
                        IN THE SUPREME COURT OF IOWA

                              No. 81 / 03-1525

                           Filed January 13, 2006


GENEVIEVE LYNN ORUD, ELMER LEE WILLERS,
DAWN MARIE WILLERS, and CONNIE ALEXANDER,

      Appellees,

vs.

NANCY A. GROTH,

      Appellant,


and

BRUCE E. GROTH, TERRY A. WILLERS,
and SHARON K. WILLERS,

      Cross-Appellees.



      On review from the Iowa Court of Appeals.
      Appeal from the  Iowa  District  Court  for  Scott  County,  David  H.
Sivright, Jr., Judge.

      Defendant appeals adverse judgment  awarding  plaintiffs  a  share  of
proceeds from sale of property  defendant  held  in  trust,  and  plaintiffs
cross-appeal, challenging exoneration of other  defendants  and  calculation
of damages.  DECISION OF COURT OF APPEALS  VACATED.   JUDGMENT  OF  DISTRICT
COURT AFFIRMED AS MODIFIED ON APPEAL AND  AFFIRMED  ON  CROSS-APPEAL.   CASE
REMANDED.

      Stephen P. Wing of Dwyer & Wing, P.C., Davenport,  for  appellant  and
cross-appellees.

      Jack  E.  Dusthimer  of  Jack  E.  Dusthimer,  P.C.,  Davenport,   for
appellees.
TERNUS, Justice.
      The appellant, Nancy Groth, appeals an adverse judgment in  an  action
brought by her siblings to obtain their share of the proceeds from the  sale
of property originally owned by the parties’ mother.  The  plaintiffs  filed
a cross-appeal asserting the  court  erred  in  failing  to  enter  judgment
against the other defendants, in calculating the  plaintiffs’  damages,  and
in failing to order  partition  of  the  property.   The  court  of  appeals
increased the damage award,  but  otherwise  affirmed  the  district  court.
Upon our review of the parties’ arguments and  the  relevant  authority,  we
conclude the  judgment  entered  against  Nancy  Groth  should  be  reduced.
Therefore, we vacate the decision  of  the  court  of  appeals,  modify  the
judgment entered  against  the  appellant,  and  affirm  the  trial  court’s
judgment in all other respects.
      I.  Facts and Prior Proceedings.
      The appellees, Genevieve Orud, Elmer Willers, Dawn Willers, and Connie
Alexander, are siblings of  the  appellant,  Nancy  Groth,  and  the  cross-
appellee, Terry Willers.  The  mother  of  these  parties,  Candace  Dilley,
owned a home in LeClaire, Iowa.  Nancy and her husband, Bruce  Groth,  lived
in this house with Dilley and Dawn Willers because Dilley could  not  afford
her home without Nancy’s financial assistance.  In order to  persuade  Nancy
to remain in the home, Dilley offered to put Nancy’s name  on  the  deed  so
Nancy could deduct taxes and mortgage interest on her income tax return.
      On May 25, 1990, Dilley signed a quitclaim deed in the office  of  her
attorney, giving Nancy joint tenancy ownership in  the  property  with  full
rights of survivorship.  Four days later, on May 29, 1990,  Dilley  returned
to her attorney’s office and signed a letter that stated in relevant part:


      Dear Children:


            This letter is written as I undertake to transfer  ownership  of
      my home . . . into Nancy’s name.  I have prepared and am filing a Quit
      Claim Deed from me, as surviving joint tenant of my husband . .  .  to
      Nancy and me as joint tenants.  This Deed will place the  property  in
      joint tenancy with Nancy and me.


            The purpose of this transfer of the property to Nancy’s name  is
      so that she can claim a tax deduction for the real  estate  taxes  and
      mortgage interest payments.  She makes them now anyway and I live with
      her there and her husband.


