1 Iowa 560 | Iowa | 1855
Lead Opinion
(Isbell, J., dissenting). — The principal question presented to this court for adjudication, is as to the construction of the agreement between the parties. But little argument, and no authority, is adduced on either side.. On the part of the defendant, it is said that the law knows no better use of money than a safe investment at interest; that dower is but a usufruct, and that if complainant gets her interest, she gets the use of her money; or, in other words, the use of the land; and that a court of equity always directs a trustee having funds, to invest them at interest. A judge is not to shut his eyes, and ears, and mind, and be ignorant of those things which every one else knows. He may recognize the history and condition of the country and state, in which he lives and acts. And if so, he knows that the cash value of a dower estate, according to the tables, is
“ As tbe plaintiff would be entitled to make tbe most of tbe use of tbe land, if she took her dower in tbat; so she is entitled to make tbe most from tbe use of tbe money. Tbis is tbe meaning of tbe contract, which stipulates that she is ■to have her dower out of tbe said funds, either absolutely or for life, according to the opinion of tbe court as to what her dower would be in tbe said lots.” Tbe agreement is, in effect, to take her dower in tbe money, instead of tbe lots, so -as to relieve tbe purchaser of the latter. It is tbe opinion ■of tbe court, that the plaintiff is entitled to have tbe control and use ©f tbe money, giving security for its repayment, as required by tbe «judgment of tbe District Court.
An error is assigned in tbe rendition of tbe judgment for fen per cent, interest, from April, 1838, until paid. There Is not before us tbe papers, tbe record of a suit. There is only a case made in tbe court below, on tbe construction of tbe contract between tbe parties, with tbe judgment rendered. If there was a full case here, showing tbe rela- ' iion of tbe parties entirely, and under what circumstances Davis is a trustee, and bow, and for whom, it might appear -both equitable and legal, tbat Davis should be held to account for tbe profits of this portion of tbe funds in bis hands, but no such case is made — none such is presented to us -for -adjudication, Neither is there anything showing bow tbe court was authorized to render judgment for interest at ten per cent, whilst, on tbe other band, tbis is assigned for er« Tor. Tbe case stands before ns simply, as a judgment for ten per cent, interest on money due, without stipulation for tbat ■amount. We cannot, therefore, avoid considering it err©-
Dissenting Opinion
(dissenting). — I cannot concur in the above opinion, as far as interest on the funds-in the hands of Davis-heretofore, is concerned.. The agreement is meager, but it does appear that the property was sold by him “as trustee,” and that he is “the holder of the funds.” I infer, at least,that he has held them in trust, and that, too, for the rightful possessor. He should be called ,io account for interest actually received on plaintiff’s proportion of the fund. And in the absence of any showing-of the unfaithful execution of the trust, he should be decreed to pay such interest only, whether more or less.
