier v. Albro, 18 N. Y. 48; Winston v. Johnson, 42 Minn. 398, 45 N. W. 958.
It can make no difference whether the seller exhibit a way on a plan or assert one in his conveyance. If he conveys land bounded by a street or way used as appurtenant to the premises conveyed in connection with another street or way necessary as an outlet in such a manner as to unequivocally assert the existence of the latter, he cannot be heard to deny its existence thereafter, and because of this a covenant that it exists is implied which runs with the land. In the case at bar the way described as extending from the railroad to the east and west alley was appurtenant to the land conveyed, and the only conceivable object in including it in the deed was to afford the grantee an outlet 379 from the back end of his premises to Harrison street. This is manifest from an examination of a map of the lots :
The way was for alley purposes, and extended from along the premises conveyed to the alley on the north side of lot 6 with the manifest object of enabling the grantee to pass along this way to the "alley," and then down to the street. The defendant then owned the land at the place where he asserted the east and west alley existed, and in harmony with the decisions cited could not be heard to say that no alley, in fact, existed there. From these circumstances a covenant is implied under which a private way passed to the grantee, and the court erred in not defining the measure of damages as the difference between the market value of the property with this private way annexed and appurtenant thereto, and such value of the property as it would have been with a public alley along the north side of lot 6.
2. Error is also assigned in an instruction to the jury that “if the defendant told plaintiff, J. H. Talbert, that there was an 'alley' running east and west on the north side of out lot 6, and made no explanation as to whether such alley was a public alley or a mere private way, then and in that case the term 'alley,' under the circumstances of this case, would imply that it was a public alley; that is, a permanent right of way, open to the use of the public generally.” The statutes relating to platting a townsite or additions thereto authorize the dedication of alleys. Section 916 of the Code expressly requires that subdivisions “shall be divided by streets into blocks with alleys separating abutting lots, and such blocks, streets and alleys shall conform as nearly as practicable to the size of blocks and the width of streets and alleys in such city or town, and such streets and alleys shall be extensions of the existing system of streets and alleys thereof.” Such alleys, upon the acceptance of the dedication tendered by filing the plat, are under the authority of the cities and towns, whose councils may "widen, straighten, narrow, vacate, extend, improve and repair them”: Code, sec. 751. Of course, alleys may be private, and these are ordinarily such as have not been dedicated to the public use, and to which the general public is denied access or which are set apart for some particular purpose. A private passage or way is sometimes referred to as a private alley, especially when bordered by trees or otherwise defined or inclosed. But alleys in cities and towns usually are public, and the private alley therein 381 is exceptional. Density of population render them necessary for easy access to abutting properties, and, though sometimes confused with streets in attempts to define them, they are readily distinguishable. An alley may be so extensively used for public travel as to justify desig. nating it a “narrow street in common use," as was done in Bailey v. Culver, 12 Mo. App. 175, or referring to it as a road, as Sharett's Road, 8 Pa. 92: See, also, Kalteyer v. Sullivan, 18 Tex. Civ. App. 488, 46 S. W. 288. Their principal purpose is to furnish the owners of abutting lots and those dealing with such owners convenient access thereto: Dodge v. Hart, 113 Iowa, 685, 83 N. W. 1063. See, also, Milliken v. Denny, 135 N. C. 19, 47 S. E. 132; City of Chicago v. Borden, 190 Ill. 430, 60 N. E. 915. Alleys are not a substitute for streets, but serve as means of accommodation to a limited neighborhood for chiefly local convenience: Beecher v. People, 38 Mich. 289, 31 Am. Rep. 316. When one is dealing with lots in platted ground, and refers to an alley or alleys therein, the presumption is that he has reference to an alley or alleys included in the plat. Such ways are ordinarily public in cities and towns, and, when a deed conveying platted grounds refers to an alley, the fair inference is that an alley platted for public purposes is intended. The same is true in speaking of such an alley, for, if not qualified by the term “private,” the alley is conventionally understood, in its relation to plats in cities and towns, to mean the narrow way in common use for the convenience of owners of lots abutting thereon, and those dealing with them: Bailey v. Culver, 12 Mo. App. 175. See 2 Am. & Eng. Ency. of Law, 2d ed., 148. The instruction was correct.
3. The fifth instruction was rightly refused: Jamison v. Jamison, 113 Iowa, 720, 84 N. W. 705. The question as to whether decedent was charged with notice of the plat was disposed of in White v. Smith, 54 Iowa, 233, 6 N. W. 284. Whether the 382
cause of action based on deceit alleged might be maintained by plaintiff's was not raised in argument.
Because of the erroneous ruling with reference to the measure of damages, the judgment is reversed.
Implied Easements in a Street or Way Where Land Bounded Thereon is conveyed, are discussed in the recent note to Powers v. Heffernan, 122 Am. St. Rep. 216.
