Scruggs. An estoppel by conduct is also pleaded by the defendants based on the allegation that at the time Scruggs extended the credit on which his judgment was founded Catherine Moore permitted him to rely on Siddie Moore's 694 apparent ownership of other property, and fraudulently remained silent when equity and good conscience would require full disclosure of the true condition of affairs.

Catherine Moore is a widow, whose husband departed this life many years before any of the transactions in question arose. Before his death her husband deeded to her a valuable farm, which she sold some years after his death, receiving therefor a large sum of money. After this sale, she negotiated for eighty acres of land known in this record as the "O'Connor farm. The purchase thereof was made, the deed being to Siddie Moore, who held the title for a short time only, and then conveyed to her mother. It is on this transaction that the principal controversy in this case hinges, the appellees contending that the O'Connor land was in fact purchased for Siddie Moore and paid for with her money, while the appellant contends that she bought it and paid for it with a part of the money received for the farm that she had previously sold, and that the title was taken in the name of her daughter for temporary purposes only.

A careful examination of the record convinces us that the appellant's contention is sustained. While there seems to have been some disposition on the part of the daughter to take the title in herself regardless of her mother's wishes, the evidence satisfactorily shows that the mother in fact furnished the money to pay for the land. She had means, and it is conclusively shown that the daughter had nothing of her own. The fact that the daughter had acted as the agent of her mother, and had been permitted to make deposits of her mother's money in her own name, is clearly shown, and accounts for the necessity for her presence when payment for the O'Connor land was made. It is undoubtedly true that the land involved in this suit was paid for with money received from the sale of the O'Connor farm to Mr. Sarvis. Indeed, we do not understand that the appellees contend otherwise; their contention being, as we understand their argument, that the conveyance of the O'Connor land and of 695 the land in question were advancements made by the plaintiff to her daughter. The trouble with this contention

as to the O'Connor land is that the title was afterward transferred to the mother, and the presumption of an advancement was thereby entirely destroyed.

As to the land in suit, it is conclusively shown that the daughter took the title in herself without the knowledge of her mother, and hence the rule that, where a parent furnishes the purchase money and takes the conveyance in the name of a child, the law, in the absence of a showing to the contrary, presumes an advancement, does not apply. If an agent invest his principal's money in real estate with his knowledge, but takes the title in himself without the consent of his principal, there will be a resulting trust: 1 Perry on Trusts, sec. 135. The record fails to show any advancement to Siddie Moore. It is well settled that a judgment is a lien only on the interest of the judgment defendant: Atkinson v. Hancock & Co., 67 Iowa, 452, 25 N. W. 701; Welton v. Tizzard, 15 Iowa, 495; First Nat. Bank v. Hayzlett, 40 Iowa, 659.

While it is shown that Mr. Scruggs extended credit to Siddie Moore while she held the title to one forty of the O'Connor eighty, the evidence wholly fails to prove that the appellant knew anything of their dealings, or knew that he had obtained a judgment against her daughter until after the land in suit had been conveyed to her by her daughter.

Our conclusion is that the plaintiff is entitled to the relief demanded, and it is so ordered. The judgment is reversed.

The Purchase of Land by a Father in the Name of His Children is presumed to be an advancement, and the equitable as well as the legal title vests in them: Bogg v. Roberts, 48 Ark. 17, 3 Am. St. Rep. 211. If a parent purchases land in the name of his son, the purchase is deemed prima facie an advancement, so as to rebut the presumption of a resulting trust: Kern v. Howell, 180 Pa. 315, 57 Am. St. Rep. 641.

MCLENNAN v. FARMERS' SAVINGS BANK.
[131 Iowa, 696, 109 N. W. 291.]

BANKS AND BANKING-Application of Deposits.-A bank into whose hands money comes by mistake in the name of one who has no interest therein cannot apply it to the satisfaction of his debt to the bank as against the true owner. (p. 442.)

Sullivans & Fry, for the appellant.

