We have no power to right the wrong which has been done the plaintiff in this case by the systematic villainy of the person whom she chose as her trustee. We can only determine to whom belong the note and mortgage, which are the subject of the action, from the evidence in the case, applying thereto the rules of law which govern the respective rights. The facts are not complicated, and we think, as between the parties, that both the legal and equitable right is clear. The plaintiff resides in London, England; the defendant in France. Both selected one Francis H. Weeks as a trusted agent to *129invest their money, and he betrayed the trust placed in him. It appears that Weeks was in the habit of investing the moneys which he held as trustee in mortgages which he took in his own name, rendering statements to his eestui que trust. So far as is essential to a disposition of this action, it is disclosed by the record that the plaintiff had in the hands of Weeks $2,000, which he invested, or claimed to have invested, in a mortgage executed by one Parker for the sum of $2,000. We may say here that the fact of any of these investments, in the respective mortgages, except the note and mortgage given by Sheehan, is supported only by the oral or written declaration of Weeks. Rone of the instruments are produced, and the parties only know of their existence by the representations made to each by Weeks. We assume, however, that Weeks had a mortgage executed by Parker for $2,000, which was the property of the plaintiff. On October 20, 1892, Weeks informed the plaintiff that the Parker mortgage had been paid, and that he had reinvested the money in the Sheehan note and mortgage, and upon that date he mailed to her, at Boston, a statement of the securities then in his hands belonging to the plaintiff, in which is set out the Sheehan note and mortgage for the sum of $2,000. This was the first that plaintiff knew of the change in investment. On November 4,1892, the plaintiff saw Weeks and spoke to him about the change, and Weeks then informed her that the Parker mortgage had been paid, and that he supposed she wished the money invested, and that it would be all right. The plaintiff sailed for Europe the next day, and has never seen Weeks since. He continued to pay her interest upon this sum, remitting the same to plaintiff while abroad until January 30, 1893. Except as we shall hereafter notice, this constitutes the evidence upon which plaintiff founds her claim to the Sheehan note and mortgage.
Defendant’s claim is supported in this wise: He forwarded to Weeks a draft, in August, 1890, for $1,437.60. This money belonged to defendant’s sister, which she had authorized him to invest. In response he received a letter from Weeks acknowledging receipt of the same and stating that he had added to such sum several items of interest then due to the defendant from other instruments of his own in the hands of Weeks, sufficient to make *130the sum $2,000, and that he had invested that amount in a mortgage for $2,000 due June 11, 1892, interest eight per cent, payable semi-annually. On August 2'T, 1891, Weeks wrote the defendant, rendering him a statement of account and inclosing a draft for “ $80 for your sister’s account,” which he stated he had overlooked when due. On December 15, 1891, he remitted draft for 415 francs to the defendant, stating that it was “ in payment of the interest of $80 due your sister.” On May 11, 1892, Weeks wrote the defendant: “ I have arranged to make a new loan for your sister of $2,000 in a mortgage to run three years at 8% and I presume the matter will he closed during the present week; in which case I will remit to you the interest up to the time when the new mortgage is taken, and will take over the existing $2,000 mortgage from that time to myself. I do that in order to avail myself of an oppor tunity to get a good mortgage. The details of this latter investment I will send you when I make the remittance.” On June 23, 1892, Weeks wrote the defendant a. letter containing a statement of account in which appears an item, “ Due your sister on her mtg. 80.00.” In this letter he states: “Tour sister’s mortgage was paid in full, with interest to maturity, and I have reinvested the amount in mortgage made by William G-. Sheehan for $2,000 at 8 per cent, dated May 16, 1892, due in three years, interest ¡sayable semiannually, May 16th and November 16th.” On December 21,1892, Weeks wrote the defendant a letter remitting a draft and stating: “ Interest on Sheehan (for ujc your sister) $80.”
