
    Dicken v. Morgan.
    1. Practice: exception to decree in equity: trial de novo.. In equitable actions triable anew upon appeal, it is not necessary to take an exception to a decree in order to entitle a party to a trial de novo in' this court.
    2. Contract: sale of land: partial failure of consideration. Where plaintiff sold land to the defendant, and for $100 of the consideration agreed to procure the establishment of a highway along one side of the land, which he failed to do, held, in an action to recover a balance of the purchase-money of the defendant, that he could not recover the $100.
    8. Highway: establishment of: irregularity: res adjudicata. Where plaintiff agreed to procure for defendant the establishment of a highway, but in the proceedings there was a slight irregularity, and afterwards, in an action against the road supervisor, there was a trial involving the validity of the road, and the opening of the same was perpetually enjoined, held that this must be regarded as an adjudication binding upon the public, and all-persons interested including the plaintiff, that no road was legally established. Adams, J., dissenting.
    
    
      Appeal from Ringgolcl District Court.
    
    Wednesday, July 12.
    Action to foreclose a mortgage. The defendant for answer avers a partial failure of consideration. The undisputed facts are that the defendant purchased of the plaintiff eighty acres of land; that he paid two hundred dollars in cash and gave his notes for $900, and a mortgage upon the land to secure them; that he paid the full amount except one note for two hundred dollars. The defendant claims that the price of the land was $1,000; that the plaintiff, however, as apart the trade agreed to procure the establishment of a highway across one side of the land; that in 'consideration that he would do so the defendant agreed to give him $100, making the whole amount, $1,100, or $900 in addition to the $200 paid down; he further claims that the plaintiff failed to procure the establishment of the highway.
    The plaintiff claims that the purchase price of the land was $1,100. He admits that he promised incidentally to procure the establishment of the highway, but denies that any part of the $1,100 was the consideration for doing so. He further denies that he has failed to procure the establishment of the highway.
    .The court found that of the $1,100 the sum of $1,000 was the purchase price of the land, and the sum of $100 was agreed to be paid as the consideration for procuring the establishment of the highway. The court also found that the plaintiff had failed to procure it, and rendered a decree accordingly. The plaintiff appeals.
    
      Lmigliiin and Campbell, for appellant.
    
      Asltren and Spence, for apjiellee,
   Rothrock, J.

I. No exception was taken to the decree, and the defendant insists that without such exception, no objection can be properly raised to it in this court. He cites Roberts v. Cass, 27 Iowa, 225. But that was an action at law. The case before us is an equitable action, triable anew upon appeal. In Phipps v. Penn, 23 Iowa, 30, a doubt was expressed whether under the Revision an exception to the decree in an equitable action should not be taken to justify a trial upon appeal. But it does not appear to have ever been so held. We see nothing in our present statute upon the trial of equitable actions which requires such exceptions to be taken.

II. We are inclined to think that the evidence sustains the defendant’s proposition that the sum of $100 of the $1,100 was to be paid to the plaintiff as the consideration for his agreement to procure the establishment of the highway. We come then to the question as to whether he performed his agreement. Proceedings were instituted for the . , establishment oí a highway, and they appear to have been regular except in one respect. A petition signed by the plaintiff and twenty-one others was filed in the auditor’s office. A commissioner was appointed to examine the proposed road and report. The commissioner made the examination, laid out the road, and recommended its establishment. A day was fixed by the auditor for final hearing. Upon the day fixed it appeared that no claims for damages had been filed and that no objections were made. The auditor accordingly made an order that the road be established. At the next meeting of the board of supervisors the action of the auditor was approved.

Before proceeding to consider the objection urged by the defendant to the validity of the establishment of the road, we will state that according to the abstract the road described m the record introduced in evidence does not appear to be the road in controversy, but a different road, running parallel to the road in controversy and a mile farther south. But no allusion is made to this fact by counsel on either side. They have assumed in their arguments that the road described in the abstract of the record is the road in controversy, and the witnesses seem to regard it as the same road. We have concluded, therefore, that a mistake was made in printing the abstract, that the word southeast was used where the word northeast was intended.

Proceeding upon this theory, we come to the consideration of the objection urged by the defendant against the validity of the establishment of the road. Section 934 of the Code provides that the auditor in appointing a day for final hear-in& aPPoint a day not less than sixty, nor mor® ^ian ninety days’ distant. The appointment was made February 27th, 1875, and the day appointed for final hearing was May 29, 1875. The auditor, probably not observing that Mai*ch has thirty-one days, appointed a day for final hearing ninety-one days distant. The defendant contends that this being so, the auditoi’, on the day appointed for final hearing, had lost all jurisdiction, and that his order made on that day was void, and that no subsequent approval of the board could make it valid.

Whether this position be correct or not, we do not think it necessary to determine. That the action of the auditor was irregular, and erroneous, to say the least, must be admitted. It appears that in the year 1877 one Cooper commenced an action to enjoin one Ramsey, the road supervisor, from opening the road in controversy, and that after the substitution of J. H. Morgan, as party defendant, there was a trial involving the validity of said road • and the opening of the same was perpetually enjoined.

This must be regarded as an adjudication, binding upon the public, and upon all persons interested, that no road was legally established. The proper party defendant was before the court to test the question as to whether or not the road was a legal highway. The plaintiff’s obligation bound him to procure a highway, not merely upon paper, but one which could be opened and traveled. In this he failed. It is no answer to this position to say that he was not a party to the action for the injunction. He, as well as the whole public, was represented by the supervisor of roads, and is bound by the decree. Besides it appears that he had actual notice of the pendency of the action, and the evidence pretty conclusively shows that he caused a notice to be served on Cooper to open the road through his land.- The road supervisor was the representative of the public, and the only person authorized by law to open the road, and the injunction is a complete bar to any further proceedings involving the validity of the road. The plaintiff’s obligation was to procure the establishment of the road, not subject to be defeated by any legal proceeding, either by injunction or certiorari. It having been judicially determined that the road cannot beopened} we think the defendant should not be required to pay the consideration he agreed to pay therefor.

Affirmed.

Adams, J.,

dissenting. — I think that the evidence shows that the plaintiff procured the establishment of a road according to his agreement. It is true the auditor erred in appointing for final hearing a day ninety-one days distant. But his action was not, I think, for that reason void. He had acquired jurisdiction to appoint the day, and the most, I think, that can be said is that his action by reason of the error in appointing the wrong day was subject to be annulled upon certiorari. If I am correct in this, it follows that the action, not being annulled, the road became a legal road. After the lapse of twelve months, the time within which a writ of certiorari could issue, the error was wholly immaterial. If, at that point of time, this action had been brought, the defendant could not have successfully maintained that the plaintiff had not procured the establishment of the road; there was, then, a point of time when the plaintiff had performed his agreement.. It did not become unperformed by what after-wards transpired, nor did the plaintiff become estopped from saying that he had performed his agreement. The action for1 an injunction brought by Cooper against Eamsey did not have that effect, because the plaintiff Dieken was not a party to it.  