CASES IN THE SUPREME COURT IOWA. PHILLIPS v. DIPPO. [93 IOWA, 85.] NEGOTIABLE INSTRUMENTS-INDORSEMENT.-WAIV. ER of presentment for payment, protest, and notice of nonpayment, contained in the body of a note, is effectual as against an indorser thereof in blank who is also the payee. W. H. Stivers, for the appellant. V. Drahos, for the appellee. 85 ROBINSON, J. The note in suit was made payable to defendant or bearer, and contains the following: "The makers, indorsers and guarantors of this note . . . . hereby waive presentment for payment, notice of nonpayment, protest, and notice of protest, and diligence in bringing suit against any party thereto." Before the maturity of the note, the defendant wrote his name thereon, and transferred it, and it is now owned by the plaintiff. The grounds of the demurrer are, that the defendant is an indorser of the note, and the petition fails to show that the note was duly presented for payment, that payment was refused, and that the defendant was notified of the nonpayment. 86 The question we are required to determine is, whether the waiver of presentment for payment, protest, and notice of nonpayment, contained in the body of the note, is effectual as against an indorser in blank, who was also the payee. It is contended by appellant that such an indorsement is a new, independent written contract between the indorser and indorsee, with conditions implied by law, and that it has no reference to a provision in the note of the character of that in question. It was said in Davis v. Miller, 88 Iowa, 114, that "an indorsement constitutes a new agreement with the indorsee, by which the indorser agrees that the instrument will be paid at maturity, and, if it is not so paid upon proper demand, that he will pay it if duly notified of the default"; and it was held that the blank indorsement of a negotiable promissory note payable by its terms at a designated place did not require the indorser, when his liability became fixed, to pay the note at that place. The reason for that conclusion was, that such indorsements are governed by the law of the place where they are made, and create obligations which are to be performed there, or generally, and not at a place specified. In other words, it was held that implied obligations created by the blank indorsement relate to the time and amount, but not to the place, of payment. There was nothing in the body of the note under consideration in that case which referred in terms to the indorser. None of the authorities relied upon by the appellant are applicable to this case, for the reason that in none of them did the instrument in question contain a provision in any respect like the one we have set out. The part of that which referred to indorsers and guarantors was without force as between the maker and payee, and was designed to take effect only if the note should be indorsed. When the defendant wrote his name on the back of the note, 37 and transferred it without in any manner qualifying the effect of the indorsement, he necessarily became a party to the agreement of waiver, and was not entitled to the demand and notice which an ordinary indorsement in blank requires. And this result does not in any manner depend upon the fact that he was the payee of the note. It is said in Tiedeman on Commercial Paper, section 363, that "if the waiver is put in the body of the instrument, it enters into and forms a part of the contract of everyone who signs his name to the paper, whether as drawer or indorser." In 2 Daniel on Negotiable Instruments, section 1092, the law is stated as follows: "Sometimes the waiver is embodied in the instrument itself, and in such cases the waiver enters into the contract of every party who signs it, whether as drawer, maker, acceptor, or indorser. Thus, when the words 'presentation and protest waived,' or 'notice and protest of nonacceptance and nonpayment waived,' are written in the bill, they are binding, not only upon the drawer, but also upon the indorsers, who are in effect new drawers, and who become parties to the waiver in becoming parties to the bill. Clearly, this is the case where such waiver expressly includes the drawer and indorsers." The rule of these authorities has support in the following cases: Lowry v. Steele, 27 Ind. 170; Bryant v. Lord, 19 Minn. 405; Farmers' Bank v. Ewing, 78 Ky. 266; 39 Am. Rep. 231; Bryant v. Merchants' Bank, 8 Bush, 43; Smith v. Lockridge, 8 Bush, 431. See, also, Woodward v. Lowry, 74 Ga. 148; Studebaker v. Ryan, 46 Kan. 273. We conclude that the demurrer was properly overruled, and the judgment of the district court is affirmed. NEGOTIABLE INSTRUMENTS-INDORSEMENT IN BLANKEFFECT OF.-One who, being the payee of a note, indorses it before it is signed and delivers it to the maker to sign, so as to enable him to obtain money for their joint benefit, is estopped from denying the authority of the maker to sign it in the name of a partnership of which he is a member: Montgomery v. Crossthwait, 90 Ala. 553; 24 Am. St. Rep. 832; Moore v. McKenney, 83 Me. 80; 23 Am. St. Rep. 753, and note. See, also, Parshley v. Heath, 69 Me. 90; 31 Am. Rep 246; Farmers' Bank of Ky. v. Ewing, 78 Ky. 264; 39 Am. Rep. 231. In the latter case there was printed on the back of a note: "The indorsers waive presentment, protest, and notice of dishonor." The payee Indorsed his name in another place entirely disconnected from the memorandum, and the note was transferred. Held, that the memorandum was part of his contract. MANN V. CORRINGTON. [98 IOWA, 108.] HOMESTEADS-EXCHANGE OF.-A homestead right may exist in vacant land for which a former homestead has been exchanged, or which has been purchased with the proceeds of such homestead, and is held in good aith for use as a home. The homestead character of such land is not affected by the fact that it cannot be improved, and a dwelling-house erected thereon, from the proceeds of the former homestead. C. C. and C. L. Nourse, for the appellant. J. L. Dana and J. A. McCall, for the appellee. 