            I consider the true ownership of the property to  be  mine  and,
      should Nancy at any time sell the property, it  is  my  direction  and
      wish that she divide the property proceeds equally with those  of  you
      who are surviving.
Each of the siblings received a copy  of  Dilley’s  letter.   The  quitclaim
deed was recorded on May 30, 1990, the day after the letter was signed.
      Dilley died in 1993.  Subsequently, in 1997, Nancy sold the  house  to
her brother, Terry Willers and his wife, Sharon,  for  $64,000.   The  other
siblings demanded their share of the proceeds in an  amount  that  reflected
the appraised value of the home, a  sum  considerably  more  than  the  sale
price.  When payment was not  forthcoming,  this  suit  was  filed.[1]   The
plaintiffs asserted Dilley’s letter created  a  trust,  and  Nancy,  as  the
trustee, had a fiduciary duty to disburse  the  sale  proceeds  to  Dilley’s
children.  In a prior appeal, we held the plaintiffs  had  stated  a  viable
claim for relief.  See Orud v. Groth, 652 N.W.2d 447, 450 (Iowa 2002)  (Orud
I).
      On May 20, 2003, the matter was tried  to  the  district  court.   The
court ruled that an express trust had been created and that Dilley’s  letter
satisfied the  statute  of  frauds.   In  determining  the  proceeds  to  be
distributed among the siblings, the court used the fair market value of  the
property as the baseline, and concluded the property’s fair market value  at
the time of the sale was its assessed value of $94,920.  After  deducting  a
$44,000 mortgage on the property, the court divided  the  remaining  $50,920
between the  six  siblings,  awarding  each  plaintiff  $8,487.   The  court
entered judgment against Nancy for this amount in favor of each of the  four
plaintiffs.  The plaintiffs’ claims against Bruce Groth, Terry Willers,  and
Sharon Willers were dismissed.
      Nancy and the plaintiffs appealed, and the  case  was  transferred  to
the court of appeals.  That court  affirmed  the  trial  court’s  conclusion
that Nancy held the property subject to a trust  in  the  proceeds,  but  it
disagreed with the measure  of  damages.   Although  the  court  of  appeals
concluded the district court correctly relied  on  the  assessed  value,  it
held the district court should not have deducted the entire mortgage  amount
from that sum.  Because only $29,000 of the original mortgage  proceeds  had
been used for property-related  purposes  (improvements  to  the  house  and
satisfaction of a prior mortgage on the  property),  the  court  of  appeals
determined only that amount was properly deducted from the sale proceeds  to
arrive at each sibling’s share.  Accordingly,  the  court  of  appeals  held
that each plaintiff was entitled to $10,986.67.  It refused to  reverse  the
trial court’s decision  that  judgment  should  be  entered  solely  against
Nancy, concluding there was no legal basis for  imposing  liability  on  the
other defendants.
      The appeal is now before this court after we granted the  applications
for further review filed by Nancy and the plaintiffs.  As  this  matter  was
tried in equity, our review is de novo.  See Johnson v. Kaster,  637  N.W.2d
174, 177 (Iowa 2001).  Although we are not bound by the trial  court’s  fact
findings, we do give weight to those findings.  See In re  Estate  of  Herm,
284 N.W.2d 191, 199 (Iowa 1979).
      II.  Existence of Express Trust.
      The first assignment of error by Nancy on appeal is the trial  court’s
determination that she took title to the property subject to a trust in  the
proceeds for the benefit of Dilley’s surviving children.   Nancy claims  the
deed was delivered to her and title transferred before the  letter  creating
the trust was  signed.   She  argues  her  mother  could  not  retroactively
restrict her rights in the property by the creation of a trust  after  title
had passed.
      In order for a transfer of title to take place  under  a  deed,  there
must be actual or symbolic delivery accompanied by the  grantor’s  intention
to transfer title at that time without any reservation of control.  Orud  I,
652 N.W.2d at 451; Lathrop v. Knoop, 202 Iowa 621, 623, 210  N.W.  764,  766
(1926) (stating “delivery may be made by the grantor to a third  person”  so
long as there is a present intent to pass title without any  reservation  of
control). Nancy claims the deed executed  by  her  mother  was  symbolically
delivered on May 25 because, according to Nancy, Dilley left the  deed  with
