among others, that this could not be done in an action at law, and this is the only question we are called on to determine. Whether the plaintiff has such a title as will enable it.to recover is not in the case, although it has been argued by counsel. The certificate granted by the proper officers does not purport to conclusively determine whether the land passed under the grant or not. It is possible this would remain an open question if a patent had issued instead of the certificate, if it were claimed the land had passed under the swamp-land grant. Fremont County v. B. & M. R. R. Co., 22 Iowa, 91, and other cases. But this question is not properly before us, nor are we called on to determine whether the character of the lands could be shown in an action in equity for the purpose of defeating a title evidenced by patent or the certificate aforesaid.

That such evidence is not admissible for that purpose in an action at law was determined, as we understand, in French v. Fyam et al. 93 U. S. 109. This being true we are required to follow such ruling whether it fully accords with our views or not.

The only distinction between that ease and the present is that in the former a patent had issued, and in the latter the certificate. But this, we think, makes no difference. The government has acted, and vested at least an apparent right or title in the plaintiff's grantor, and we do not think such title or right, under the ruling in the cited case, can be avoided, in an action at law, by parol evidence. In reference to Railroad Company v. Smith, 9 Wall. 95, it is sufficient to say that it was distinguished in French v. Fyam et al.— whether sufficiently so it is not necessary for us to inquire. We simply follow the latest decision of the supreme court of the United States on a question as to which said court is the final arbiter.

Affirmed.

OLIVER TYSON, Appellant, vs. GEORGE B. REYNOLDS, Garnishee, Appellee.

Filed December 4, 1879.

Intervenor was a widower, who, after the death of his wife, kept house the same as before; his son and his son's wife living with him, paying no board or compensation. Intervenor had full charge of the household, employing a domestic. Held, that he was the head of a family, and entitled as such to hold property exempt from execution.-[ED.

Appeal from Webster circuit court.

The plaintiff caused garnishee process to be served upon defendant, claiming that he was the debtor of one C. F. Weston. The garnishee answered, admitting the indebtedThe creditor, Weston, intervened, claiming that the indebtedness accrued on account of personal services rendered by him within three months, and that he is the head of a family, and that the debt is therefore exempt from the garnishee process. Upon a trial to the court without a jury, judgment was rendered for the intervenor, the creditor, and the garnishee were discharged. Plaintiff appeals.

BECK, C. J. The intervenor, the creditor of the garnishee, was a widower. After the death of his wife he continued to keep house as he had done before. His son and son's wife lived with him, he having full charge of the household affairs, and they paying no board or compensation to him for their living. He employed a domestic. The son had lived with him before his marriage, and no change had been made. in their relations afterwards. The question for our determination is whether the intervenor is the head of a family, as contemplated by Code, § 3079. If he is, the debt is exempt under that statute. A family is "the collective body of persons who live in one house, under one head or manager. The relation existing between such persons must be of a permanent and domestic character, not abiding together temporarily as strangers. There need not of necessity be dependence or obligation growing out of the relation. Code, § 3073, provides that the word "family," used in the preceding section, does not include strangers or boarders lodging with the family. This would seem to imply that the term does include persons living in the family who are not strangers or boarders. The son and his wife were neither strangers nor boarders, but lived with the father, who provided for them as for children or dependents. We conclude that they, with his domestic, constituted intervenor's family. See Smith's Homestead Exemptions, §§ 520, 147, 68, and notes. It is not disputed that if there were a family in the intervenor's house he was its head. We think the circuit court correctly held that the intervenor was the head of a family, and the debt due from the garnishee was exempt from seizure for the intervenor's debt.

Affirmed.

HENRY SPINK, Appellant, vs. ELIZABETH MCCALL, Appellee. Filed December 4, 1879.

Where a decision in a cause had been made by the court, but no decree entered, held, that the allowance of an amendment to the answer was not an abuse of discretion. To entitle the holder of a mechanic's lien to make a statutory redemption from prior encumbrances, he must have a judgment thereon that is a lien on the premises. An action on a mechanic's lien was brought in form against one who was owner at the time of doing the work, but who parted with his title before suit, and his subsequent grantees, but service of notice was made only on the former owner. Judgment against him for the amount due was entered, and a decree of foreclosure of the lien against the property. Held, insufficient to entitle the holder of such lien to redeem from sale under prior mortgage.-[ED.

Appeal from Scott district court.

C. H. Eldridge was the owner of part of a lot in the city of Davenport, and on the eighth day of June, 1875, he executed a mortgage thereon to the defendant, McCall, to secure the payment of $800. Said Eldridge afterwards employed the plaintiff, Spink, to do certain painting upon the house and fence on said premises, which work was completed June 25, 1875. On the ninth day of July, 1875, said Eldridge made a general assignment of all his property, including said premises, to one D. Stephenson, for the benefit of his creditors, and on the first day of October, 1875, he conveyed the said real estate to said Stephenson by deed, duly executed and filed for record in the proper office. On the tenth day of July, 1875, Spink filed his claim for a mechanic's lien for $77 against Eldridge, and against Stephenson as assignee of Eldridge, and against said premises.

