DEEMER, C. J., and GAYNOR and SAL condemnation of land for the purpose of Suit in equity to enjoin the contemplated INGER, JJ., concur.

At point 1 the coal company has maintain-1 of the coal mined by this company is shipped ed a shaft for several years, and has had a to distant points on the railway. It is probspur of railroad track extending from such ably true that practical coal mining, as carshaft south to the main line of the Rock ried on to-day, requires a rail haul for the Island Railroad. It now proposes to sink product. It is probably true also that a conshafts at points 2 and 3 and to extend its nection with a mere public highway is not of spur in each direction, forming a "Y," as in- great practical value to a coal mine. The dicated upon the map. For that purpose it fact remains that we must read the statute proposes to condemn a right of way across as it is. It presents no special difficulty of the necessary lands of the Fishers. Its right construction. Its real meaning stands out to condemn is challenged by the Fishers. The quite plainly. If it has become inadequate first action was brought by the coal company since its enactment to the later development against the Fishers to enjoin interference of mining enterprise, that is a question for with the survey of the ground by the coal legislative consideration and not for ours. company and its engineers. The other two suits were brought by the Fishers, respectively, each asking to enjoin the coal company from a purported condemnation on the ground that there is no statutory authority for the same. The one question in the case involves the construction of sections 2028 of the Code Supplement and 2031 of the Code, which are as follows:

outlet by condemnation or by private contract. It may be true, as claimed by the coal company in this case, that the owner without means of egress is in a more advantageous situation than is he who has one. That depends entirely upon the plans of such owner. These are his own and known to him alone. The statute has been proclaimed in advance, and the plans of the owner are made in its knowledge.

3. BILLS AND NOTES 368—“HOLDER IN DUE COURSE"-WHO ARE.

A note recited

Code Supp. 1907, § 3060a52, defines a holder in due course as one who, in good faith and for value, has taken a note regular on its face, before it was overdue, and without notice of dishonor or of any infirmity or defect in the that it was payable in "four title of the party negotiating. Section 3060a6, declares that the validity of a note shall not be affected because it is undated. Held, that the holder of the note was not a "holder in due course," for it was not complete and regular on its face; the omission not falling within the exception.

[Ed. Note.-For other cases, see Bills and Notes, Cent. Dig. §§ 949, 950; Dec. Dig. 368.

For other definitions, see Words and Phrases, First and Second Series, Holder in Due Course.]

We think the statute is not fairly capable of the construction contended for by appellant. If it were we would still be confronted by the rule that statutes conferring the power of eminent domain are to be strictly construed in favor of the private owner. McElroy v. Kansas City (C. C.) 21 Fed. 257, 260; Wise v. Yazoo City, 96 Miss. 507, 51 South. 453, 26 L. R. A. (N. S.) 1130, 1132, Ann. Cas. 1912B, 377; Ligare v. Chicago, 139 Ill. 46, 28 N. E. 934, 935, 32 Am. St. Rep. 179; Chica-viding that the person in possession has prima go & E. I. R. Co. v. Wiltse, 116 Ill. 449, 456, 6 N. E. 49; City of East St. Louis v. St. John, 47 Ill. 463, 467; Bishop v. North Adams Fire Dist., 167 Mass. 369, 45 N. E. 925; Rensselaer & S. R. Co. v. Davis, 43 N. Y. 137, 146.

The proposed mutilation of the Fisher farm, as indicated by the map and the legs of the "Y," and the fact that the benefits to accrue therefrom were only nominally public, is suggestive of the reason why the power to condemn should be doled with a sparing hand. This doubtless explains the amendment by the Twenty-Fifth General Assembly of the enactment of the Fifteenth General Assembly. We are clear that the statute as it is was correctly construed by the trial court. Its order is therefore affirmed.

4. BILLS AND NOTES 368 BLANKS RIGHT TO FILL IN.

Under Code Supp. 1907, § 3060a14, pro

facie authority to complete a note by filling up blanks, and that if any such instrument after completion is negotiated to a holder in due course, it shall be effectual in his hands as if the blanks had been filled in in accordance with the authority given, the indorsee of a note pay" is not a holder in due

able in "four

course; the blanks not having been filled.
[Ed. Note.-For other cases, see Bills and
Notes, Cent. Dig. §§ 949, 950; Dec. Dig.
368.]