her attorney  on  that  date  for  recording.   Nancy  also  relies  on  the
presumption that delivery occurred on the date the deed was executed,  which
in this case was May 25.[2]  See Conway v. Rock,  139  Iowa  162,  164,  117
N.W. 273, 274 (1908) (stating delivery is presumed to have occurred on  date
deed was signed).  Although this presumption supports Nancy’s  argument,  it
is not conclusive and may be overcome by clear, convincing and  satisfactory
evidence to the contrary.  See Jones v. Betz, 203 Iowa 767,  768,  210  N.W.
609, 609 (1926).
      The decisive factual issue in the present case  is  whether  there  is
clear, convincing and satisfactory evidence that the deed was not  delivered
until after Dilley restricted Nancy’s right to the proceeds from a  sale  of
the property.  As we noted in Orud I,  if  the  deed  was  delivered  before
Dilley’s  direction  to  Nancy  that  the  proceeds  be  divided  among  the
siblings, Dilley could not  later  impose  such  a  restriction  on  Nancy’s
ownership.  652 N.W.2d at 451; accord Klein v. Klein, 239 Iowa  40,  52,  29
N.W.2d 163, 169 (1947).  On the other hand, if  delivery  took  place  after
Dilley imposed the conditions under which Nancy took  title,  Nancy’s  title
was subject to a trust on the proceeds from a sale of  the  property.   Orud
I, 652 N.W.2d at 451.
      We agree with the district court and the court of appeals  that  there
is clear, convincing and satisfactory evidence  that  Dilley’s  intent  that
Nancy hold the proceeds from a sale of the property in  trust  for  Dilley’s
surviving children was made known to Nancy before delivery of  the  deed.[3]
Nancy testified she accompanied her mother to the attorney’s office  on  May
25, and there was a discussion  about  the  letter  at  that  time.   Dilley
signed the deed on May 25, but  the  letter  was  not  ready  on  that  day.
Consequently, Dilley and Nancy returned on May 29  so  Dilley  could  review
and sign the  letter.   Importantly,  as  the  court  of  appeals  observed,
Dilley’s letter is written in the present tense, indicating Dilley  had  not
delivered the deed or transferred her interest  in  the  property  prior  to
executing the letter.  (Dilley stated in the letter, “I . . .  am  filing  a
Quit Claim Deed from me . . . to Nancy and me as joint tenants.   This  Deed
will place the property in joint tenancy with Nancy  .  .  .  .”   (Emphasis
added.)).  Moreover, the deed was not recorded  until  after  Dilley  signed
the letter.  We think this evidence is sufficient to rebut  the  presumption
that delivery occurred on the date the deed was  signed.   Therefore,  Nancy
took title to the property subject to the obligation to carry out the  terms
of the express trust created by Dilley’s letter.   Nancy argues this  result
undermines our system of land title examination by  permitting  a  party  to
challenge the clear terms of a deed with extrinsic evidence.  This  argument
misconstrues the nature of the trust created  by  Dilley.   Dilley  did  not
restrict Nancy’s ability to deal with the  property  during  the  time  that
Nancy held title, including Nancy’s right to mortgage  the  property  or  to
transfer title to a third person.  The trust merely required that  if  Nancy
chose to sell the property, the proceeds from the  sale  should  be  divided
equally among Dilley’s  children.   Enforcing  this  obligation  in  no  way
undermines the reliability of our land title  system.   In  any  event,  the
restriction on Nancy’s  ownership  imposed  by  the  trust  would  not  have
prevented transfer of title to a bona fide purchaser with no notice  of  the
trust.  See Restatement (Second) of Trusts § 284, at 47-48 (1959).
      III.  Statute of Frauds.
      Nancy also asserts the evidence was insufficient to establish a  trust
because there was no writing that satisfied the requirements of the  statute
of frauds.  She relies on a statement this court made in Orud I  that  “‘[a]
letter signed by the trustee  whether  written  to  the  beneficiary  or  to
another person, and whether mailed or not,’” would  be  sufficient  to  meet
the requirement of a  writing.   652  N.W.2d  at  452  (quoting  Restatement
(Second) of Trusts § 47 cmt. b) (emphasis added).  Nancy argues  the  letter
in this case does not satisfy the statute of frauds because  it  was  signed
by the trustor, Dilley, rather than by the trustee, Nancy.
      The example we gave in Orud I is not the only  type  of  writing  that
would satisfy the statute of frauds.  In pertinent part Restatement  (Third)
of Trusts section 23 states:


