money necessary to carry out their part of this contract, and that their said trustee is to account to them, share and share alike, according to their respective rights and interest."

This agreement was executed by the parties above named, Ida Smith joining in the execution thereof, and Andrew McLellan accepting the trust named. On May 4, 1891, Barbour, Rexford, and Phillips, parties of the first part, and John H. Bradish, party of the second part, and the Smiths, parties of the third part, entered into the following agreement:

"Whereas, by an agreement bearing date February 21, 1891, between said first parties and said third parties, it is stipulated that said third parties shall place in the hands of said first parties the sum of $10,000, or its equivalent, to be used by said first parties, together with money of their own, in making the purchase of the Iroquois Hotel property therein mentioned, at the sheriff's sale thereof under certain levies on executions;

"And whereas, said second party has loaned said third parties $6,000 of the money so by them to be placed in the hands of the said first parties, and, to secure the payment of loan, said third parties have placed in the hands of said second party all their claims and demands of every nature and kind against one George Kemp, of Sault Ste. Marie, consisting principally of a $4,000 claim under a certain written agreement signed by said Kemp, and of whatever balance may be found to be due and owing from said Kemp to said third parties, or either of them, under a partnership accounting between them and said Kemp,

"Witnesseth: That it is hereby mutually consented, agreed, and understood by and between the parties hereto that after said third parties shall have paid to Andrew McLellan, trustee for said first parties, under said agreement of February 21, 1891, the $2,000 therein agreed by said third parties to be paid on or before the 1st day of September, 1891, and also shall have paid to said trustee the further sum of $10,000 and interest thereon, according to the terms of said agreement of February 21, 1891, then, and not before, said trustee shall pay to said second party, of the moneys paid to him by said third parties under said agreement, over and above the sums above mentioned, a

sufficient sum or sums to fully satisfy the unpaid part of said indebtedness owing to said second party from said third parties, and that, upon full payment of said indebtedness, said second party shall transfer and assign to said trustee all of said securities, if any, remaining in his hands, to be held by said trustee as further security for the performance by said third parties of their said agreement of February 21, 1891.

"It is further mutually agreed that said trustee shall hold the title to said Iroquois Hotel property, so called, including both real and personal, leasehold or otherwise, this day sold under said levies and executions, in trust and subject to a lien of $6,000 for the payment of said indebtedness in favor of said second party, which said. $6,000 is itself, however, to be subject to the prior lien of $12,000, herein before mentioned, on said property, in favor of said first parties, anything in said agreement of February 21, 1891, to the contrary hereof notwithstanding.

"It is further hereby understood and provided that this agreement shall in no wise be construed to alter or affect the rights of said first parties under said agreement of February 21, 1891, except as to the time in which they shall receive the balance owing them, or their trustee, from said third parties.

"It is further hereby mutually understood and provided that this agreement is not to be construed so as to preclude said third parties from paying the said indebtedness to said second party direct at any time they may desire so to do."

On April 23, 1892, Barbour & Rexford wrote to the Smiths as follows:

"Yours of the 22nd inst. received. In reply, we make the following proposition: Our firm will furnish half of the money (if Mr. Henry T. Phillips will furnish half) necessary to buy the right of redemption of the Hotel Iroquois property from the sheriff's sale on execution to Andrew McLellan, trustee, on the receiver's sale thereof on Tuesday next, provided the total bid shall not exceed $9,000, provided you, Smith Bros., shall assign to us in advance of such sale, as security, half of your share of the moneys that shall be bid and paid on such sale; the bid and purchase to be in the names of Levi L. Barbour and Dwight C. Rexford and Henry T. Phillips. Upon full

performance of the contract now existing between you and Mr. Phillips and us in reference to said property, which contract, by the acceptance of this proposition, is in no way or manner to be affected, altered, or waived, we will convey to you, by quitclaim deed, the interest we may so acquire at such receiver's sale upon payment to us, within one year from the date of full performance of the contract above mentioned, of half of the amount of the total bid at said receiver's sale, and of all expenses, if any, together with a sum equal to 10 per cent. per annum computed on all sums remaining unpaid, and also, further, the additional sum of $500. In case said Phillips and we do not become the purchasers at such sale by reason of a bid exceeding $9,000, we are to be paid $100."