5. BILLS AND NOTES 497-HOLDERS IN
DUE COURSE-BURDEN OF PROOF.

Code Supp. 1907, § 3060a55, declares that the title of one who negotiates a note in breach Section 3060a59 declares of faith is defective. that every holder is deemed prima facie a holder in due course, but when it is shown that the title of one of the persons who negotiated the instrument was defective, the holder has the burden of proving that he or some one under whom he claimed had acquired title in due course. Held, that on proof that a note was

DEEMER, C. J., and LADD and PRES- indorsed in breach of an agreement that it TON, JJ., concur.

In re PHILPOTT'S ESTATE.
LE CLERE v. PHILPOTT.
(No. 30025.)

(Supreme Court of Iowa. March 17, 1915.)
1. BILLS AND NOTES 537-NEGOTIATION-
DISHONOR.

should be returned for cancellation, plaintiff has the burden of proving that he was a holder in due course.

[Ed. Note. For other cases, see Bills and Notes, Cent. Dig. §§ 1448, 1675-1681, 16831687; Dec. Dig. 497.]

6. BILLS AND NOTES 525-ACTIONS-EVIDENCE-SUFFICIENCY.

In action on a note negotiated in breach of faith, evidence held not to conclusively show plaintiff a holder in due course.

7. BILLS AND NOTES 383-ENFORCEMENT RIGHT TO ENFORCE.

[Ed. Note.-For other cases, see Bills and Whether a demand note negotiated six Notes, Cent. Dig. §§ 1832-1839; Dec. Dig. months after date was negotiated an 525.] unreasonable length of time after issue, so that, under Code Supp. 1907, § 3060a53, the holder was not a holder in due course, held for the jury, in view of section 3060a193, requiring the facts of the particular case to be considered in determining what is a reasonable time.

[Ed. Note. For other cases, see Bills and Notes, Cent. Dig. § 1862-1893; Dec. Dig. 537.]

A holder of notes received as collateral is not entitled to enforce them after payment of the principal obligation.

[Ed. Note. For other cases, see Bills and Notes, Cent. Dig. § 956; Dec. Dig. 383.] 8. BILLS AND NOTES 537-ACTIONS-EVI

DENCE-JURY QUESTION.

In an action on notes admittedly received as collateral, the question whether the principal obligation had been paid held for the jury. [Ed. Note. For other cases, see Bills and Notes, Cent. Dig. §§ 1862-1893; Dec. Dig. 537.]

Appeal from District Court, Polk County; Hugh Brennan, Judge.

course.

Action upon two promissory notes. The ac-sonable time for the negotiating of a demand tion is in the form of a claim filed against the note is rather brief. Its dishonor is not long estate of decedent; the notes being the basis delayed. In the following cases, respectively, of the claim. The plaintiff was not the payee 2 days, 7 days, and 30 days were held to be of the notes, but claims as a holder in due a reasonable time: Field v. Nickerson, 13 A defense was pleaded, good as Mass. 131; Thurston v. McKenn, 6 Mass. against the payee. The trial court directed 428; Ranger v. Corey, 1 Metc. (Mass.) 369. a verdict for the plaintiff on the ground that In the following cases, respectively, 2% he was a holder in due course without notice months, 32 months, and 8 months have been of infirmity in either note. The defendant held beyond a reasonable time, and sufficient executrix appeals. Reversed. to dishonor a demand note: Losee v. Durkin, 7 Johns. (N. Y.) 70, 5 Am. Dec. 245; Stevens V. Bruce, 21 Pick. 193; Ayer v. Hutchins, 4 Mass. 370, 3 Am. Dec. 232; Bank v. Jenness, 2 Metc. (Mass.) 288. There is, however, no definite rule to be applied, and, among other elements, "the facts of the particular case" therefore, that the defendant was entitled to go to the jury on this question if upon no

Clinton L. Nourse, of Des Moines, for appellant. Mac J. Randall, of Cedar Rapids, and Read & Read, of Des Moines, for appellee,

EVANS, J. The defendant is the executrix of the estate of her husband, C. H. Philpott. On June 12, 1911, Philpott entered into a contract with the American-Canadian Land Company, a copartnership, for the purchase of certain Texas lands, and executed his

notes therefor to a total of about $7,000. Oc

are to be considered. 3060a193. It is clear,

other.

[2, 3] II. As to this particular note there is a further consideration that militates against Sec

the plaintiff as a holder in due course.

tion 3060a52 is as follows:

"A holder in due course is a holder who has taken the instrument under the following conditions:

"1. That the instrument is complete and regu lar upon its face.

