IOWA CODE ANN. § 557.3 (West, WESTLAW through 2002 2d. Ex. Sess.).Orud v. Groth, 652 N.W.2d 447, 451 (Iowa 2002); Klosterboer v. Engelkes, 125 N.W.2d 115, 117 (Iowa 1963).Orud, 652 N.W.2d at 451; Klosterboer, 125 N.W.2d at 117.

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). 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."

Where as here there is a claim that the owner of an interest in land transfers it inter vivos to another in trust for a third person, but there is no memorandum properly evidencing the intention to create a trust signed . . . and the transferee refuses to perform the trust, the transferee holds the interest upon a constructive trust for the third person, if, but only if, (a) the transferee by fraud, duress or undue influence prevented the transferor from creating an enforceable interest in the third person, or (b) the transferee at the time of the transfer was in a confidential relation to the transferor, or (c) the transfer was made by the transferor in anticipation of death. Orud v. Groth, 652 N.W.2d 447, 452 (Iowa 2002). In order to be binding, an agreement must be definite and certain as to its terms to enable the court to give it an exact meaning.

When a motion for judgment on the pleadings is made prior to an answer denying the allegations in the petition, the court should view the motion for judgment on the pleadings as a motion to dismiss. Orud v. Groth, 652 N.W.2d 447, 450 (Iowa 2002). Because WorldCom filed its motion for judgment on the pleadings before answering Barkema's petition, the district court properly considered it a motion to dismiss.

A conveyance by deed does not take place until the deed is delivered. See McNertney v. Kahler, 710 N.W.2d 209, 212 (Iowa 2006) ("A deed to be operative as a transfer of real estate must be delivered.") (citing 23 Am.Jur.2d Deeds § 102, at 141 (2002)); accord Orud v. Groth, 652 N.W.2d 447, 451 (Iowa 2002) ("To effectuate transfer of title under a deed, there must be delivery, actual or symbolical, accompanied with the intention of the grantor to transfer title without any reservation of control." (citing Lathrop v. Knoop, 202 Iowa 621, 623, 210 N.W. 764, 765-66 (1926); Tutt v. Smith, 201 Iowa 107, 110-11, 204 N.W. 294, 295-96 (1925))).

"When, as here, a defendant makes a motion for judgment on the pleadings prior to answer challenging the sufficiency of the allegations to sustain a claim for relief, the court should view the motion in the same manner as a motion to dismiss under rule 1.421(1)(f)." Orud v. Groth, 652 N.W.2d 447, 450 (Iowa 2002) (cleaned up). So we agree with the district court's assessment that "a motion to dismiss and a motion for judgment on the pleadings ask the same question: Taking the facts as pleaded, is it clear that Plaintiff is not entitled to relief?"

"To effectuate transfer of title under a deed, there must be delivery, actual or symbolical, accompanied with the intention of the grantor to transfer title without any reservation of control." Orud v. Groth, 652 N.W.2d 447, 451 (Iowa 2002). "The intent of the grantor is controlling in the matter of delivery and is to be determined by the grantor's acts or words or both."

Id. Don first contends the court failed to rebut the presumption of validity of a duly executed and recorded deed, citing Orud v. Groth, 652 N.W.2d 447, 451 (Iowa 2006). However, Orud references the rebuttable presumption of delivery that arises from a recorded deed, as do the other cases cited, including Klosterboer v. Engelkes, 255 Iowa 1076, 1080, 125 N.W.2d 115, 117 (1963) ("A presumption of delivery arises from a recorded deed. . . .").

"A constructive trust is not an actual trust but is simply a legal construct expressing a right to restitution based on unjust enrichment." Orud v. Groth, 652 N.W.2d 447, 452 n. 2 (Iowa 2002) (citing Restatement (Second) of Trusts § 404 introductory note (1959)). Because there is no evidence in the record of unjust enrichment, we concur with the district court's analysis determining a constructive trust is not appropriate in this case.

"A constructive trust is not an actual trust but is simply a legal construct expressing a right to restitution based on unjust enrichment." Orud v. Groth, 652 N.W.2d 447, 452 n. 2 (Iowa 2002) (citing Restatement (Second) of Trusts § 404 introductory note (1959)). Because there is no evidence in the record of unjust enrichment, we concur with the district court's analysis determining a constructive trust is not appropriate in this case.