            Where the owner of property transfers it inter vivos to  another
      person upon an inter  vivos  trust  for  which  a  statute  of  frauds
      requires a writing, a writing evidencing the trust as provided in § 22
      is sufficient to satisfy the requirements of  the  statute  if  it  is
      signed:

            (a) by the transferor before or at the time of the transfer; or


            (b) by the transferee


                  (i) before or at the time of the transfer, or


                  (ii) after the transfer was made  to  the  transferee  but
           before the transferee has transferred the property  to  a  third
           person.

Restatement (Third) of Trusts § 23(2) (2003) (emphasis added).  Dilley,  the
transferor, signed the letter creating the trust prior to or at the time  of
delivery of the deed.  Therefore, this  writing  satisfies  the  statute  of
frauds.
      IV.  Damages.
      Nancy’s failure to distribute the proceeds of the sale as required  by
the trust subjects her to liability to the beneficiaries.  See 76  Am.  Jur.
2d Trusts § 345, at 399 (2005) (stating “a failure to administer  the  trust
in accordance with its  terms  renders  a  trustee  liable  for  any  injury
sustained thereby by .  .  .  any  person  beneficially  interested  in  the
trust”).   Nancy  asserts,  however,  that  the  recoverable  damages   were
incorrectly computed by the trial court and the court  of  appeals.   First,
she argues that because her mother wanted the  property  to  remain  in  the
family, Nancy could properly sell the land for  a  below-market-value  price
if necessary to interest one of her siblings  in  purchasing  the  property.
Consequently, she contends the court of appeals and district court erred  in
calculating the proceeds based on the fair  market  value  of  the  property
rather than the actual sale price.  Secondly, Nancy claims that even if  the
fair market  value  of  the  property  is  the  correct  starting  point  in
determining the proceeds to  be  distributed,  both  courts  overvalued  the
house.  Finally, Nancy asserts  her  mother  intended  to  permit  Nancy  to
deduct “from the gross sale price all the  costs  of  sale,  mortgages,  and
other items paid out at the time of closing to determine  the  proceeds  for
distribution.”  If such deductions are  not  allowed,  suggests  Nancy,  she
will be bankrupted, and that result, she argues, was  clearly  not  intended
by her mother.  She contends the court of appeals  erred  in  modifying  the
district court’s judgment deducting the full amount of the mortgage.
      A.  Sale price.  We agree with  the  court  of  appeals  and  district
court that Nancy, as the trustee, had an obligation  to  sell  the  property
for its fair market value.[4]  See Johnson v. Johnson, 242 Iowa 27,  31,  45
N.W.2d 573, 575 (1951)  (holding  trustee  with  the  power  to  sell  trust
property “must, however, sell for  an  adequate  price”).   Even  if  Dilley
preferred that the property remain in the family, that preference would  not
automatically allow Nancy to sell the property  to  a  family  member  at  a
reduced price.  To infer  such  a  power  would  be  inconsistent  with  the
express terms of the trust.  If Nancy were allowed to sell the  property  to
one beneficiary below market value,  the  purchasing  beneficiary  would  in
effect receive a larger share of the otherwise  available  proceeds  at  the
expense of the other beneficiaries.   That  result  would  violate  Dilley’s
express intent that the beneficiaries benefit equally from the sale  of  the
property.  See also id. at 29, 45 N.W.2d at 574 (“A trustee must act at  all
times  .  .  .  impartially  between  the  several  beneficiaries  [of   the
trust].”).  Therefore, the trial court properly focused on the  fair  market
value of the property as the  baseline  for  determining  the  distributable
proceeds.  We next determine what the fair  market  value  of  the  property
was.
      B.  Fair market value.  There were several items of evidence  relevant
to the fair market value of  this  property.   The  plaintiffs  offered  the
assessor’s records showing  the  property  had  had  an  assessed  value  of
$94,920 since 1995.  In addition, the plaintiffs  introduced  evidence  that
the bank financing Terry and Sharon Willers’ purchase of  the  property  had
an appraisal done  that  showed  an  appraised  value  of  $105,000.   Terry
testified, however, that  this  value  was  erroneous.   He  stated  without
contradiction that the appraiser had included boat docks  that  belonged  to
someone else in the valuation  of  the  property,  which  had  inflated  the
appraisal by  $10,000.   Terry  also  testified  that  he  made  $20,000  of
improvements  to  the  property  before  the  appraisal   was   done.    The
