Smith v. Walker, 49 Iowa 289

Smith v. Walker

49 Iowa 289 | Iowa | 1878

Rothrock, Ch. J.

1. practice, finding of fact: evidence. The action in chancery for an injunction was commenced on the 17th day of January, _ - . J 1872. It was prosecuted m the names of the Dubuque, Bellevue & Mississippi Railway Company, and James M. Walker, trustee, as plaintiffs. The final decree was entered in said cause for the plaintiffs’ on the 27th day of December, 1873. At the commencement of the suit Walker held the land as trustee to indemnify James E. Joy, who had indorsed the notes of the company for one hundred thousand dollars. Pending the suit in chancery, and during the time that the other service was being performed, the notes which Joy had indorsed were paid. The trust' deed was not cancelled, but another deed was made to Walker on the 1st day of April, 1873, which purported to convey the same lands to him as trustee for the several stockholders of the River Railroad Construction Company. Upon what consideration this deed was made does not appear. It does appear, however, that the lands were to be by the trustee divided among said stockholders.

The question of fact in the case is, whether Walker, as trustee, employed the plaintiff to perform the service which he did perform in protecting the title to the lands for the benefit of the parties in interest. Upon this question there is a direct conflict in the evidence.

J. K. Graves testifies to facts which, in our judgment, show conclusively that Walker, before and after the execution of the *293last trust deed, not only recognized the fact that plaintiff was engaged in protecting the title to the lands, but actually advised, counseled, and directed the proceedings that were had. Walker explicitly denies all participation in the matter, and insists that whatever employment plaintiff had was for the railroad company alone.

This being the state of the proof we cannot interfere with the finding of fact by the court below. It must stand as the .verdict of a jury.

2. trust: liabilty of trus piopeit}. II. Conceding then that plaintiff was enqployed by Walker as trustee, is he entitled to an adjudication subjecting the trust property to the payment of his claim ? ^ ^ urgecx ^ counsel for appellants that when a trustee incurs a liability in regard to the preservation of the trust estate he is personally liable, and may charge such an expenditure to the trust fund or estate. This may be conceded. But in this case Walker, the trustee, denies the employment of plaintiff, and we think the proper parties were before the court to have that question adjudicated. It having been adjudged that plaintiff was employed by the trustee, why should the latter be heard to complain because the amount found to be due was ordered to be made from the trust property, and not adjudged against him personally ?

We can see no good reason for such a claim. This is an adjudication directing the appropriation of sufficient of the trust estate to pay the claim of the plaintiff, and we think the court properly directed execution to run against the lands held in trust upon which the attachment had been levied.

Affirmed.

Adams, J., dissenting.