King v. Dickson

• Decision Date: 22 May 1901
• Citation: 86 N.W. 263,114 Iowa 160
• Parties: KING v. DICKSON (BALDWIN, INTERVENER).
• Court: Iowa Supreme Court

114 Iowa 160

86 N.W. 263

KING

v.DICKSON (BALDWIN, INTERVENER).

Supreme Court of Iowa.

May 22, 1901.

Appeal from district court, Story county; B. P. Birdsall, Judge.

The plaintiff states as his cause of action that about May 16, 1896, Mary Baldwin and Marietta Maxwell were the owners of certain real estate in Story county, which they conveyed to defendant Dickson, in trust for themselves, and in part as security for certain liability he assumed for Mary Baldwin; that Dickson executed an agreement to Marietta Maxwell, by which he was to sell the real estate within a certain time, and pay one-half the proceeds to Marietta Maxwell, and in default of sale to reconvey to said Maxwell; that on the 20th day of May, 1897, he sold said real estate, and received therefrom $1,800, one-half of which belonged to Marietta Maxwell; that on the 23d day of July, 1897, she, for valuable consideration, sold, assigned, and transferred to plaintiff her said claim, and that the same is his property, and due and unpaid, wherefore he asks judgment against the defendant for $900. Defendant Dickson answered, admitting that he received the conveyance from Mary Baldwin and Marietta Maxwell; that he executed the agreement attached to plaintiff's petition, but says that his connection was as agent for Marietta Maxwell and Mary Baldwin; that as their agent he took the conveyance to sell the land, as well as to secure a loan of $500 to Mary Baldwin, he to receive $50 commission in case of sale. Further answering, he sets up a decree in the case of Smith, administrator, against Baldwin & Maxwell and others as a full adjudication against the right of the plaintiff to recover in this action. He alleges that after said decree he became the agent of Mary Baldwin, alone, for the sale of said land; that he sold it under said employment for $1,800; that he paid Mary Baldwin $875 of the proceeds, and to himself a commission of $50; and that he now has in his hands $875, and holds the same subject to the judgment and order of the court. Mary Baldwin intervened, alleging that she was the absolute owner of said lot 1, that she employed Dickson to sell the same, that he did sell it to J. O. French for $1,800, that he paid her $875 thereof, that he is entitled to $50 compensation, and that the $875 in his hands are due to intervener. She says that the plaintiff has no interest therein by assignment or otherwise. She asked judgment against Dickson for $875, with interest, and that plaintiff's petition be dismissed. As an amendment to her petition of intervention, Mary Baldwin alleges that Marietta Maxwell had no interest in the proceeds of said sale; “that the title and right of said proceeds in the hands of N. W. Dickson was fully settled and determined by the adjudication of this court in the case of I. L. Smith, Administrator, vs. Baldwin & Maxwell, F. M. Baldwin, J. W. Maxwell, Mary Baldwin, Marietta Maxwell, and N. W. Dickson, in which case the title to said property was by decree and judgment found to be the absolute property of intervener, Mary Baldwin; that plaintiff's assignor was a party thereto, and had full notice of such proceedings, and no appeal was taken therefrom.” She alleges that because of the facts stated the plaintiff has no interest in the subject-matter of this case, and that the proceeds of the sale in the hands of Dickson are her sole property. The plaintiff, for answer to the petition of intervention, admitted that Dickson had sold the land for $1,800, that he had paid intervener $875, that plaintiff claims the balance, and that there is $875 in the hands of Dickson. Plaintiff answered the intervention as follows: “Comes now the plaintiff in the above-entitled cause, and for answer to amendment to petition of intervention says that he denies generally and specifically each and every allegation contained in the defendant's amendments; wherefore he prays for the verdict as in his first petition.” The cause was submitted to the court, and the court found that the plaintiff, King, is entitled to recover of the defendant, Dickson, said $875, and judgment was rendered accordingly, and intervener's petition was dismissed, and from this judgment the defendant and intervener appeal. Affirmed.

Given, J., dissenting in part.

Geo. W. Dyer and E. H. Adison, for appellants.

Funson & Gifford and Dyer & Stevens, for appellee.

GIVEN, J.

1. The questions to be considered involve an inquiry into the title to the lands for which the money in dispute was realized. The facts concerning the title are substantially as follows: On October 25, 1888, Mary Guthrie Brodie executed her will, providing as follows: “I give, devise, and bequeath my estate and property, real and personal, after my debts are paid for sickness and funeral expenses, to my sister, Isabelle Guthrie, for her maintenance as long as she may live, and at her death, after any necessary debts occasioned by her sickness and funeral expenses are paid, I give, devise, and bequeath my estate and property, real and personal, as follows; that is to say.” Following this are six specific devises of money in the sum of $100 each to persons named, and then the following: “To Baldwin & Maxwell, Story county, Iowa, a firm composed of F. M. Baldwin and J. W. Maxwell, I give, devise, and bequeath lot one (1) in the southeast quarter (1/4) of the southwest quarter (1/4) of section twenty-two (22), township eighty-two (82) north, of range twenty-two (22) west of the fifth (5) P. M., Iowa, containing two and six hundredths (2.06) acres, as the same is known and designated on a recorded plat now on file in the recorder's office of Story county, Iowa. And, after the above-named parties have been paid the several amounts bequeathed to them, I desire that the balance of my property, personal and real, be equally divided between David Guthrie, of Montreal, Canada, Mary Guthrie, of Montreal, Canada, and Mary Peters, of Carmonistee, Forfeshire, Scotland.” Mrs. Brodie died June 2, 1891. Her will was probated in September following, and Isabelle Guthrie took possession of the property, and continued to occupy and use the same until her death, in February, 1895. On October 25, 1891, Baldwin & Maxwell made a deed of general assignment to Jay A. King for the benefit of their creditors of their property, real and personal, “in which they have any right or interest whatsoever; the same being more fully and particularly described and enumerated in the schedule thereof to be hereto annexed.” On July 1, 1892, Baldwin & Maxwell made settlement with their creditors, J. V. Farwell & Co. advancing the money for that purpose, and taking a conveyance from Jay A. King, assignee, to H. J. Liggett, as trustee, to secure the advance, which conveyance was approved by the court. This conveyancedescribes specifically the real estate conveyed, and concludes as follows: “The intention being to hereby convey to the said Howard J. Liggett all the real estate in Story county, Iowa, received by him by virtue of the deed of assignment above referred to, excepting only such as has been by him conveyed, as such assignee, to other parties previously to this date.” Mr. Liggett executed to Baldwin & Maxwell a writing agreeing to return to them any surplus after selling sufficient of the property to reimburse Farwell & Co. On October 31, 1894, Mr. Liggett, as trustee, sold and conveyed to Mary Baldwin, of the property received by him from the...