documentary evidence in the record shows that Nancy accepted  Terry’s  offer
to purchase the property for $64,000 on April 4, 1997, but the  closing  did
not occur until November 13, 1997.  Between April and November,  Terry  made
extensive  repairs  to  the  house  and  driveway.   The   defendants   also
introduced a videotape showing structural and other problems  that  remained
even after these repairs had been made.  Finally,  Nancy  testified  that  a
realtor had offered to put the property on the market for  an  asking  price
of $67,000.
      In considering this evidence we place our  greatest  reliance  on  the
appraisal made prior to the closing as showing the fair market value of  the
property at that time.  We think this sum must be reduced, however,  by  the
value of the boat docks erroneously included in the appraisal,  as  well  as
the $20,000 in improvements made by Terry after the purchase price was  set.
 We are persuaded the fair market value of the property at  the  time  Nancy
became contractually bound to sell the property  to  Terry  and  Sharon  was
$75,000.  We now consider what items are properly deductible from  the  fair
market value to arrive at the distributable proceeds.
      C.  Mortgage  deduction.   Dilley  instructed  Nancy  to  “divide  the
property  proceeds  equally.”   The  word  “proceeds”  means  “the  net  sum
received . . . after deduction  of  any  discount  or  charges.”   Webster’s
Third New International Dictionary 1807 (unabr.  ed.  2002).   To  determine
the extent to  which  the  $44,000  mortgage  pay  off  amount  is  properly
deducted from the sum received by Nancy upon sale of the property, we  focus
on the purpose of the mortgage.   The  record  established  that  the  funds
obtained by Nancy when the property was  mortgaged  were  used  for  several
purposes, not all property related.  Some of the funds were used to pay  off
a prior mortgage and make improvements to the house  on  the  property,  but
the balance of the mortgage funds was used by Nancy to buy a  car  for  Dawn
and to pay Nancy’s personal debts and expenses.
      “[A]s a general rule trustees are prohibited from  engaging  in  self-
dealing transactions with the trust and from  obtaining  personal  advantage
from their dealings with trust property.”  Harvey  v.  Leonard,  268  N.W.2d
504, 512 (Iowa 1978); accord Coster v. Crookham, 468 N.W.2d 802,  806  (Iowa
1991) (stating a “‘trustee violates his duty to the beneficiary . . .  where
he uses the trust property  for  his  own  purposes’”  (quoting  Restatement
(Second) of Trusts § 170 cmt. l)); 76 Am. Jur. 2d Trusts §  471,  at  514-15
(stating trustee cannot use or mortgage  trust  property  for  his  personal
interest).  Nancy violated this duty when she used  the  funds  obtained  by
mortgaging the property for her personal benefit.  Therefore, to the  extent
the mortgage was incurred for Nancy’s own  purposes,  it  is  not  a  proper
deduction from the sale price.  See Coster, 468  N.W.2d  at  806  (“‘If  the
trustee in violation of his duty to the beneficiary uses trust property  for
his own purposes and makes a profit  thereby,  he  is  accountable  for  the
profits so made.’” (quoting Restatement (Second) of Trusts § 206  cmt.  j));
76 Am. Jur. 2d Trusts § 468, at 513 (stating trustee is liable to trust  for
any losses caused by trustee’s self-dealing).   Accordingly,  the  court  of
appeals properly limited the deduction of  the  mortgage  to  $29,000,  that
portion of the mortgage incurred to improve the home and  pay  off  a  prior
mortgage on the property.  The district court erred in allowing  the  entire
mortgage to be subtracted from the fair  market  value  in  determining  the
proceeds to be distributed to the beneficiaries.
      D.  Calculation of damages.  We have determined that the  fair  market
value of the property at the time  it  was  sold  was  $75,000.   From  that
amount  the  mortgage  on  the  property  attributable  to  property-related
expenses—$29,000—must be deducted to compute  the  proceeds  to  be  divided
among the six siblings.  Thus, the proceeds to be  distributed  are  $46,000
($75,000 minus $29,000), and each sibling is entitled to $7,666.66  ($46,000
÷ 6).  We modify the judgment entered against Nancy Groth and  in  favor  of
the plaintiffs accordingly.
      V.  Liability of Other Defendants.
      A.   Terry  and  Sharon  Willers.   The  plaintiffs  assert  in  their
application for further review that the district court and court of  appeals
erred in failing to impose  liability  on  Terry  Willers  and  his  spouse,
Sharon, and in refusing to make the judgment a lien  against  the  property.
This court has recognized that a third party may be liable for  a  trustee’s
breach of fiduciary duty.  See Coster, 468 N.W.2d at  809.   In  Coster,  we
quoted the following rule from the Restatement (Second) of Trusts:


