The plaintiff brought this suit in the circuit court of Bates county for the purpose of setting aside a deed of trust upon eighty acres of land, situate in said county, and to remove from his title thereto the cloud cast upon it by said deed.
The land formerly belonged to one Herbert D. Gosman, who, on February 12, 1888, executed the deed of trust in question to W. A. Hastain, trustee, to'secure his promissory note for the sum of $1,000, of even date, payable to A. C. Avery, due three years after date, and bearing interest at eight per cent, which deed of trust was properly recorded on April 27, 1888.
On January 23, 1891, Gosman conveyed the land to Avery in full payment of the note, secured by said deed of trust, but neither the note nor deed of trust was present when said transaction took place. Avery, in writing, acknowledged receipt of the payment of said, note and recited therein the manner of its payment. At that time Avery was neither owner nor the holder of the note and deed of trust, and therefore omitted to deliver them to Gosman or to release the deed of trust of record. After .Gosman had deeded the land to Avery, the latter for a valuable consideration endorsed the note to the defendant, and subsequently thereto, on November 25, 1891, while Avery owned the land, he conveyed by warranty deeds sixty acres of same to the plaintiff, for which he agreed to pay $709, and the remaining twenty acres to one Eads, *717for which, he agreed to pay $300. > This latter twenty acres was later conveyed to plaintiff also. On January 16, 1893, Avery, after transferring the note to defendant, executed a quitclaim deed without request from plaintiff, whereby he attempted to release said deed of trust, but by error described the land as being in range thirty-nine, when, in fact, it was located in range twenty-nine.
Avery testified that it was his impression that at the time he took the deed from and executed the above receipt to Gosman, he (Avery) still held the note as owner thereof, and that his impression was that a short time thereafter, and according to his impression, after the maturity of the note, he transferred, indorsed and delivered the note to W. A. Hastain, the defendant, upon an indebtedness of his to the estate of P. and G. W. Walker, of which the defendant was administrator. Avery admitted that he was not at all positive as to the correctness of these impressions.
The defendant testified that he acquired the note prior to July 5, 1888, and shortly after the date of its execution; that he was at that time administrator of the estate of P. and G. W. Walker, to which estate Avery was indebted in a large sum; that as payment upon this indebtedness he turned over this and other notes to the defendant, as such administrator; that under an order of distribution of the assets of said estate, this note fell to the two Middaugh heirs, who, as grandchildren of one of the Walkers, had an interest in the estate. The defendant Avas guardian and curator of these Middaugh heirs, as well as administrator of the Walker estate; that in his next annual settlement as such administrator, mude July 5, 1888, he accounted for a lump sum, which included the amount of this note collected from Avery upon his indebtedness to the estate, and in his annual settlement as guardian and curator of Pleasant W.' Middaugh, a minor, made in the probate court of Henry *718county, on July 5, 1888, lie charged himself with this note secured hy the deed of trust in question.
The annual settlement of W. A. Hastain (the defendant) as guardian and curator of Pleasant W. Middaugh, a record and court paper of the prohate court of Henry county, filed and approved July 5, 1888, was introduced in evidence and shows among the assets of the ward in the hands of the guardian and curator the following:
“To % amt. received from P. &. G-. Walker estate, and on Feb’y. 12, 1888, loaned to Herbert D. Grosman, at 8 per cent, secured by a deed of trust on Bates Co. real estate, being 80 acres in twp. 42, R. 29, $500.”
Hon. R. E. Lewis, district judge in the State of Colorado, and for eighteen years prior to 1898 a member of the Clinton, Missouri, bar, testified by deposition that he was attorney for the defendant in connection With his settlements as administrator of the Walker estate, and as guardian and curator of the Middaugh heirs; that Avery turned over the note and deed of trust in question to the defendant as such administrator “very soon after the same were executed,” as payment upon the indebtedness of from ten to twelve thousand dollars due from Avery to the Walker estate, and said note and deed of trust “were continuously thereafter carried by Hastain, as guardian and curator of said Middaugh heirs, as a part of the assets of their estate.”