Appended to said letter, the Smiths signified their acceptance of its terms as follows:

"We hereby accept the foregoing proposition contained in letter dated April 23, 1892, consisting of this and another sheet of paper, and agree to faithfully and promptly perform our part of the contract thus made. We hereby

assign to Barbour & Rexford, as security for the performance by us of said contract, half of our share of the moneys that shall be bid and paid on the receiver's sale mentioned in said letter."

The circuit judge found that on May 4, 1891, Barbour, Rexford, and Phillips purchased at sheriff's sale, in the name of Andrew McLellan, as their trustee, the leasehold interest, the contingent right of purchase, and all the interest of the Smiths and Kemp in and to the hotel property for $17,021.08, and all the interest of said Smiths and Kemp in the personal property for $4,000, and that on said date a sheriff's deed was executed and delivered to McLellan; that on May 2, 1892, the right of Smith Bros. and Kemp to redeem from sheriff's sale was sold by the receiver of Smith Bros. & Kemp, duly appointed, for $1,100; that on October 22, 1892, the interest of Swing in the hotel property was conveyed to Andrew McLellan, as trustee, in consideration of the sum of $4,950.35; that Barbour & Rexford and Phillips, in addition to the sum

of $10,000 received from the Smiths, had invested and paid out in connection with said matter the sum of $17,380; that the Smiths had made two payments, aggregating $4,700, and there were payments due from them of about $17,000; that on December 27, 1893, the Smiths were in default in payment of principal and interest, and had been for 60 days; and that on that date notice to quit the premises was served upon the Smiths. The court found, as a matter of law, that the relation between plaintiff and defendant, under the agreement, is that of mortgagor and mortgagee, and therefore that said plaintiff was not

entitled to recover in this action.

Clearly, under all the authorities, the written instrument dated February 21, 1891, taken in connection with the agreement dated May 4, 1891, must be construed as a conveyance to the trustee as security for advances which were to be made by Barbour, Rexford, and Phillips. But it is urged that the trustee acquired the legal title through the sheriff, the receiver, and Swing; that the defeasance does not run from the grantors in the conveyances by which the trustee acquired the legal title, and therefore, if defendant has any remedy, it is not at law, but in equity. In the present case, however, the origin of the trustee's title was the instrument of date February 21, 1891. The Smiths were in possession of the property, and had evidently constructed the hotel upon it. The agreement clearly regarded them as having an interest in the real estate, and by it that interest was conveyed. It conveyed property interests that were the subject of mortgage. It anticipated an election under the terms of the agreement, and the acquirement of the legal title. It became operative as each advance was made, and extended the lien created by it to the title thus acquired. The court finds that the interest in the real estate sold at sheriff's sale for over $17,000, and the personal property for $4,000. That

agreement in and of itself gives character to the title acquired in pursuance of its terms. Plaintiff is proceeding under it. The relation was created and fixed by it. Purchases made under and' in pursuance of its terms must be treated as having been made for the benefit of the cestui que trust or mortgagor, and the trustee cannot set up the title thus acquired to deprive defendant of his rights under that instrument. The question here is whether the trustee, whose relation is clearly defined in the instrument under which he is proceeding, is entitled to the remedy which he has chosen. He has, in pursuance of the agreement, purchased these outstanding titles, and now invokes their aid to support proceedings, not in ejectment, dependent upon the title thus acquired, but to recover possession by virtue of the terms of the agreement, and such as he would be entitled to take only in case the instrument were a lease, or upon default in case of an agreement for a sale on condition. Dwight v. Cutler, 3 Mich. 566, and note. The judgment is therefore affirmed.

LONG and MONTGOMERY, JJ., concurred with MCGRATH, C. J.

HOOKER, J. Two men named Smith, together with one Kemp, owned a leasehold in certain premises. Complications arose which led to a written agreement between the Smiths, Barbour & Rexford, copartners, and one Phillips. Subsequently, one Anderson, in the capacity of trustee, began summary proceedings before a justice of the peace against the Smiths, who were in exclusive possession of the premises. The case found its way to the circuit court. from whose judgment the complainant appeals.

The claim of the complainant is that he is the legal owner of the leasehold. The defendants assert they are the legal owners, and that he is merely a mortgagee, so far as the leasehold is concerned, and that he has not the