On March 4, 1876, McCall commenced an action to foreclose her mortgage, making said Eldridge, Stephenson and Spink parties defendant; and in the defendant; and in the same month she recovered a judgment against Eldridge for $944, and a decree of foreclosure against all of said defendants, and decreeing that whatever interest Spink had in the premises was junior to the lien of her mortgage. On the twenty-fourth day of June, 1876, the said premises were sold on special execution, issued on said decree, and said McCall became the purchaser for the sum of $400, and she received a certificate of sale from the sheriff. On the fifth day of August, 1876, Stephenson, acting in pursuance of an order of court, sold all the real estate conveyed by Eldridge to him at public sale, and McCall became the purchaser of the premises in controversy for the sum of $41, thereby acquiring all the interest of Stephenson as assignee, and she has held the possession of the premi

ses ever since. Spink commenced an action to foreclose his mechanic's lien on the sixteenth day of November, 1876, and in his petition named Stephenson, Eldridge and McCall as parties defendant. No attempt was made to serve Stephenson and McCall with notice of the action, and they were never made parties thereto. Eldridge and his wife accepted service of notice, but made no appearance nor defense, and on the eleventh day of December, 1876, a personal judgment was rendered against Eldridge for the amount of the mechanic's lien, and a decree of foreclosure entered against the property.

On the twenty-fourth day of February, 1877, Spink attempted to redeem from the McCall foreclosure sale, and tendered to the clerk of the court the sum of $427 for that purpose, which tender was refused by the said clerk. On the same day Spink made a tender of $427 to McCall, and demanded of her an assignment of the certificate of sale, which was refused by her, and on the same day he deposited with said clerk the said sum, for the use and benefit of McCall, and commenced this action to redeem the premises from the foreclosure sale.

The defendant, McCall, answered, denying plaintiff's right to redeem, because neither Stephenson, who held the legal title to the premises when the plaintiff filed his lien, nor McCall, who held the legal title at the time plaintiff commenced his action to foreclose his mechanic's lien, were in any manner served with notice of said action.

Plaintiff filed an amendment to his petition on the twentysecond day of September, 1877, setting forth that one year had elapsed from the day of sale, and that by reason thereof he had become the owner of the premises, and demanded the possession thereof. The defendant afterwards amended her answer, claiming that she had absolute title because her purchase from Stephenson during the six months next succeeding the sale operated as a redemption from the sale, and cut off all right to redeem by lien-holders.

The cause was tried and submitted to the court at the February term, 1878, and a decision made that the plaintiff was entitled to a decree as prayed. A memorandum of the decision was entered by the judge in the calendar of causes. At the same term the defendant filed a motion for leave to amend, by praying leave to pay off plaintiff's claim, or redeem from the plaintiff, as provided by the statute, in case the plaintiff is permitted to redeem from defendant, as prayed

in his petition. This motion for leave was continued to the next term, when it was sustained, and the answer was amended accordingly.

The defendant still insisted, however, that the plaintiff had no legal right to redeem, but she tendered the necessary amount therefor in case she should be required to redeem. The plaintiff replied, denying the right of defendant to redeem because the right of redemption expired June 24, 1877. The cause was again submitted to the court, and a decree was entered allowing the defendant to redeem from the mechanic's lien, and requiring the defendant to pay to the plaintiff, in addition to the amount due on the lien, 10 per cent. per annum interest on the money deposited by Spink with the clerk in redemption, while it so remained on deposit.

The plaintiff appeals from the order sustaining the motion for leave to amend, and from the decree allowing the defendant to redeem. The defendant appealed from so much of the decree as requires her to pay ten per cent. per annum interest on the deposit with the clerk, made by the plaintiff, and from that part of this decree which allowed the plaintiff to redeem from defendants.

W. H. Wilson and S. L. Glaspell, for plaintiff.

Clark & Heywood, Rose & Linsley and Bills & Block, for defendant.

ROTHROCK, J.-I. It is urged that there should be a reversal of the decree, because the court erred in entertaining a motion to amend the answer at the February term, 1878, and after the decision was announced, and a memorandum thereof made on the court calendar. We are unable to discover that this was an abuse of the discretion of the court. When the motion was interposed no decree had been entered. The motion was made at the same term at which the decision was made. Even the record entries of the court may be amended, or any entry expunged at any time during the term at which it is made. Code, § 178. Of course this must be for sufficient cause. If in this case it fairly appeared to the court that the ends of justice would be more nearly attained by entertaining the motion, such action was not erroneous.

2. The Code, § 3103, provides that "a mechanic's lien, before judgment thereon, is not of such a character as to entitle the holder to redeem." Did the plaintiff have such a judgment as entitled him to make statutory redemption? He had a judgment against Eldridge for the amount of his claim, and a decree of foreclosure against Eldridge establishing his lien