*7173*715Some questions of fact are controverted, and it will be well to first determine them. We find that t-lie intervener was owner of a part of the land, •and as to the remainder a trustee, so that his authority is complete for the purpose of creating the agency of De Wolf for the sale of the land .and the collection of deferred payments therefor. We also find that all the money paid to De Wolf as rent, and on the purchase price, were paid to him as such agent. We may summarize by saying that we find the facts to be such as to sustain a preference of the claims over general conditions for all moneys actually paid to De Wolf, and by him retained, whether in the bank or otherwise. The controversy is mainly as to facts. The rules as to preference are so well settled.that there is little or no contention as to the law. The ground upon which such preferences have been sustained heretofore is that, when trust money was paid into- a bank for deposit, it was impressed with a trust character, the deposit being unauthorized; and, hence, that the estate, when the bank afterwards assigned, was enhanced to the amount of the deposit by the worngful act. of the trustee or agent, and that it was no prejudice to general creditors to take from the fund what should not have been placed there. See Independent Dist. v. King, 80 Iowa, 498; Plow Co. v. Lamp, 80 Iowa, 723. It appears in this case that the payment of two- thousand four hundred and eighty dollars, being the second annual-payment of two thousand dollars, and the interest on deferred payments, was paid by draft, and we think that payment is clearly within the rule of the cases cited. One Wells was the purchaser of the land, and the payments were made by him. As to- the four thousand dollars payment, at the time of the purchase, and the first -annual payment of two thousand dollars, with the interest on deferred pay*716mente, making two thousand' sis- hundred dollars, it appears that Wells had an account at the bank, and the payments were made by merely charging Wells with the amount of each payment, and giving the White estate, — which meant the previous owner of the land,— credit for the amount. A question is, does this difference as to facte, change the rule as to preference? It is thought that, until the money was actually paid to De Wolf, there was nothing to- impress with the trust character. We are not disposed to state a rule so broadly, but we incline to the view that it cannot be said, in this case, as to the two payments- thus made, that the estate was benefited by the changes made on the books; in other words, that any money was depositee in the bank as a result of the transaction. To be better understood, -let us suppose the changes had not been made on the books, and the assignment had followed. We cannot say that precisely the same funds would not have been there for the general creditors as are there now. It appears that the charges were made against Wells without reference to the state of his account. He may have had either a debit or credit balance at the time. The burden is with the intervener to show that the money was- actually received by the bank. If Wells had not the credit balance, so that, after the change on the books he was no> longer a debtor as to that particular transaction, there would be a serious doubt of the change on the books amounting to a payment, conceding that he authorized it One Haskins was the renter, and paid the rent claimed for, and the payments of rent were made in the same way, by merely charging Haskins on the books of the bank, and giving the White estate credit; and it is quite manifest that Haskins was, at all times, a debtor to the bank, and that no rent was really paid by him. The result was that De Wolf made himself a debtor to intervener for the rent, and Haskins a debtor to him. The same *717would be true as to the Wells payments, if there was no money, so as to make an actual payment by the change on the books. Whether or not an actual payment made in that way would bring the case within the rule, as to preferences, we do not decide; for, because of the failure to show that there were funds of the debtor to be applied in payment, we think the right to a preference does not exist.- It follows that the judgment should be so modified that the preference should apply only to the two thousand four hundred and eighty dollars payment. There is a motion by appellee to affirm the judgment, but there is no evidence of record of any service,, and hence we disregard it. With the modification suggested, the judgment will stand affirmed.