After W eeks had made his assignment and absconded, there was found in his safe an envelope containing the Sheehan mortgage and an assignment of the same executed by Weeks to the defendant. This assignment bore date May 23,1892, but was not acknowledged until April 26, 1893, about the time Weeks absconded. Upon the envelope containing these papers was indorsed, in Weeks’'handwriting, “Mortgage. Wm. G. Sheehan to Elisee Oharlier $2,000. This is the property really of Mr. Gharlier’s sister, and he so understands, hut for convenience was transferred to his name.” This constitutes the substantial evidence upon which the defendant founds his claim. It is not disputed ; indeed, the claim of the respective counsel is that these declarations made by Weeks to each of the parties constitutes an express declaration of trust which had *131tlie effect of vesting an equitable title to the mortgage in the party to whom the declaration of trust was made, and such undoubtedly is the law. (Martin v. Funk, 75 N. Y. 141.) But here the declaration of trust is to each party, and so far as the declaration itself is concerned is as to each party absolute and unequivocal. So far, therefore, as form of words go each are equal. But this title, like all others where rights are equal, is subject to the rule that interests obtained prior in point of time become prior in point of right. The maxim qui prior est tempore potier est jure controls and governs the rights of the parties. (Underhill on Trusts & Trustees, 492.) Measuring, therefore, the rights of these parties by this rule, we find that defendant’s declaration of trust is prior in point of time. The plaintiff’s money was in the Parker mortgage. The defendant’s money was in the Uougier mortgage. On October 20, 1892, Weeks made his first declaration to the plaintiff, and she was then informed, for the first time, that her money was invested in the Sheehan mortgage. This was six months after the mortgage was executed. On May 11, 1892, Weeks notified the defendant that he proposed to invest his or his sister’s money in a $2,000 mortgage. On June 23, 1892, he notified the defendant that his sister’s mortgage had been paid in full and that he had invested that money in the Sheehan mortgage, and described the same. Weeks’ declaration of trust, therefore, was made to the defendant nearly four months before the plaintiff had any knowledge whatever upon the subject. It is, therefore, plain that so far as the title to this mortgage is based upon the declaration of trust made by Weeks, the defendant is clearly prior in point of time and, therefore, prior in point of right. If the equitable right of the parties was absolutely equal so far as the declaration of trust is concerned, still the defendant must succeed, for, by virtue of the assignment, he holds the legal title, and the rule is well settled that where the equities are equal the legal title will prevail.
If the declaration of trust to the plaintiff had been prior, in point of time, to that of the defendant, then the legal title would not avail to defeat it. Nor can such result be reached if it be established as a fact that the plaintiff’s moneys actually formed the consideration for the mortgage. The latter is the ground upon which the court has placed its decision; and if such be the fact, then plaintiff’s title *132must prevail over both the declaration of trust to the defendant as well as the assignment. We are, therefore, to see if this claim finds support in the evidence. The law requires that the party asserting such fact, is bound to establish the same. (Higgins v. Higgins, 14 Abb. N. C. 13 ; Ferris v. Van Vechten, 73 N. Y. 113.) The court has found that it was plaintiff’s money that went into the Sheehan mortgage. It arrived at this conclusion, as stated in the finding, from the following considerations: “ Plaintiff’s first mortgage of $2,000 became due on May 15, 1892. The Sheehan note and mortgage bear date May 16, 1892. At this time, that is, May, 1892, the defendant’s money was invested in a mortgage due June 11, 1892. From a letter written by Weeks, dated the 23d day of June, 1892, it appears that the mortgage held by the defendant was not paid off until maturity, that is, until the 11th of June, 1892. * * * The presumption, from the evidence, is that the money of the plaintiff was in the possession of Weeks at the time the Sheehan mortgage was executed, while the money of the defendant did not come into his possession until about a month afterwards.” We think that this finding fails of proof to support it. The Parker mortgage was taken in February, 1892. There is absolutely no-proof appearing in the record, either in the declaration of Weeks or elsewhere, as to when this mortgage fell due. Interest was payable on the fifteenth day of May and Movember, respectively, and that is all that appears respecting terms or time of payment. The assumption, therefore, that the money from the Parker mortgage was in the hands of Weeks at the time when the Sheehan mortgage was taken on the 16th of May, 1892, is only an assumption, without proof to sustain it, and in no sense is any presumption raised by the Parker mortgage that the proceeds of that mortgage entered into the Sheehan mortgage. Mor is there any basis for the presumption that at the time when the Sheehan - mortgage was taken Weeks had this money, the proceeds of the Parker mortgage, in his hands. If we look at Weeks’ statements, made to the plaintiff, they do not aid to a solution of this question. He simply states that the Parker mortgage was paid off, but when this was done he does not say, and nothing is found in the testimony of plaintiff, that this money formed' the consideration for the Sheehan mortgage, except the bare declaration of Weeks. Whatever *133presumptions arise, if there be any, from the declarations of Weeks are as strong in favor of the defendant as in favor of the plaintiff, while the similarity of dates between the time of payment of the Parker mortgage and the execution of the Sheehan mortgage creates no presumption whatever for the reason that there is no proof of such similarity, as there is no proof when the Parker mortgage fell due, or proof that at this time Weeks had a dollar of plaintiffs money in his hands from that source or any other. We are of opinion, therefore, that defendant has established title to this mortgage, both legal and equitable, and was, therefore, entitled to judgment in his favor.
The judgment should, therefore, be reversed, but, in view of the peculiar equities, it should be without costs.
All concurred.
Judgment reversed and new trial granted, without costs of this appeal.