BURGESS, J.
Action by plaintiffs for the removal of a cloud on their title to the south half of lot No. 71, Carlton Place, Kansas City, Mo. The suit was brought in the circuit court of Jackson county, but the venue was subsequently changed to the circuit court of Johnson county, where a trial was had, resulting in a judgment for defendants, from which plaintiffs appealed.
The petition is in two counts. The first count, leaving off the formal parts, is as follows: "(1) That Louis Loewen is husband of plaintiff Julia Loewen. (2) That Morris Loewen is husband of Ida Loewen. (3) That prior to June, 1888, defendant W. C. Forsee was the owner in fee simple of lot No. 71 in Carlton Place, an addition to the city of Kansas, now Kansas City, Jackson county, Mo. (4) That said defendant, W. C. Forsee, and wife, by warranty deed dated June 14, 1888, recorded July 9, 1888, sold and transferred said property, lot No. 71, Carlton Place, to one J. J. Hoos. (5) That afterwards said John J. Hoos and wife executed two deeds of trust to Samuel Foster for Charles R. Hicks. Said deeds of trust were dated June 15, 1888, acknowledged June 18, 1888, and filed for record July 9, 1888. One of said deeds of trust covers the north half of said lot 71, and the other the south half of said lot 71, each given to secure a loan of $1,500. (6) That afterwards the said J. J. Hoos and wife made and executed a deed of trust to S. S. Forsee, trustee for W. C. Forsee. Said deed of trust is dated June 22, 1888, acknowledged July 6, 1888, and filed for record July 7, 1888. (7) That thereafter, on August 13, 1891, the debts described in each of the deeds of trust executed and given by said J. J. Hoos and wife to Samuel Foster, trustee for Charles R. Hicks, coming due, and default being made in the payment of the same, said deeds of trust were foreclosed, according to the terms and conditions mentioned in the same, and at the foreclosure sale of said property above described, by said trustee, Samuel Foster, the same was purchaser by plaintiffs, Julia and Ida Loewen, who paid full value for the same; and said north half and said south half of said lot No. 71 Carlton Place were transferred to said plaintiffs Julia and Ida Loewen, by said trustee, Samuel Foster, by two trustee deeds, both dated August 13, 1891, and recorded August 20, 1891. (8) Plaintiffs further estate that at the time the trust deeds were made and executed by said J. J. Hoos and wife to Charles R. Hicks and to W. C. Forsee, beneficiaries, it was orally agreed by and between said Hoos, said Hicks, and said W. C. Forsee that the deeds of trust made to Samuel Foster, trustee for Charles R. Hicks, were to be a first lien on said lot 71 Carlton Place, and it was mutually agreed by all of said parties that the deeds of trust made by said J. J. Hoos to S. S. Forsee, trustee for W. C. Forsee, were to be a second lien on said lot 71 Carlton Place, subject to the two deeds of trust made to Samuel Foster, trustee for Charles R. Hicks. Plaintiffs further state that said loans and deeds of trust were all made about the same time, with the understanding and agreement that said trust deeds made to said Charles R. Hicks were to be first liens on said lot described herein, and were to be filed on record first, said trust deeds being given to secure loans made to said Hoos to erect buildings on said lots, which buildings were erected on the same with said loans; and it
was also mutually agreed by all parties thereto, in consideration of said Hick's agreeing to and making said loan, that said trust deed to S. S. Forsee, trustee for W. C. Forsee, was to be filed in recorder of deed's office in Jackson county, Mo., after the filing of said Hicks' trust deeds, and that it should be a lien on said lot, subject to the liens of the Hicks' trustee deeds. And the plaintiffs further state that the defendant W. C. Forsee, contrary to the express agreement mentioned herein, made with said Hicks and said Hoos, wrongfully and fraudulently, and without the knowledge or consent or acquiescence of the said Samuel Foster or Charles R. Hicks, placed the trust deed executed to him on the records of Jackson county, Mo., on July 7, 1888, which was on Saturday; the said trust deeds to Samuel Foster, trustee for Charles R. Hicks, not being recorded until July 9, 1888, which was on the following Monday. Plaintiffs further state that said trust deed, appearing as filed of record prior to the time of the trust deeds made to Charles R. Hicks, is a cloud on their title to the south half of said lot No. 71 Carlton Place; that they are now in the possession of said south half of said lot; that said S. P. Forsee and M. T. Forsee are now claiming an interest and title to said lot through and under said deed of trust, with full notice of the agreement aforesaid, and of the fact that said deed of trust was only a second lien on said land. Wherefore plaintiffs pray for a removal of said cloud from their title to said south half of said lot; that said trust deed, so executed to said S. S. Forsee, trustee for W. C. Forsee, be declared subject to the trust deed executed to Samuel Foster, trustee for Charles R. Hicks; and for such other and further relief as plaintiffs may be entitled to in equity under the premises." The second count is in all respects like the first, except that it is in respect to the north half of the lot, and alleges that defendants are in its possession. The answers are general denials.
The evidence discloses the following facts: On June 22, 1888, the defendant W. C. Forsee owned all of lot 71 Carlton Place, Kansas City, Mo., which he sold on that day to one J. J. Hoos, at $60 per foot, one-third cash, balance in one and two years from that date, for which Hoos executed to said Forsee four negotiable promissory notes, for $500 each; and, to secure their payment, he executed to Forsee, on July 6, 1888, a deed of trust on said lot, his wife joining therein with him. A verbal agreement was then entered into, between Hoos and W. C. Forsee, by which Hoos was to borrow $3,000, to be applied to the building of two seven or eight room houses, one on the north half, and the other on the south half, of said lot, to cost $1,500 each; and, to enable him to borrow the money for that purpose, it was agreed between them that two mortgages should be given on each half of said lot, to secure the payment of $1,500, one on the north half, and the other on the south half, which were to be first liens on the property. Hoos secured the desired loan from one Charles R. Hicks, and executed to Samuel Foster, as trustee, two deeds of trust, according to the arrangement with Forsee, to secure its payment, one on the north half, and the other on the south half, of the lot. Six hundred and seventy-five dollars of the money borrowed by Hoos, to be used in the erection of the buildings, were paid to W. C. Forsee as part of the purchase money for the property, he knowing the purpose for which it was procured. The Hicks deeds of trust were filed for record in the recorder's office of Jackson county on the 9th day of July, 1888. Forsee's deed of trust was recorded July 7, 1888, two days before the Hicks deeds of trust were recorded. On August 13, 1891, the debts described in the deeds of trust executed by said J. J. Hoos and wife to Samuel Foster, trustee for Charles R. Hicks, coming due, and default being made in the payment of the same, they were foreclosed, according to their terms and conditions; and at the foreclosure sale of said property by said trustee, Samuel Foster, the same was purchased by plaintiffs, Julia and Ida Loewen, who paid full value for the same, and said north half and said south half of said lot No. 71 Carlton Place were transferred to the said plaintiff's Julia and Ida Loewen, by said trustee, Samuel Foster, by two trustee's deeds, both dated August 13, 1891, and recorded August 20, 1891. The evidence was somewhat conflicting as to the terms of the agreement between W. C. Forsee, Hoos, and Hicks, with respect to the terms and conditions, if any, by which Hicks' deeds of trust were to be first...