Upon final settlement with the Middaugh heirs, after they became of age, this note fell to the defendant in his individual capacity, by agreement, he paying them the amount thereof in cash.
Avery testified that prior to this sale to the plaintiff, he (Avery) tried to induce the defendant to take the land in payment of the note secured by the deed of trust upon it, but defendant, after making a trip to the land and looking it over, said that he would rather have one thousand dollars than the land, and *719that he -would not take the land for the note; that he (Avery) then had some negotiations with Stayton, the plaintiff, and reported hack to the defendant that he could sell the land for $1,000 on time, ánd the defendant told him to do so; that the plaintiff then purchased the land from him (Avery), and in time paid the full amount of the purchase price in installments. The plaintiff testified that he never knew anything about there being a deed of trust upon the land until about two years before the institution of this suit; that he never at any time made any examination of the records, nor caused any to be made, to ascertain whether or not there were any liens or encumbrances upon the land. He testified that about one week before the date of his purchase of the land, and while negotiations were pending therefor, he went to Avery’s office in Clinton, and there met two old men, to one of whom Avery said: “This [referring to plaintiff] is the old man who is going to buy our Bates county land;” that one of these old men looked like the defendant, but referring to a blemish which was on the defendant’s nose at the time of the trial he said: “That place on his nose don’t look just right, don’t think it was there.” It is most likely that plaintiff was mistaken as to one of these old men being the defendant, because the blemish referred to had been upon defendant’s nose for about twenty years, and is very noticeable, as defendant testified, and was there in 1891, when this occurrence is claimed to have taken place; the defendant denied that such a remark was ever made in his presence; and Avery testified as follows: “It is my impression that it was right there in the office, and I made this remark to him [Hastain], in the presence of Stayton at the time, ‘Here is these men come down to buy our land,’ and I told him then, or that afternoon, they had taken it on time.”
The defendant, in his testimony, denied that he ever told Avery to sell the' land for $1,000, or for any *720other sum, and testified that he never knew the land, had been sold at all until about two years before the trial of this cause, at which time Avery so informed him; that he thereupon asked Avery how it was that he could sell the land, when he (the defendant) held a deed of trust upon it, to which Avery replied: ‘ ‘Well, I sold it for what you said it was worth. ’ ’
The defendant further testified that he at no time gave Avery or any other person to understand that he would relinquish his rights under his deed of trust, but at all times looked to his lien upon the land thereunder. The defendant testified, Avery admitted, and it was undisputed, that defendant had the note and deed of trust continuously in his possession ever since it was first turned over to him, and that never until two years before the institution of this suit was any demand made upon him to release the deed of trust, or surrender the note. And it is also undisputed that neither Grosman, nor the plaintiff, ever made any demand or request of either the defer dant or Avery that the deed of trust he released.
The note has been kept in force by the payments made upon it from time to time by Avery, who was liable upon it, both as indorser and by virtue of his obligation to plaintiff under the covenants of his warranty deed.
The evidence shows that the plaintiff has put some valuable improvements upon the land since he purchased it, but there is no evidence that the defendant had any knowledge whatever that same was being done.
There was some testimony introduced by plaintiff hearing upon the question of adverse possession, and showing that he had made valuable improvements upon the land since he had purchased it from Avery, but that evidence will be further considered later on.
The trial court found the issues for plaintiff and entered a decree setting aside the deed of trust and *721clearing plaintiff’s title from the cloud thereof and divesting the defendant from all right, title and interest in and to said land under and by virtue of said deed of trust.
In due time and in proper form defendant appealed said cause to the Kansas City Court of Appeals, which Was by that court transferred to this court, because title to real estate is involved in the cause.
I. This record conclusively shows that Hastain, the appellant, as administrator of the estate of P. & Gr. W. Walker, sometime prior to July 5th, 1888, in good faith and for a valuable consideration, acquired both the legal and equitable title and possession of the note and deed of trust described in the pleadings and evidence in this case, and that subsequently he individually acquired title to both, and before he can be deprived of his legal rights thereto it must be shown by clear, positive and convincing evidence that he had parted with his ownership prior to the institution of this proceeding. Now, in what way and in what manner has the respondent attempted to show plaintiff’s disposition of the note and deed of trust?