"3. That he took it in good faith and for value.

tober 25, 1911, this contract was canceled by a written agreement and the land company agreed to return to Philpott his notes. The return was never made. Philpott died a year later. The claim herein is based upon two of said notes, one for $1,500 and the other for "2. That he became the holder of it before $1,000. The defense here indicated being it was overdue, and without notice that it had good as to the payee of the notes, the ulti-been previously dishonored, if such was the fact. mate question is whether upon this record it conclusively appears that the plaintiff was in good faith a holder in due course so as to require a directed verdict in his favor. This ultimate question depends upon two or three preliminary ones, viz.: (1) Was each note negotiable on its face? (2) Was the title of the person who negotiated the note to the plaintiff defective? (3) Upon which party was the burden of proof as to the good or bad faith of the plaintiff?.

[1] I. First as to negotiability. The $1,500 note is conceded to be negotiable upon its face and due in three years after date. The defendant challenges the negotiability of the other note. It was drawn payable "on or before four after date." It does not appear therein whether it was to become payable in four days, four months, or four years. The defendant contends that because of this

defect, the time of maturity was rendered uncertain and the negotiability of the instrument was thereby destroyed. On the other hand, plaintiff contends that inasmuch as no time of payment was actually expressed, it became a note payable on demand under section 3060a7. Adopting, for the moment, the plaintiff's contention at this point and reading the note as payable on demand, another difficulty confronts him. Upon the negotiating of such a note an unreasonable length of time after its issue, the holder is

not deemed a holder in due course. Section 3060a53. In this case the date of issue was June 12, 1911, and that of negotiating January 18, 1912. Under the authorities, a rea

"4. That at the time it was negotiated to him he had no notice of any infirmity in the instru ment or defect in the title of the person negotiating it."

This note was not "complete and regular” upon its face. It indicated upon its face that some word had been omitted in an attempted specification of the time of payment. If it were made to appear that the real contract between the parties was that the note should be payable in four months or four years, the instrument was reformable in equity at the suit of either party. This would not destroy the validity of the note, but would destroy its negotiability until such reformation was had. The manifest irregularity in this case is not one of the "omissions" specified in section 3060a6, which section is as follows:

"The validity and negotiable character of an instrument are not affected by the fact that:

"1. It is not dated: or

"2. Does not specify the value given, or that any value has been given therefor; or "3. Does not specify the place where it is drawn or the place where it is payable; or "4. Bears a seal; or

"5. Designates a particular kind of current money in which payment is to be made.

"But nothing in this section shall alter or consideration to be stated in the instrument." repeal any statute requiring the nature of the

[4] Section 3060a14 provides for the filling of blanks by the holder of an instrument duly signed within the scope of the holder's authority as follows:

material particular, the person in possession "Where the instrument is wanting in any thereof has a prima facie authority to com

plete it by filling up the blanks therein. And | 3060a52 above quoted. We find in the record a signature on a blank paper delivered by the little, if any, attempt to prove these condiperson making the signature in order that the paper may be converted into a negotiable in- tions affirmatively. The field of good faith strument operates as a prima facie authority to was involved with its possible ramifications. fill it up as such for any amount. In order, Likewise the field of notice. The plaintiff however, that any such instrument when comwas called to the witness stand by the depleted may be enforced against any person who became a party thereto prior to its completion, fendant, and testified as follows: it must be filled up strictly in accordance with the authority given and within a reasonable time. But if any such instrument, after completion, is negotiated to a holder in due course it is valid and effectual for all purposes in his hands, and he may enforce it as if it had been filled up strictly in accordance with the authority given and within a reasonable time."

"I am the claimant herein. In January, 1912, the American Canadian Land Company made two notes to me; one for $2,000 and the other for $4.700, and for these two notes, I claim to hold the notes Exhibits B and C as collateral. I now produce the two notes above referred to, the one for $2,000, is dated January 18, 1912, and marked by the reporter, 'Exhibit E' and the other for $4,700, of the same

Such instrument is thereby rendered nego-date, marked by the reporter 'Exhibit F.'" tiable. But it becomes so after the blanks are filled and not before. If the real intent of the parties in interest was to make this instrument payable in four years, it may be that the payee could have lawfully corrected the oversight by inserting the word "years"; and it may be, also, that this would have rendered the note negotiable to a holder in due course, as defined in the section above quoted. The question in that form is not now before us, and we need not pass upon it. We think it quite clear that this irregularity upon the face of the note prevented its taker from becoming a holder in due course. could be deemed a demand note unless the agreement of the parties was in fact otherwise. If otherwise, such fact was suggested by the incompleteness of the terms actually The controlling fact at this point is, not that the blank was not filled, but that it was filled imperfectly or irregularly. Though we grant that the note was presumptively good as a demand note, yet it was not "complete and regular" within the requirements of section 3060a52, and therefore was not negotiable.