H. P. Armitage and Milligan & Lee, for the appellees.

696 DEEMER, J. C. O. Breed was a stock buyer, and J. R. Webb was his agent, who, upon commission, purchased hogs for shipment. After Webb purchased stock he furnished a statement to Breed, and he (Breed) paid for the animals bought, and shipped them in his own name. At the time of the transaction in question Webb was indebted 697 in a large amount to the defendant, the Farmers' Bank, upon his own account. Webb had purchased hogs for Breed to the amount of forty-four dollars and sixty-five cents, and for which Breed had paid, when he (Breed) was called away from home, and, as a full carload had not been purchased, and as Webb was without funds and irresponsible, it was arranged between Webb and plaintiff McLennan, who was cashier of the Citizens' Bank of Afton, that he (McLennan) would furnish the funds necessary to make up a carload of hogs upon condition that the hogs were to belong to McLennan, be shipped in the name of his bank, and the proceeds to be returned thereto, Webb to have no interest therein save his commission. Pursuant to this arrangement, Webb purchased enough hogs to make up a carload, drawing his own checks upon the Citizens' Bank of Afton in payment therefor. These checks were paid by McLennan, but were not entered upon the books of the bank, the checks being used simply as a means of settlement between Webb and McLennan. When the car was ready for shipment, Webb, without the knowledge or consent of either of the plaintiffs, and entirely upon his own motion, directed that it be sent to a commission firm in St. Joseph, Missouri, with which he (Webb) had theretofore done business, and in conformity to a prior custom, and without express direction from anyone, this commission firm remitted the proceeds of the car of hogs, or sent a letter of advice to the defendant bank for the credit of Webb. Upon the receipt of this advice, defendant applied the amount thereof upon Webb's past-due indebtedness to it. Plaintiffs, Breed and McLennan, bring this action to recover the proceeds of the hogs, claiming that the animals were by mistake billed and shipped in the name of Webb, who was a mere agent for the plaintiffs, and that they in fact were and are the owners of the hogs and the proceeds thereof, Webb having no interest therein save his commission. No question is made regarding the joinder of plaintiffs, nor is there any issue regarding their right to sue.

Something is said in argument 698 about these propositions, but it affirmatively appears that they were not presented to or passed upon by the trial court. We go, then, directly to the merits.

Counsel for defendant contend that the proceeds from the sale of the hogs came into the possession of the bank as the property of Webb without notice that any other person had any claim or right thereto, and that it was legally justified in applying same upon Webb's indebtedness to it. They rely upon Waters v. Cass Co. Bank, 65 Iowa, 234, 21 N. E. 582; School Dist. v. First Nat. Bank, 102 Mass. 174, and other cases. In our opinion, these cases are not applicable to the facts now before us. Here the hogs were to be and were the property of the plaintiffs. Without their knowledge or consent they were shipped in the name of Webb, he having no title thereto. The commission house, without direction from anyone, but relying upon a previous custom, caused to be deposited in the Stock Yards Bank at St. Joseph, Missouri, for the credit of defendant, the proceeds of the hogs as coming from J. R. Webb. Upon the receipt of "advice" of this deposit, defendant credited the amount thereof upon various notes which it held signed by Webb. Defendant received nothing but this advice from the St. Joseph bank, and it is manifest that the law merchant has nothing to do with the case. Webb made no deposit with the defendant or with the St. Joseph bank, and he did not direct that returns should be made to defendant, or deposits made to its credit on his behalf. Neither of plaintiffs gave directions that the stock should be shipped in Webb's name, or that Webb should have credit with the proceeds, nor did Webb direct the shipment in his name.

The sole question is, Who is entitled to the proceeds of these hogs? There are no equities in defendant's favor, for it came into possession of the funds, or such possession as it had, solely through a mistake, and without any laches on plaintiff's part. If the hogs belonged to plaintiffs, they are, under this record, entitled to the proceeds thereof.

The action is at law, and, if there be any evidence to 699 sustain the finding of the trial court upon this proposition, the judgment should be affirmed. Turning to the record, we find ample evidence that Webb was buying for Breed simply upon commission, that he had no interest in the hogs,

and that he (Breed) did not authorize Webb to ship in his own name. After Breed left home, Webb explained the situa tion to McLennan, and McLennan told Webb to check on him, and have the returns come to the Citizens' Bank of Afton. When the shipment came to be made, no directions were given the station agent as to whose name in which to ship them, but upon his own motion he used the name of Webb as consignor. Webb did not at any time, and does not now, claim to own either the hogs or the proceeds. It very satisfactorily appears that Webb had no interest in the hogs save to the extent of his commission, and that the shipment was made in his name through mistake of the railway agent, and not by any direction of the parties in interest. The placing of the credit to the defendant bank in the St. Joseph bank was the result of a mistake on the part of the commissionmen, and not by direction of any party to this litigation. In these circumstances, it surely cannot be seriously claimed that defendant is entitled to the money as against the true owner. No cases have been cited which so hold, and we do not think that any can be found. If Webb were a trustee, and, as such, had intentionally made a deposit in defendant's bank, and defendant had received it without notice of its trust character, and had applied it upon Webb's indebtedness, we should have an entirely different case, one to which the authorities cited by appellant might apply. But that is not the situation here. There was no trusteeship except ex maleficio, and there was no deposit by the trustee. The deposit, such as it was, was by another, without any authority or direction in the premises. Such a deposit should not be held to deprive the plaintiffs of their property or of its proceeds. Cady v, South Omaha Bank, 46 Neb. 756, 65 700 N. W. 906, supports this conclusion. See, also, Burtnett v. First Nat. Bank, 38 Mich. 630. The judgment of the district court seems to be correct, and it is affirmed.

For Authorities Bearing on the Decision in the Principal Case, see the note to Garrison v. Union Trust Co., 111 Am. St. Rep. 419.