of the fourth clause with the object and purpose of proceedings for "forcible and unlawful entry," or for "unlawful and forcible detainer." It is conceded that its words are broad and explicit enough to authorize a judgment in favor of Price and against Olds on the agreed statement of facts. Still we say the plaintiff cannot recover. Why? The whole of the justice's act must be construed together, so far as relates to the jurisdiction of justices of the peace. Section 8 of said act expressly declares that "justices of the peace shall not have cognizance of any action ** in which the title to real estate is sought to be recovered, or (in which the title to real estate) may be drawn in question." This language is negative and prohibitory, and cannot be made to yield to mere affirmative words in another portion of the same act. To give effect tc such affirmative words, apparently in contradiction, there *must be an express exception, or direct repeal. What, then, could the justice try? *70 "in The "complaint" made by Price is unquestionably good as a pleading, under section 162 of said article 13, for an alleged "unlawful and forcible entry and detention." Ante, *66. It utterly excludes the idea of a "lawful entry," and hence the case at issue is not within the second clause (or class) mentioned in section 158. Olds denied" each and every allegation in said complaint made and stated." Now, upon this issue, what must Price prove to entitle him to recover the possession? The court will take notice that section 159 says that "proceedings under this article may be had" in the four cases therein mentioned. The words, "proceedings under this article," must be construed as limiting the cases mentioned to the restrictions, and to require that they be prosecuted in accordance with the provisions of other sections of the article. The plaintiff so understood it, and framed his complaint under the first clause of section 162, to cover a case alleged to be within the first clause of section 158. If the plaintiff had been in the actual possession of the premises, and Olds had "unlawfully and forcibly" intruded into such possession, excluding Price therefrom, and such fact were shown, the plaintiff, without regard to the legal or equitable title to the land, would be entitled to have restitution of the premises; and this, too, even if Olds were the legal owner, and by ejectment could recover the possession, because, although entitled by law to recover possession, he will not be permitted to do himself right by force; and if he do, the law will wrest from him whatever right he may thus acquire by summarily ousting him from possession, and giving restitution to the party whose peaceable possession he unlawfully and forcibly invaded. Nichols v. Webster, i Chand. 205; Gates v. Winslow, 1 Wis. 654; People v. Skinner, 13 Ill. 287; Masterton v. Benjamin, 2 Caines, 98; People v. Leonard, 11 Johns. 504. tainer. *73 *VALENTINE, J. This was an action of forcible entry and deThe plaintiff commenced the action before a justice of the peace. Judgment was rendered for the plaintiff. The defendant appealed to the district court. The case was there tried on an agreed statement of facts, and judgment was there rendered against the plaintiff and for the defendant. To reverse this judgment the plaintiff now brings the case to this court. *74 The agreed statement of facts showed that James F. Joy was the original owner of the land in controversy, holding *the same by patent from the government of the United States; that he sold and conveyed said land to the Missouri River, Fort Scott & Gulf Railroad Company; that the said railroad contracted to sell the same to the plaintiff; "that the plaintiff by the terms of said contract became and was possessed of all the rights of his vendor," and that afterwards the defendant took possession of said land, and resided on and occupied the same without any authority, and against the will of the plaintiff. No question seems to have been raised upon the title of the plaintiff, or of his grantors. The agreed statement of facts shows nothing that any person could construe into an impeachment of Joy's title, or of those holding under him. The only question that seems to have been raised is whether the plaintiff, who was entitled to possession of said land, but who does not seem to have ever had actual possession of the same, could maintain the action of forcible entry and detainer. We think he could; and as the court below decided that he could not, we think the court below erred. The law upon this question is properly expressed in section 159 of the justice's act, (Gen. St. 809,) being the second section of article 13, entitled "Forcible Entry and Detainer." That section provides that "proceedings under this article may be had in all cases * * * where the defend ant is a settler or occupier of lands or tenements without color of title, and to which the complainant has the right of possession." Neither this section nor any other section of the law provides that before the plaintiff can maintain this kind of action he must have had actual possession of the property. All that seems to be necessary is that he should have the right of possession thereto. The judgment of the court below is reversed, and cause remanded to said court, with instructions to render judgment upon the agreed statement of facts for the plaintiff and against the defendant for restitution to the plaintiff of the property in controversy. (All the justices concurring.) *75 2. *JOHN B. JOHNSON and others v. LANY WEATHERWAX. January Term, 1872. 