      “A third person who, although not a transferee of trust property,  has
      notice  that  the  trustee  is  committing  a  breach  of  trust   and
      participates therein is liable to the beneficiary for any loss  caused
      by the breach of trust.”

Id. (quoting Restatement  (Second)  of  Trusts  §  326,  at  124)  (emphasis
omitted).  A similar rule exists for a transferee  of  trust  property  “who
takes with notice of the breach of trust.”  Restatement (Second)  of  Trusts
§ 288, at 55.
      The first issue is whether Terry and Sharon had notice that  the  sale
to them was a breach of trust by Nancy.  “A person has notice  of  a  breach
of trust if . . . he knows or should know of the breach of  trust.”   Id.  §
297, at 74.  A transferee knows or should know of a breach of  trust  if  he
knows or should know (1) of the existence of a trust, (2) the terms  of  the
trust, and (3) that the trustee is improperly deviating from  the  terms  of
the trust.  Id. § 297 cmt. c, at 76.  Here, Nancy’s breach lay  not  in  the
transfer of the property, since it was anticipated in Dilley’s  letter  that
Nancy would at some point sell the property.  Nancy’s primary breach was  of
her fiduciary duty to  ensure  that  all  siblings  shared  equally  in  the
proceeds of the sale.  The governing principle of law for this situation  is
set forth in the Restatement:


            If a trustee in the proper exercise of a  power  of  sale  sells
      trust property, and the purchaser  pays  the  purchase  price  to  the
      trustee without notice  that  the  trustee  intends  to  misapply  the
      purchase price, the purchaser  is  not  liable  although  the  trustee
      misapplies the purchase price.

Id. § 321 cmt. b, at 113.  The plaintiffs have not  proved  that  Terry  and
Sharon had notice that Nancy did not intend to make  the  required  payments
to her siblings.  Therefore,  the  Willers  are  not  liable  for  the  sums
received by Nancy, but which she failed to turn  over  to  the  other  trust
beneficiaries.  This conclusion  does  not,  however,  dispose  of  possible
liability based on the deficient purchase price.
      As noted  above,  to  establish  the  liability  of  a  transferee,  a
beneficiary must prove the transferee knew or should have known the  trustee
was violating the trust.  We cannot  find  under  the  present  record  that
Terry and Sharon Willers knew or should have known that  the  sale  to  them
was a violation of the trust terms. The evidence showed that  Terry  Willers
notified his sister, Connie Alexander, of  his  impending  purchase  of  the
property.  Together they went to an attorney to discuss the impact of  their
mother’s letter on the sale.  Shortly after this meeting, Alexander wrote  a
letter to that attorney, with a copy of the letter sent to Terry,  in  which
she stated that it was satisfactory to the other  siblings  “that  Terry  be
allowed to purchase this home.”  She further emphasized  that  she  did  not
want the siblings’ efforts to share in the proceeds  to  in  any  way  cause
Nancy to back out of her “signed commitment” to sell the property to  Terry.
 It is opportunistic for the plaintiffs  to  claim  now,  after  encouraging
Terry’s purchase of the property, that he was a joint tortfeasor with  Nancy
and should  be  held  liable  for  her  breach  of  trust.   The  plaintiffs
themselves led the Willers to believe that the sale to them was  not  itself
a breach of Nancy’s fiduciary duty to the siblings.  Consequently, we  agree
with the trial court that there is no basis upon which to  impose  liability
on Terry and  Sharon  Willers.   Therefore,  we  affirm  the  trial  court’s
judgment in their favor.
      B.  Bruce Groth.  As noted above, a third party may be  liable  for  a
trustee’s breach of duty if the third party “has notice that the trustee  is
committing  a  breach  of  trust  and  participates  therein.”   Restatement
(Second) of Trusts § 326, at 124.  Bruce Groth  was  not  a  seller  of  the
property, nor was he a buyer.  His only participation  in  the  transfer  of
the property was releasing any rights in the property  he  held  as  Nancy’s
spouse. We do not think his involvement in the transaction in this  capacity
is “participation” so as to subject him to liability for Nancy’s  breach  of
trust.  Therefore, we also affirm  the  judgment  entered  by  the  district
court in favor of Bruce Groth.
      VI. Right to Partition.
      The plaintiffs claim they are entitled  to  the  equitable  remedy  of
partition.  The trust instrument—Dilley’s letter—did not give  the  siblings
an interest in the property itself; they had only a right to  share  in  the
proceeds of a sale of the property.  Under  these  circumstances,  partition
is not available to the beneficiaries of the trust:


            Where a trust instrument contains a positive direction that  the
      trustees sell the trust real estate and divide the proceeds among  the
      persons designated, a  beneficiary  of  the  trust  may  not  maintain
      partition, since the creator of the trust has  provided  the  mode  of
      division or distribution.

