Whitaker v. Tiedemann
| Decision Date | 27 October 1925 |
| Docket Number | 36722 |
| Citation | 205 N.W. 468,200 Iowa 901 |
| Parties | J. WHITAKER et al., Appellants, v. ANNA TIEDEMANN et al., Appellees |
| Court | Iowa Supreme Court |
Appeal from Adair District Court.--W. S. COOPER, Judge.
ACTION in equity to establish a constructive trust. The opinion states the facts. The trial court dismissed the petition, and taxed the costs to the plaintiff, who appeals.
Affirmed.
Wilson & Kellam, for appellants.
A. M Fagan, for appellees.
DE GRAFF, J.
The plaintiff Whitaker, by action in equity, seeks to have impressed a trust on a certain fund in the possession of the defendant Citizens Savings Bank, and prays that said fund shall be applied on a judgment held by him against the defendant Anna Tiedemann. It is necessary to state the salient facts, to make understandable the nature of the action and the relation of the parties thereto.
On the 10th day of November, 1921, the plaintiff J. Whitaker recovered a judgment in the district court of Adair County against Mrs. Anna Tiedemann for $ 1,206.87 and costs. In an attempt to collect this judgment, which is valid and wholly unpaid, plaintiff caused an execution to issue, and by virtue thereof a levy was made December 14, 1922, by the sheriff on 2,379 bushels of corn contained in two cribs located on an Adair County farm occupied and partly owned by Anna Tiedemann. In making the levy, the sheriff went upon the premises, measured the corn in the cribs, posted notices of the levy on the cribs, and served the notice of levy on Mrs Tiedemann by personal service and leaving her a copy thereof. Notice of sale was given by personal service on Mrs. Tiedemann and by publication. On the day fixed, to wit, January 4, 1923, and in conformity to the notice, the sheriff offered the corn for sale, but no bids were received. The then acting sheriff (who by agreement is joined as a party plaintiff in this action), being unfamiliar with his duties in the premises, did not adjourn or postpone the sale for want of bidders, but returned to the county seat and communicated to the plaintiff's attorney what had been done. Thereupon, the sheriff was instructed to retain the levy and give a new notice of sale.
On January 16, 1923, the sheriff went to the home of Mrs. Tiedemann for the purpose of serving the new notice, and then and there discovered that the corn subject to levy had been shelled and removed from the farm on the preceding day. The sheriff testified:
Nothing is now claimed under the writ of garnishment.
The record further discloses that the corn in question was sold by Mrs. Tiedemann to E. W. Miller & Company, of Casey, and that a check payable to the order of Mrs. Tiedemann and Citizens Savings Bank, in the sum of $ 1,075.10, was issued January 16, 1923, by C. L. Knox, agent of the purchasing company. This check was indorsed by Mrs. Tiedemann and given to Fred Gray, accompanied by a written assignment to Gray of "all my right in corn sold to E. W. Miller & Company, and request that he pay interest on incumbrances on land and taxes with same." No consideration was given for this assignment to Gray, who was the president of the Citizens Savings Bank. It is conceded that the money was in the bank at the time of the trial.
It further appears that George W. Rutt, the legal guardian of the minor children of Mrs. Tiedemann, intervened in this action, and alleged that his wards were the joint heirs of an undivided 6/15ths of the land, and that Anna Tiedemann, the mother, held the crops grown upon the real estate in trust for the minor heirs, and also on behalf of the adult heirs of the deceased father, John Tiedemann.
The evidence warrants the finding that the title to said real estate was in the surviving spouse, Anna Tiedemann, and the ten children, as heirs, and that a contractual relation existed between the mother, the adult children, and the guardian of the minors, whereby the mother had control and management of the farm, and from the proceeds thereof was to provide for the minors and pay the taxes on said real estate and the interest on outstanding mortgages.
On February 28, 1923, the petition of plaintiff in this action was filed. On the conclusion of the testimony, the trial court dismissed the petition for the reason that "the release of the levy operated to discharge whatever lien he had on the corn, and so destroyed the very foundation of the...
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