1. Attachment: Forthcoming Bond. A forthcoming bond in attachment, running to the officer and not to the plaintiff in the attachment, is valid. Sureties. Where the names of two as sureties appear in the body of a bond, and one of them signs the same in the presence, and leaves it in the possession of, the obligee, without saying anything restricting his liability, no presumption arises that such bond was not to be considered binding upon him until the signature of the other surety had been obtained.1 Error from Franklin district court. Weatherwax brought suit against Johnson, and sued out an order of attachment, which was executed by the sheriff of Franklin county. The attached property consisted of a lot of cattle, appraised at $442. To release this property Johnson executed to and in favor of the sheriff a forthcoming bond, with Thompson Jones as surety. Final judgment was rendered against Johnson for $307.08, and costs, and for the sale of the attached property, etc. Both Johnson and Jones refused to deliver the cattle to the sheriff, and the judgment remaining unsatisfied, Weatherwax brought this suit on said bond against Johnson and Jones. Johnson made no defense. Jones claimed that his execution of the bond was conditional. The action was tried at the August term, 1871, and the plaintiff had judgment against both the defendants for the amount of the former judgment, interest, and costs, and costs of this suit. *76 J. W. Deford, for plaintiffs in error. H. P. Welsh, for defendant in error. BREWER, J. Is a forthcoming bond in attachment, running to the officer and not to the plaintiff in the attachment, void? This is the first and substantial question in the case. *The statute provides that it shall run to the plaintiff. Code, § 199, (Gen. St. 666.) This, therefore, does not conform to the statute, and cannot be supported as a statutory bond. But it does not follow that this bond has no validity. It may be good as a common-law obligation. It is good as such, unless it contravene public policy, or violate a statute. Sheppard v. Collins, 12 Iowa, 570; Garretson v. Reeder, 23 Iowa, 21; Barnes v. Webster, 16 Mo. 258; Morse v. Hodsdon, 5 Mass. 314; Burrall v. Acker, 23 Wend. 606; Lewis v. Stout, 22 Wis. 234. In this last case the bond in controversy ran to the governor, and not to the state, as it was claimed it should. The court uses this language upon that question: "But if I am wrong in this, and the bond should, as is contended, have been executed to the state instead of the governor, then, though it is not good as The effect of such bond as a common-law obligation discussed in the opinion. 9 KAN a statutory bond, it is nevertheless binding as a voluntary obligation, upon which an action at common law may be maintained. The authorities on this point are too numerous to be cited; and, as is observed in one of them, there is no case to be found contradicting the position." The case from 23 Iowa, 21, was on a forthcoming bond in attachment. The condition did not conform to the statute. The court says: "Why not valid as a common-law obligation? The sheriff had lawful possession of property upon which the plaintiff had a valid lien. Defendants wished it released. To effect this they voluntarily offered to substitute their joint liability in the place of the property. To this the sheriff agreed. Defendants have received the consideration for their undertaking, viz., the release of the property. No law or no public policy was violated by the giving and accepting of this bond. And defendants, having received the consideration therefor, must be held liable if they have not kept its conditions." Could language be used more appropriate to the facts of this case? Both the officer and the defendants were parties competent to contract. Ample consideration was received for their obligation, namely, the release of the property from the possession of the officer. The con*77 tract of the officer involved no derelic*tion of duty. It was not a contract to omit the performance of some duty, as was the case in Cole v. Parker, 7 Iowa, 168, cited by counsel for plaintiffs in error; nor to do some act forbidden by statute, as in the case of Winter v. Kinney, 1 N. Y. 365. The officer had levied the attachment, had