was 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 Hicks 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 deeds' office in Jackson county, Missouri, 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 35 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, Missouri, 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 number 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, 30 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, Missouri, which he sold on that day to one J. J. Hoos at sixty dollars per foot, one-third cash, balance in one and two years from that date, for which Hoos executed to said 36 Forsee four negotiable promissory notes for five hundred dollars 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 three thousand dollars, 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 fifteen hundred dollars 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 fifteen hundred dollars, 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, was 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 ninth 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 37 south half of said lot number 71, Carlton Place, were transferred to the said plaintiffs, 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 liens on the property-plaintiffs contending that there were none, while defendants contend that the condition was that Hoos was to keep the property entirely free from mechanics' liens, and that he did not do so. But the decided weight of the evidence showed that there were no conditions, and that the agreement was solely for the purpose of enabling Hoos to borrow money on the lots with which to construct the buildings. Plaintiffs were, at the commencement of this action, in the possession of said south half of said lot, and defendants were in the possession of the north half.

The deed of trust, made by said Hoos to said Forsee, was made to secure four negotiable promissory notes, each for the sum of five hundred dollars. The first of said notes falling due was transferred by indorsement for value, before maturity, to said M. T. Forsee, to secure an antecedent debt, and the other three were transferred to said M. T. Forsee, after due, for value, to secure debts contracted at the time, and upon the faith thereof. Said M. T. Forsee had no notice or knowledge of said agreement as to the priority of the liens of said deeds of trust.

Afterward, at a sale made under the deed of trust last named, according to the terms thereof, the said M. T. Forsee became the purchaser of the whole of 38 said lot 71, and received a deed from the trustee therefor.

Waiving all objections as to the sufficiency of the petition, we dispose of the case according to the facts and circumstances in proof.

Both parties requested the court to make a special finding of facts in writing, separate from the judgment, in accordance with section 2135 of the Revised Statutes of 1889, which is as follows: "Upon the trial of a question of fact by the court, it shall not be necessary for the court to state its finding, except generally, unless one of the parties thereto request it with the view of excepting to the decision of the court upon the questions of law or equity arising in the case, in which case the court shall state in writing the conclusions of facts found separately from the conclusions of law."

The record discloses that the judgment was rendered December 18, 1893, and that, while the court made a special finding of facts, as requested by the parties, it was not filed until the 19th of February, 1894, but was then by an entry of record ordered to be filed as of December 18, 1893.

Defendants insist that, as the finding of facts was made at the request of the parties, any objection thereto was matter of ex

ception, and, as no exception was taken to it by plaintiffs, it is conclusive upon them.

This contention would doubtless be correct if the finding of facts had been filed before or at the rendition of the judgment; but it is inconceivable how plaintiffs could have been expected to except to the finding when it was not filed before or at the time of the rendition of the judgment, nor even within the time that they were required by statute to file their motion for a new trial. They had no means of knowing what the finding would be, and were not required to anticipate 39 that anything set forth in it would be contrary to what they understood to be shown by the evidence.

It was held by this court in Hamilton v. Armstrong, 120 Mo. 597, that a finding of facts after judgment has been rendered does not constitute a part of the record, and will not be reviewed on appeal. A similar ruling was made by the supreme court of Iowa, under a similar statute, in Hodges v. Goetzman, 76 Iowa, 476.

There was no such finding of facts in this case as contemplated by statute, or as can be considered by this court, other than such as may be incident to the result of the judgment. No point is made by plaintiffs on the failure of the court to make a finding of facts in writing before or at the time of the rendition of its judgment, nor was any exception taken for that reason.

The evidence clearly showed that, by verbal agreement between Hicks, Forsee, and Hoos, Hicks' two deeds of trust were to be first liens on the lot. This is not only shown by the evidence, but comports with the methods usually adopted by men of ordinary prudence and business capacity. It was absolutely necessary for Hoos to borrow money to enable him to construct buildings on the lot according to his agreement with Forsee, and it is hardly to be presumed that he could have done so with a first mortgage lien in existence on the lot to secure the payment of the purchase money. No one would have loaned him the necessary amount for that purpose under such conditions. Therefore, in order that he might effect the loan, and pay Forsee from it six hundred and seventy-five dollars on the purchase price, Forsee agreed that Hicks' trust deeds should be first liens on the lot. There were no conditions to this agreement, as the facts and circumstances in evidence plainly show.

But it is contended that the contract by which the deeds of trust for the benefit of Hicks were to have 40 priority over the mortgage in favor of Forsee, not being in writing, is within the statute of frauds, and void.

It was held in Linville v. Savage, 58 Mo. 248, under like circumstances, that parol proof "is not obnoxious to the imputation of seeking by parol to modify or change the construction of a written instrument; but to show that one of two instruments was understood by both parties to them to have a priority over the other," and, if it were not so, it was either a mistake or a fraud, and parol evidence was admissible to show either. So, in Rigler v. Light, 90 Pa. St. 235, in which it was agreed between the parties thereto that one of two mortgages executed at the same time should be the prior lien, it was held that the agreement would be enforced as between the parties, although the mortgage postponed was first recorded. In Maze v. Burke, 12 Phila. 335, it is held that such an agreement may be proved by parol: See, also, Freeman v. Schroeder, 43 Barb. 618; 1 Jones on Mortgages, 4th ed., sec. 608.

The loan of the money to Hoos by Hicks, under the agreement with Forsee, by which his (Forsee's) deed of trust should be secured second in order, as a lien, to the deeds of trust for the benefit of Hicks, was a sufficient consideration for the agreement. It therefore necessarily follows that, if Mrs. Forsee had notice of this agreement at the time she became the owner of the notes, even though for a valuable consideration, and before their maturity, her rights must be postponed to those of plaintiffs, because of their superior equity, and because it would be a fraud upon them, holding, as they do, under the Hicks deed of trust, to permit her, under such circumstances, to assert that the deed of trust to or for the benefit of her husband, under which she claims title, was the prior lien on the 41 lot, and that the sale thereunder and purchase by her passed to her the legal title.

It is not claimed that the notes are without consideration, or that there existed at any time any legal defense thereto, but it is insisted that she was not an innocent purchaser of the notes, and that she holds them subject to any agreement between her husband, W. C. Forsee, Hoos, and Hicks, by which the deed of trust. given to secure them was to be postponed to the deeds of trust for the benefit of Hicks.

At the time the first note was transferred to Mrs. Forsee by her husband, W. C. Forsee, it was not then due; nor did it become due for six months thereafter. The weight of the evidence showed that at the time of the transfer her husband was indebted to her in the sum of five hundred dollars on account of moneys belonging to her, which she received from her father's estate and which her husband made use of, and that he transferred the note to her to secure the payment of that indebtedness, and not in satisfac