MCNIGHT V. PARSONS.
(136 Iowa, 390, 113 N. W. 858.] BILLS AND NOTES—Bona Fide Purchaser.-Knowledge that a note was given in consideration of an executory agreement of the payee which has not been performed will not deprive the indorsee of the character of a bona fide holder, unless he also has notice of such agreement and its breach. (p. 266.)
BILLS AND NOTES—Bona Fide Purchaser-Consideration.A bank receiving negotiable paper in consideration of credit upon its books, which eredit is not absorbed by an antecedent indebtedness or exhausted by subsequent withdrawals, is not a purchaser in due course of business. (p. 267.)
EVIDENCE-Written Instruments Parol Evidence to Vary.As between the original parties, the delivery of a written instrument which is in form a complete contract will not exclude parol evidence that such delivery was conditional and tbat it was not to become a binding obligation upon the maker until the performance or discharge of such condition precedent. (p. 268.)
BILLS AND NOTES—Conditional Delivery-Fraud-Defense. If a person to whom the conditional delivery of a note has been made puts it in circulation in violation of that agreement, such act is a fraud, and constitutes a good defense to an action thereon by one who is not a bona fide holder. (p. 269.)
BILLS AND NOTES—Bona Fide Purchaser-Burden of Proof. The title of any person who negotiates an instrument in breach of faith or under circumstances amounting to a fraud is defective, and the burden is cast upon the holder to show that he or some other person through whom he claims acquired the paper innocently. (p. 270.)
TRIAL-Direction of Verdict.—To justify a court in directing a verdict for the plaintiff, the evidence in support of the issues essential to a recovery must be so clear and undisputed that no question of fact is left to the jury. (p. 271.)
BILLS AND NOTESBona Fide Purchasers_Evidence.-The evidence of the cashier of a bank that he or the bank purchased a note before maturity is not necessarily sufficient to enable the court to say as a matter of law that the bank received it in good faith, nor does it negative notice or knowledge on the part of the other of. ficers of the bank, that the note was not received in good faith. (p. 271.)
TRIAL_Credibility of Witness. On the question as to whether a bank received a note in good faith, the credibility of the testimony of its cashier to that effect is for the jury to determine. (p. 271.)
BILLS AND NOTESNotice of Infirmity.--Notice which will invalidate a note in the hands of an indorsee is actual knowledge of its infirmity, or of sueh facts that his action in taking the paper amounts to bad faith, but if the facts shown have any fair tendency to show bad faith, the question remains one of fact, and not of law, especially if the evidence of fraud is sufficient to put the burden of showing good faith on the holder. (pp. 271, 272.)
WITNESSES' CREDIBILITY.-If testimony of a person is offered to overcome an unfavorable presumption or to satisfy the proof cast on the person offering it, the question of its credibility and weight is for the jury to determine. (p. 272.)
McElroy & Cox, E. J. Salmon, and J. B. Murphy, for the appellant.
Popham & Havner, for the appellee.
391 WEAVER, C. J. The note in suit, which is negotiable in form, was made and delivered to C. C. Bigler & Sons, who transferred the same by indorsement to the Farmers' Bank of Victor, Iowa, which, in turn, indorsed and transferred it to the plaintiff. The answer of the defendant is, in substance, that the note was given by him to Bigler & Sons for the purchase price of a certain thoroughbred cow upon a warranty and representation that the animal was a breeder, and upon a further agreement by Bigler & Sons that they would retain possession of her for several months, breed her to a certain named bull, and deliver her when with calf to the defendant. He further alleges that said warranty and representations were untrue, that the cow when delivered to him was not with calf, and was not a breeder, and therefore comparatively worthless. He also pleads that he delivered the note to Bigler & Sons under an agreement that said instrument would not be negotiated by them, but retained in their possession until it was ascertained whether the cow was with calf, and, in case she failed so to be, the note was to be void and of no effect, and returned to the defendant. Defendant also denies that plaintiff is a holder of the note in good faith and without notice of his defense thereto. The fact that the note was given for a cow that was warranted to be a breeder, and that it was thereafter to be bred and delivered, in calf, to the defendant, and that this warranty
was broken and the agreement was not performed, is shown without substantial controversy. The one question presented by this record is whether the plaintiff is a good faith holder of the paper against whom the defense is not available. As this question may involve both the first indorsement to the Farmers' Bank and the subsequent indorsement to the plaintiff, we will consider them in their order.
1. The evidence tends to show that the Farmers' Bank, which was the first indorsee, had notice of the consideration of the note and of the warranty or representation made by Bigler & Sons, breach of which is pleaded in the answer, and this knowledge the appellant insists was such notice as puts the indorsee upon inquiry, and deprives him of the character of a bona fide holder. The proposition here contended for is opposed to the decided current of authority. The