tificate of sale told Mrs. Grimsley that he held the certificate, that her time for redeeming the property was about to expire, and that, if she had an interest in the property, she had better redeem at once. She answered that she had no interest in the property nor in the matter of redeeming it. The effect of the sale and sheriff's deed was to vest in the purchaser all the interest Mrs. Grimsley had in the property when the mechanic's lien attached. It is not true that the foreclosure proceedings were invalid because no one holding or representing the interest now claimed by George H. Messenger was made a party to them, and the cases of Butterfield v. Wilton Academy, 74 Iowa, 515; Brown v. Brown, 73 Iowa, 430, and Jones v. Hartsock, 42 Iowa, 147, cited by the appellees, do not sustain that theory. But in consequence of the omission the interest now held by Messenger was not in any manner affected by the foreclosure proceedings, and he is entitled to have it protected in this action. The fact that he holds the legal title to the property as security does not, however, entitle him to redeem from the sale made to the plaintiff's grantor, since that is not necessary to the protection of his interest. He cannot enforce against the plaintiff any right he could not have enforced against Mrs. Grimsley.

2

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II. The plaintiff asks to be subrogated to the right of Messenger in all the property described in the will on the payment of the amount due him. The value of the property acquired by the plaintiff is not shown. As already stated, the parts of lots which she owns sold in the year 1890 for one thousand six hundred and fifty dollars. In addition to paying that amount, Mrs. Grimsley agreed to erect upon the property a house which would cost not less than two thousand dollars, and she did erect upon it a house, the value of which is not, however, shown. It is fair to presume that the property is now worth more than two thousand dollars. The doctrine and practice of subrogation are of equitable origin. and are governed by VOL. 107 Ia-46

equitable principles. If the plaintiff is required to pay the entire amount due to Messenger, she will, by that payment, have obtained title to the property she now claims by virtue of the sheriff's deed for but a small part of its value. Whether Mrs. Grimsley has any interest in other property described in the will does not appear, but, if it be assumed that she does own it, we do not know of any equitable consideration which would justify the subjection of that property to any part of the debt due to Messenger, for the purpose of relieving the property claimed by the plaintiff from liability for the payment of all of it.

It is suggested that there may be other claims against the Keokuk property, but the evidence fails to show that such is the case, and the burden is on the plaintiff to establish her right to the relief she demands.

It follows from what we have said that the property which the plaintiff claims through the sheriff's deed is subject to the payment of the four hundred dollars due to Messenger, with interest, and the cause will be remanded to the district court for the purpose of ascertaining the amount due to him, and to provide for the transfer of the legal title to the property to the plaintiff upon the payment of the amount found due.-REVERSED.

GIVEN, J. (dissenting). I do not concur in the conclusion of the majority. Each party seeks to redeem from the other, not under the statute, but by virtue of the equities in his favor. I think the equities are with the defendant George Messenger. He was not a party to the foreclosure proceeding, and nothing has occurred to cut off or abridge his rights; therefore he has a right to protect the trust title, unless there are superior equities in favor of the plaintiff. Plaintiff's title is based upon a purchase at execution sale for the consideration of thirty-one dollars and seventy-two cents of a property worth a very much greater sum. While this gross inadequacy of consideration may not vitiate the sale, it is certainly proper to be considered in determining the

equities of the case. I fail to discover any equity in allowing the plaintiff to take this valuable property for the meager sum of thirty-one dollars and seventy-two cents. True, if defendant is allowed to redeem he takes it for much less than its value, but I am in no doubt that the disclaimer of Louisa Grimsley was in the interest of her nephew, the defendant, and in the belief that thereby he would take whatever interest she had in the property. I am impressed with the belief that the transfers by which plaintiff acquired title under the execution sale were not in good faith, but were made to place the title in a third person, so as to strengthen the right to redeem from the defendant. If this is correct, plaintiff has no greater equities than Evans & Sheppard would have; but, whether so or not, I think the equities are with the defendant, and that we should AFFIRM.

107 723

JAMES SCOTT et al., Proponents, v. SARAH J. HAWK et al., 117 741 Contestants, Appellants.

Wills. A will executed by a mark is "signed" within the meaning of 1 the law.

