
    William House, by His Next Friend, Frank House, Appellant, v. A. Bowman.
    Adjudication in Prebale: jury question. The clerk paid money to a guardian, under the belief that it was due his ward. It, in fact, belonged to a minor who had no guardian. It was turned over to the ward. The court approved the guardian’s report, which set out the transaction, and discharged him. The minor, whose money was paid to the wrong person, was not a party to the said guardianship proceedings. There was evidence tending to show that the guardian knew, before he took the money, that it belonged to said minor. H- Id. the approval of the report was no adjudication, and the case should have gone to the jury on the issue whether the guardian had such knowledge,
    
      
      Appeal from Linn District Court. — Hon. J. H. Preston, Judge.
    Wednesday, February 5, 1896.
    Action to recover for money alleged to be due to the plaintiff, as an heir of George House, deceased. There was a trial by jury, and at the close of the introduction of the evidence in behalf of the plaintiff, the court, on motion of the defendant, * instructed the jury to return a verdict for the defendant. From a judgment on the verdict, the plaintiff appealed.
    
    Reversed.
    
      Riclcel & Crocker for appellant.
    
      William Smyth and J. W. Jamison for appellee.
   Rothrock, C. J.

The plaintiff is a grand-child of George House, deceased. It appears that a partition of certain real estate of the deceased, was had in the Linn district court, and the land was sold by referees appointed by the court. The plaintiff had two brothers and a sister, their names being Frank House, Arthur House, and Hester House. All these grand-children were minors when the proceedings in partition were had, and when the land was sold, each was entitled to two hundred and twenty-six dollars of the money received therefor. The defendant was duly appointed guardian of Arthur House and Hester House, and, as such guardian, he received from one of the referees the money to which his wards were entitled, and executed receipts therefor. The plaintiff and Frank House had no guardian, and their share of- the money was paid, by one of the referees, to the clerk of the district court. The clerk of the court gave the referees a receipt for the money, which was in these words: “$452.42. Marion, Iowa, Nov. 16, 18(88. Received of J. B. Leigh and John P. Gritman, referees, four hundred fifty-two and 42-100 dollars, as the distributive shares of Arthur and Hester House, in case of Hester Stantz v. Allen House, et al., district court. J. W. Bowdish, Clerk. By H. Stearns, Deputy.” It will be observed that his receipt purports to be for the distributive shares of the two minors, of whom the defendant was guardian. It was in fact the distributive shares of William House and Prank House, who had no guardian. ' Before this deposit was made with the clerk, the defendant had received from the referees the full amount to which his wards were entitled, and receipts were given therefor. The defendant received from the clerk the money paid in by the referees, and settled with his wards by paying them each four hundred and thirty-four dollars, or thereabouts, being twice the sum to which they were entitled. After making these payments, he made his report to the court, showing said payments, and his report was examined and approved by the court, and he was discharged as guardian. The above facts are practically undisputed, and it is conceded that the plaintiff has received nothing from the estate of his grand-father. As the clerk receipted for the money as belonging to the defendant’s wards, it is to be supposed that the records showed that it was their money, and it was paid out to the defendant as their guardian. And there is no question that the defendant’s wards have no right to the money. The defendant did not profit by acting as guardian for his wards. He paid his counsel only four dollars for services in the matter of guardianship, and he received five per cent, for his own services. There was evidence introduced by the plaintiff which tended to show that the defendant had notice, before he received the money from the clerk, that it belonged to the two heirs who had no guardian. The defendant, in his answer, claimed that he had no knowledge whatever that the money belonged to the plaintiff and Frank House, but that he received it from the clerk and paid it out in good faith, and in the full and honest belief that it belonged to his wards. And, so far as the case was tried, that appears to be the question to which the evidence was directed. We think as that was the issue, and as there was evidence tending to show that the defendant knew that his wards were not entitled to the money in dispute, the cause ought to have been submitted to the jury, — or, in other words, the defendant should have introduced his evidence on that issue. If money was received after notice that it did not belong to the wards, the approval of the report of the guardian, and his discharge by the court, cannot be held as an adjudication against the plaintiff, because he was not a party 'to that proceeding. The case involves one of the hardships which often occur in business affairs, whichever way it may be finally determined. The judgment of the district court is reversed.  