59A Am. Jur. 2d Partition § 47, at 40-41 (2003).  Therefore, we  reject  the
plaintiffs’ request that the property be partitioned to satisfy their  right
to a share of the proceeds.
      VII.  Disposition.
      Having  considered  the  arguments  of  the  parties,  we  vacate  the
decision of the court of appeals.  We affirm the judgment  of  the  district
court with respect to defendant Nancy  Groth,  as  modified.   Upon  remand,
judgment shall be entered against Nancy Groth and in favor of  each  of  the
four plaintiffs in the amount of $7,666.66, plus  interest  as  provided  in
the original order.  We affirm the judgment of the district court  in  favor
of the other defendants.  Costs are taxed three-fourths to  defendant  Nancy
Groth and one-fourth to plaintiffs.
      DECISION OF COURT OF APPEALS  VACATED.   JUDGMENT  OF  DISTRICT  COURT
AFFIRMED  AS  MODIFIED  ON  APPEAL  AND  AFFIRMED  ON  CROSS-APPEAL.    CASE
REMANDED.
-----------------------
      [1] In addition to suing their sister Nancy  and  brother  Terry,  the
plaintiffs also named their siblings’ spouses as defendants,  explaining  on
appeal that the plaintiffs considered them to be “joint tortfeasors.”
      [2] Nancy also points to the presumption of proper delivery  generated
by a signed, acknowledged and recorded deed.  See  Hogdson  v.  Dorsey,  230
Iowa 730, 733, 298 N.W. 895, 897 (1941).  The plaintiffs do  not  appear  to
contest, however, that the deed was properly delivered.  The disputed  issue
is when it was delivered.
      [3]Nancy complains that the trial  court  and  the  court  of  appeals
ignored her testimony that her mother said the letter  was  simply  intended
to  placate  Nancy’s  sister,  Connie,  and  was  not  meant  to  impose  an
obligation on Nancy to split the proceeds  if  and  when  the  property  was
sold.  Nancy testified she and her mother had an oral agreement  that  Nancy
would allow Dawn to live in the house and  if  Nancy  sold  the  house,  she
would try to keep it in the family.  Three of the  plaintiffs  testified  to
the contrary, stating Dilley told them prior to execution of the  deed  that
she intended the proceeds from a sale of the property to  be  divided  among
the siblings.  Of course the actual letter expresses  only  an  intent  that
Nancy take the property subject to Dilley’s desire that  any  sale  proceeds
benefit all of  Dilley’s  children.   Even  though  there  was  evidence  to
support Nancy’s position, it is up to the fact finder to  resolve  conflicts
in the evidence and to determine which evidence  was  most  credible.   More
importantly, the existence of contrary evidence does not  preclude  us  from
finding that the evidence in support of  the  plaintiffs’  case  was  clear,
convincing, and satisfactory.
      [4]Other than contesting the existence  of  a  trust,  Nancy  has  not
challenged the  underlying  assumption  of  the  trial  court  that  she  is
strictly liable to the beneficiaries for her failure to  sell  the  property
at fair market value.  See Iowa Code § 633.160 (2005) (stating fiduciary  is
liable for any “negligent or willful act or nonfeasance” that causes  loss);
see also 76 Am. Jur. 2d Trusts § 363, at 418 (stating trustee has a duty  to
act in good  faith  and  “within  the  bounds  of  reasonable  judgment”  in
exercising  discretionary  powers).   Therefore,  we  do  not  consider  the
propriety of holding Nancy strictly liable for the  difference  between  the
sale price and the fair market value of the property.  See Hyler v.  Garner,
548 N.W.2d 864, 870 (Iowa 1996) (holding that  even  in  appeals  of  equity
cases  where  review  is  de  novo,  review  is  limited  to  those   errors
specifically identified on appeal).