108 ROBINSON, J. On the thirty-first day of August, 1891, the plaintiff conveyed to the defendant and his wife four lots in Mann's first addition to Oak Park, and received in payment a mortgage on the lots for five hundred dollars, and a conveyance of property in the town of Nevada, which the grantors then occupied as a homestead. After the transaction was closed, the defendant visited Des Moines, and, while there, signed an instrument in writing, of which the following is a copy: "Des Moines, Iowa, Oct. 14, 1891. "This memorandum will witness that L. M. Mann agrees to convey 109 to Benton Corrington, by a good warranty deed, the west forty-two (42) feet of lot one (1) of Bates addition to North Des Moines, Iowa, and the east ten (10) feet of lot one (1), Hedges addition to North Des Moines, Iowa. Said Corrington is to assume the payment of a mortgage for $1,000.00, and interest from July 1, 1891, at 7 per cent interest; and said Benton Corrington agrees to give a mortgage, which shall be second to the $1,000.00 above described, to said L. M. Mann, on said described property for $1,200, to be paid as follows: $400 in one year, $400 in two years, and $400 in four years, with eight (8) per cent interest, payable semi-annually. Said Corrington is to convey, by a good warranty deed, lots 91, 92, 93, and 94, of L. M. Mann's First addition to Oak Park, subject to a mortgage of $500.00 and interest. This conveyance to be made to L. M. Mann or order, and both parties are to furnish abstracts of title at the expense of each. This contract is to be fulfilled and completed at Des Moines, Iowa, said deeds to be passed on or before twenty (20) days." This action was brought to recover the sum of three thousand seven hundred dollars, as damages alleged to have been caused by the failure of the defendant to do what the instrument required of him. The defendant denies that he is in any manner indebted to the plaintiff, and alleges that the writing upon which a recovery was sought was to take effect and be in force only in the event that his wife should approve it; that it was not so approved; and that, on the day after it was signed by the defendant, he and his wife notified the plaintiff by mail that she disapproved it, and would not execute the instruments necessary to carry it into effect; and that the negotiation was at an end. The defendant further alleges that the four lots in question were obtained by himself and his wife in exchange for their homestead, for the purpose of being used as a homestead, and have 110 always been held for that purpose. The jury were instructed to first determine whether the lots in question were held by the defendant and his wife as a homestead, and, if they were so held, to return a verdict for the defendant. The jury returned a special finding to the effect that the lots were held for homestead purposes, and a general verdict for the defendant. 1. Section 1990 of the code provides that a conveyance or encumbrance of a homestead by the owner "is of no validity unless the husband and wife, if the owner is married, concur in and sign the same joint instrument." If the lots in question were impressed with the homestead character when the writing in suit was signed, it was of no validity, for the reason that its provisions were not separable, and it must be held valid or invalid as a AM. ST. REP., VOL. LVII-17 whole. It is not questioned that the lots subject to the mortgage were obtained in exchange for the homestead of the defendant and his wife. A homestead once acquired may be exchanged for another, and, when that is done, the homestead privileges and rights attach to the new as they formerly did to the old homestead: Code, secs. 2000, 2001. In this case, the lots had not been occupied by the defendant and his wife, and were unimproved when this writing was signed; and they had the right to remain in their old homestead in Nevada until the first day of November. Both testified that they obtained the lots for the purpose of building on them, and making them their homestead; and, while there is evidence which tends to show that they were ready to abandon their purpose, yet the jury were warranted in finding that they had not done so. It is said, however, that a homestead must include the house used by the owner as a home, and that the homestead right cannot attach to unimproved lots. It is well settled that, as a general rule, a mere intention to occupy property as a home 111 does not give to it the character of a homestead before it is actually occupied for that purpose: Christy v. Dyer, 14 Iowa, 438; 81 Am. Dec. 493; Elston v. Robinson, 23 Iowa, 209. But that rule applies especially to the original acquisition of a homestead. It is not of universal application to new homesteads acquired in exchange for old ones. Thus, in State v. Geddis, 44 Iowa, 537, it was said that as the statute gives an absolute right to the owner of a homestead to exchange it for another, without providing how it shall be done, a reasonable construction to effect the object of the statute must be adopted. It was further said that "the length of time intervening between the sale of the old and the acquiring of the new, is not essentially a controlling circumstance. A considerable lapse of time may not be inconsistent with an honest intention to change the homestead." In that case, a homestead had been sold, a mortgage on it had been taken to secure the larger part of the purchase price, the mortgage was foreclosed, and the premises were sold under the decree of foreclosure. Redemption from the sale was made by paying the required amount to the clerk of the court about two years and a half after the original sale of the homestead; yet this court held that, as the intention to change the homestead was properly shown, the money thus paid was exempt from garnishment in the hands of the clerk. In Cowgell v. Warrington, 66 Iowa, 666, it was held that the law would secure to the owner of a homestead a reasonable time in which to exchange it for another, and in support of that conclusion it was said: "If the |