If I correctly understand counsel for respondent, his contentions are that appellant parted with his interest in and to said note and deed of trust in one or all of the following modes:
First: By authorizing Avery to sell the land to respondent, or that Avery sold the land to respondent with appellant’s knowledge and consent.
Second: That appellant is estopped from asserting his interest in said note and deed of trust, for the reason that he stood by, without objection, and permitted respondent to make valuable and lasting improvements upon the land, at great cost, and that it would be unjust and inequitable to now permit ap*722pellant'to enforce Ms legal rights under the note and deed of trust, and;
TMrd. That appellant’s rights and interests in and to the note and deed of trust are barred by the Statute of Limitations, or rather that respondent has acquired title to the land described in the deed of trust by adverse possession.
We will discuss and dispose of those contentions in the order stated.
As to the first, it is sufficient to state that this record is barren of all evidence Worthy of credence which even tends to show appellant authorized Avery to sell and convey the land to respondent. While Avery, by insinuation more than by direct testimony, tried to convey the idea to the court that he had authority from respondent to sell the land, yet that testimony of Avery is flatly and unconditionally denied by appellant. And from the disclosures made by this record, we have no hesitancy whatever in saying that the dishonest conduct of Avery all through this transaction shows his testimony to be. entirely unworthy of belief.
And the contention that Avery sold the land to respondent with the knowledge and consent of appellant is equally unfounded and unsupported by the evidence. The greater weight of the evidence not only disproves that contention but it is conclusive that appellant did not know the land had been sold at all until about two years before this suit was instituted.
As to the second contention made by counsel for respondent, which regards the estoppel set up against appellant’s right to assert his title and interests in and to the note and deed of trust, it may also be said that there is no substantial evidence to be found in this record which gives support to. that contention. The evidence shows that appellant not only did not stand by and see respondent make the improvements upon the land, without objection, but it also shows that *723¡he did not know that the land had been sold to him until some two years before this suit was brought, and could not, therefore, have acquiesced in the making of- the improvements by respondent.
The third and last contention presented by respondents is, that he has been in the actual, open, exclusive and adverse possession of this land for a period of more than ten years, next before the institution of this suit, claiming title thereto against the world, and especially against the appellant. The record shows, and it is undisputed, that on November 25,1891, Avery, by warranty deeds, conveyed sixty of this eighty acres of land to respondent for the sum of $700, and the remaining twenty acres to Eads for the sum of $300, which latter tract respondent subsequently acquired from Eads. They immediately took possession of the land under those deeds and have been in the unbroken possession ever since, and claiming title thereto and thereunder. But that alone is not sufficient to bar appellant’s rights under the deed of trust, because the evidence wholly fails to show any act of adverse possession as against appellant as mortgagee.
All of the authorities sustain the proposition that the relations existing between the mortgagor and mortgagee are presumed to be friendly and not hostile until the contrary is shown, and that friendly relation must be presumed to continue until disclaimed by declarations or acts of unmistakable hostility, and the purchaser from the mortgagor with actual or constructive notice of the existence of the mortgage stands in the same relations to the mortgagee as did the original mortgagor. [Chouteau v. Riddle, 110 Mo. 366, and cases cited; Lewis v. Schwenn, 93 Mo. 26; Combs v. Goldsworthy, 109 Mo. l. c. 160; Benton County v. Czarlinsky, 101 Mo. 275.]
We are, therefore, of the opinion that none of the three contentions of respondent are tenable.
*724II. Counsel for both appellant and respondent discuss many secondary or minor questions to those before determined, which only amplify or throw light upon those questions but do not control them, which makes it unnecessary to consider them in this opinion.
We are, therefore, of the opinion that the judgment should be reversed and the bill be dismissed. It is so ordered.
All concur, except Graves, J., not sitting.