Exhibits B and C, referred to in his testimony, were the notes in suit. The foregoing was his entire testimony as to the circumstances attending his acquisition of the notes. It is too clear for argument that such testimony did not conclusively meet the burden of proof laid upon him.

nsed.

It

[5] III. As to the $1,500 note the primary question is: Was the title of the payee defective when he negotiated the same to the plaintiff on January 18, 1912?

"The title of a person who negotiates an instrument is defective within the meaning of this act (Negotiable Instrument Act) when

*

*

or when he negotiates it in breach of faith or under such circumstances as amount to a fraud." Section 3060a55.

In this case the plaintiff took the note in question from the payee. The evidence was abundant to show that such negotiation was in breach of faith on the part of the payee. Section 3060a59 provides as follows:

For previous cases, see Bushnell v. Buck Bros., 161 Iowa, 362; Iowa National Bank V. Carter, 144 Iowa, 722, 123 N. W. 237; Arnd v. Aylesworth, 145 Iowa, 191, 123 N. W. 1000; McNight v. Parons, 136 Iowa, 399, 113 N. W. 858, 22 L. R. A. (N. S.) 718, 125 Am. St. Rep. 265, 15 Ann. Cas. 665; Bennett State Bank v. Schloesser, 101 Iowa, 573, 70 N. W. 705; Commercial Bank of Essex V. Paddick, 90 Iowa, 66, 57 N. W. 687; Frank v. Blake, 58 Iowa, 750, 13 N. W. 50; City Bank v. Green, 130 Iowa, 384, 106 N. W. 942; Citizens' Savings Bank v. Houtchens, 64 Wash. 279, 116 Pac. 866; Johnson County Savings Bank v. Rapp, 47 Wash. 30, 91 Pac. 382; Bank v. Walker, 82 Conn. 24, 72 Atl. 579; New England Mortgage Sec. Co. v. Gay (C. C.) 33 Fed. 649; Shellenberger v. Nourse, 20 Idaho, 323, 118 Pac. 508; Bluthentahl v. Columbia, 175 Ala. 398, 57 South. 814; Winter v. Nobs, 19 Idaho, 18, 112 Pac. 525, Ann. Cas. 1912C, 302; Parsons v. Jackson, 99 U. S. 434, 25 L. Ed. 457; Ireland v. Scharpenberg, 54 Wash. 558, 103 Pac. 801; National Bank v. Kirby, 108 Mass. 497; Merchants' National Bank v. Wadsworth, 166 Mich. 528, 131 N. W. 1108; Union National Bank v. Mailloux, 27 S. D. 543, 132 N. W. 168; Citizens' Sav. Bank v. Couse, 68 Misc. Rep. 153, 124 N. Y. Supp. 79; Union National Bank v. Winsor, 101 Minn. 470, 112 N. W. 999, 118 Am. St. Rep. 641, 11 Ann. Cas. 204; Park v. Winsor, 115 Minn. 256, 132 N. W. 264; Iowa National Bank v. Carter, supra. [7, 8] IV. It appeared in evidence that

"Every holder is deemed prima facie to be a holder in due course; but when it is shown that the title of any person who has negotiated the instrument was defective, the burden is on the holder to prove that he or some person the plaintiff claimed to hold the notes in under whom he claims acquired the title as a holder in due course."

suit as collateral only for the security of two notes of the American-Canadian Land [6] The defendant, therefore, having intro- Company for $2,000 and $4,700, respecduced sufficient evidence to show that the tively. These notes purported to have title of the payee was defective when the been executed January 18, 1912. Upon notice negotiation was made, the burden was there- served by defendant they were brought into by cast upon the plaintiff to show, notwith- court. They appeared upon their faces to standing, that he was a holder in due course have been paid and canceled. The plaintiff within the conditions specified in section | testified that they were not in fact paid, and