88 Iowa 194 | Iowa | 1893
For several years the defendants, W. Taylor and A. E. Jackson, as partners, owned and carried on a banking business under the name of the Farmers’ Bank of Fontanelle. From the fifteenth day of September, 1884, until the tenth day of December, 1890, Abner Rood, as treasurer of the plaintiff, deposited in the bank money which belonged to the plaintiff. The deposits were made in his name, but the owners of the bank knew that the money so deposited belonged to the plaintiff. In November, 1890, Jackson sold his interest in the bank to Taylor. On the tenth day of the next month Taylor made an assignment for the benefit of his creditors to the defendant James H. Hulburt. The liabilities of the bank are about eighty thousand dollars, while the assets will not yield one-half of that amount. The balance due the plaintiff at the time of the assignment was two thousand, three hundred and three dollars and twenty-three cents, no part of which has been paid. Before the assignment was made, Taylor conveyed certain real estate and other property to James H. Hulburt, to H. Gross, and to others who had become sureties for him, to secure them against loss by reason of such suretyship. This action was commenced on the eighteenth day of December, 1890, after the deed of assignment had been recorded, and after the inventory of the property conveyed to the assignee had been filed.
The facts in the case first cited were substantially' as follows: The plaintiff had possession of certain' corn, by an agent, to ‘secure advances of money which’ it had made, and for which it was entitled to a lien. While holding such possession it sued out an attachment against the owners of the corn on account of the-debt for which the lien was given, directed the sheriff' to levy upon the corn, and received from him the-money realized from the sale of a portion of it. This court held that the lien of the plaintiff in that case-depended upon its possession of the corn, and that when the sheriff seized it under its direction the lien-was waived by the act of the plaintiff. In Crawford v. Nolan the plaintiff held a chattel mortgage on a stock' of merchandise. The mortgagor had previously sold and delivered the property which was mortgaged to Lederer, Strauss & Company, but after the execution of' the mortgage they caused the property to be attached as the property of the mortgagor. It was held that they could not thereafter defeat the mortgage by claiming to-be the owners of the property attached, for the reason that their act in attaching it was inconsistent with their-claim of ownership. The decision in both cases, was that a person can not claim property under two inconsistent rights at the same time. In this case the plaintiff was not in possession, and did not claim to be the., owner, of any of the property in controversy. The claim that- the bank and its owners were indebted to the plaintiff was not inconsistent with its right to have-the indebtedness established as a preferred claim against the property in the hands of the assignee. The plain-' tiff did not insist upon a right to any specific portion of that property, but claimed that the deposit was a trust fund which had been wrongfully used to increase the-
In this case it is shown by the intervenors that Taylor owned property before any of the money of the plaintiff was deposited in the bank, and to which the money so deposited‘contributed nothing in any manner, which is described as follows: “An undivided one-half of the west one-half of the east one-third of lot one, of block twenty-seven; an undivided one-sixth of' lot sixteen in block five; an’ undivided one-third of lot seven in block sixteen; an undivided one-half of lots seven and eight in block thirteen; an undivided half of lots three and four in block fifteen, • excepting forty feet off of them’ sold to a Mr. Ewing, all in the township of Fontanelle; also ■ an undivided one-sixth of the southeast quarter of the southwest-quarter of section fifteen; the southeast quarter of the northwest quarter, and the south half of the southwest quarter, of the northwest quarter of section twenty, all
We are of the opinion that it was erroneous. No' party to this action asked relief of that kind, and the order in question would not affect the rights of persons who are not such parties. There is no foundation for it in the pleadings, and it is not justified by the evidence. The plaintiff has commenced its action and made a showing which entitles it to immediate relief. The granting of that relief should not be postponed to a determination of the rights of persons who are not parties to this action, who have been less diligent than the plaintiff, and who may not have any just claim against the property in the hands of the assignee. Reference is made in an amendment to the petition of the plaintiff to suits which have been commenced, and to others which are likely to be commenced, for the recovery of trust funds, and it is stated that the property in the hands of the assignee may not be sufficient to pay in full all claims on account of such funds; but the statements were so made for the purpose of laying the foundation for a judgment against Taylor and Jackson for any balance which might be due plaintiff after'the funds in the hands of the assignee should be exhausted, and for an order for the sale of the attached property. They did not recognize the right of any one to funds in the hands of the assignee equal to that of the plaintiff. It is only necessary to say, in regard to such right, that, if it exists, that fact has not been shown in this case.
So much of the decree of the district court as is presented for review by the appeal of the plaintiff is reversed, and so much as is presented by the appeal of the intervenors is modified and affirmed.