Signature: MARK. Where a testator signs by a mark it is not essential 3 that his name be written by one of the subscribing witnesses. PUBLICATON: Subscribing witness. A testator need not declare an instrument to be his last will and where subscribing witnesses to a will are dead or beyond the jurisdiction, proof of their hand 2 writing is compliance with the law as to due execution; and it need not be proved that the testator read over the will before signing it or was informed of its contents.

HARMLESS ERROR. Error in admitting evidence for the purpose of 4 establishing the execution of a will will not be reviewed on appeal where such execution was proved by other and competent evidence.

Appeal from Keokuk District Court.-Hox. D. RYAN,

Judge.

THURSDAY, DECEMBER 15, 1898.

1

WILL contest. The facts sufficiently appear in the same case reported in 105 Iowa, 467. After the evidence had been introduced, the court on motion of proponents, directed the jury to return a verdict for them. Contestants appeal.— Affirmed.

C. M. Brown and D. D. Hill for appellants.

Hamilton & Donohue, Woodin & Son, and C. H. Mackey for appellees.

LADD, J.-The closing part of the paper purporting to be the will of John Scott, deceased, is as follows: "Witness my hand this 15th day of June, 1886.

his "John X Scott." mark.

On the same paper, below the signature, is this attestation:

"The foregoing instrument was at the date thereof subscribed by John Scott, in our presence, and in the presence of each other, and he at the same time declared the same to be his last will and testament, and by his request we sign our names thereto as witnesses thereof, both in his presence and in the presence of each other.

"D. L. Fidler. "S. Harnd."

The subscribing witnesses died before the trial, but the genuineness of their signatures and the testamentary capacity of the decedent were established beyond controversy. As the testator was unable to write, he made his mark, the cross. Is a will thus executed. "signed," within the meaning of the law?

1

In Schouler Wills, section 303-306, it is said: "To write out one's own name in full is doubtless the safest course, as well as the most natural; for such compliance best indi

*

cates a rational mind, free will, and physical power at the date of execution. But, undoubtedly, the making of his mark by the testator will satisfy the statute; and that, too, as various cases rule, notwithstanding he was able to write at the time. If an illiterate but intelligent testator makes cross strokes with his pen upon the paper, the act of signature is his own; and so, too, where the hand of the testator, who is physically unable to subscribe without assistance, is guided by another. Wherever, in truth, the act is the testator's own act, animo testandi, though with the assistance of another, it is not necessary to prove any express request for assistance on his part." This, we think, a correct statement of the law, and fully sustained by the authorities. Thompson v. Thompson, 49 Neb. 157 (68 N. W. Rep. 373); Higgins v. Carlton, 28 Md. 115; Guthrie v. Price, 23 Ark. 396; Flannery's Will, 24 Pa. St. 502; In re Guilfoyle, 96 Cal. 598 (31 Pac. Rep. 553); Pool v. Buffum, 3 Or. 438; Jackson v. Jackson, 39 N. Y. 159; In re Jenkin's Will, 43 Wis. 610; Rook v. Wilson, 142 Ind. Sup. 24 (41 N. E. Rep. 311); Bebelot v. Lestrade, 153 Ill. 625 (38 N. E. Rep. 1056); Stephens v. Stephens, 129 Mo. Sup. 442 (31 S. W. Rep. 792); 2 Greenleaf Evidence (7th ed.), 674; 29 Am. & Eng. Enc. Law, 168.

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II. If the statute is complied with, nothing more in the execution of a will is necessary. Thus, publication, as such, is not required in this state. In re Hulse's Will, 52 Iowa, 662; In re Convey's Will, 52 Iowa, 199; nor is it generally, except when made so by the statute. As far back as Bond v. Seawell, 3 Burrows, 1775, Lord Mansfield remarked: "It is not necessary that the testator should declare the instrument he executed to be his last will." Osborn v. Cook, 11 Cush. 532. Indeed, it is not essential that the witnesses know the character of the instrument the signature to which they attest. Allen v. Griffin, 69 Wis. 529 (35 N. W. Rep. 23); Remsen v. Brinckerhoff, 26 Wend. 324; Dean v. Dean, 27 Vt. 746; Linton's Appeal, 104 Pa. St. 228; Dickie v. Carter, 42 Ill. 376; Leverett's Heirs v.