possession of the property, and thereby security to the plaintiff for such judgment as he might thereafter obtain. What further duty did he owe to the plaintiff? Only to preserve the property, or its equivalent in value, to answer the judgment. He surrenders the possession of that property to the defendant for that which he accepts as an equivalent. The plaintiff also accepts it as an equivalent. Can the defendants now be heard to deny that it is an equivalent? In another view, he places this property in the possession of defendants, as he would store it in a warehouse, (if merchandise,) or place it with a farmer, (if cattle.) Could the warehouseman or the farmer refuse to deliver it when demanded? And if they did refuse, and converted the property, could they not be compelled to pay the value? But we need not pursue this further. Both reason and authority unite in refusing to allow these defendants to reap the benefits of their contract, and then deny its validity. 2. A second important question arises on the instructions. John B. Johnson was principal in this bond, and Thompson Jones surety. In the body of the bond appeared the names of "John B. Johnson, Thompson Jones, and John R. Davis." Jones claimed that he signed it only upon condition that Davis should also sign as co-surety. Davis did not sign; hence Jones insisted that he was not bound. The bond was signed by both Johnson and Jones in the presence of the obligee, the sheriff. He denied that there was any such condition, and testified that Jones executed the bond absolutely, and without any agreement or stipulation whatever. Upon these facts three questions arise: First, was the instru ment so incomplete that it required the signature of Davis to make it a valid instrument? Second, does the presence of Davis' name in *78 the body of the instrument raise any presumption that it was *not to be binding on either until signed by Davis? And, third, if Jones made any such condition, what effect did it have on his liability? Upon the first question there is little room for doubt. Such an instrument is valid and binding upon the party signing, if executed by him absolutely and without conditions. So the district judge charged, and his charge was correct. No authorities need to be cited to sustain this proposition. Upon the second question the learned judge charged that "the mere fact that Davis' name is written in the body of the bond raises no presumption that Jones signed it upon condition that Davis would sign it." In other words, if Jones signed the bond, saying nothing, the law presumes that he intended thereby to bind himself absolutely and not conditionally. There is some confusion and contradiction between the authorities upon this question; but taking the instruction as applied to the facts in this case, we think it correct. The bond was executed by Jones in the presence of the obligee, the sheriff. Now, if under these circumstances he executed the bond without saying anything, it seems to us that the law will hold that he intended thereby to create an absolute obligation. Execution includes two things, signing and delivering. A bond may be signed by a party, and never become binding because never delivered. Here, without any dispute, the bond was signed by Jones in the presence and left in the possession of the sheriff. Then, as it seems to us, no presumption can arise to avoid liability. Something must be shown by the obligor or he will be held bound. In Parker v. Bradley, 2 Hill, 586, CowEN, J., says: "It has, I see, been holden in a late case that a signer cannot insist on a contrary intent, as qualifying the execution, unless it appear he declared at the time of signing that he would not be bound without the signatures of others named in the bond. If he execute it generally without such declaration he shall be holden, though he stand alone." See, also, Haskins v. Lombard, 16 Me. 143; Johnson v. Baker, 4 Barn. & A. 440; Cutter *79 v. Whittemore, 10 Mass. 442; Scott v. Whipple, 5 Greenl. 336. In Fletcher v. Austin, 11 Vermont, 449, the parties signing the bond directed that it should not be delivered until the other obligors named in the body of the bond should also sign. It was delivered in violation of this direction. The court held it no delivery. In Sharp v. U. S. 4 Watts, 21, a suit on a collector's bond, the law required that the bond be executed with two sureties. Two names appeared on the face; one only signed. The court held that "he had a right to believe that it was the intention of all the parties that the bond was to be taken in strict conformity with the act of congress," and that therefore his signature was conditional. In Bibb v. Reid, 3 Ala. 88, and Pepper v. State, 22 Ind. 399, the names of some sureties were obtained upon condition that others should sign, and then the bonds were delivered without such additional names. This was held no delivery. In McCramer v. Thomp |