Opinion by
Henderson, J.,
The plaintiff’s action is for the recovery of money paid to the defendant. The basis of the claim is an instrument in writing signed by the defendant which is on its face a declaration of trust. The allegation of the statement is that this paper was signed by the defendant at the time the payment of $1,000 was made by the plaintiff, but this averment seems to be contradictory to the instrument itself. It is dated February 23, 1906, and sets forth that the property therein described was bought by the defendant from one Gardner on October 18, 1905, for the sum of $74,375 of which amount $34,786 was a cash payment and the balance was secured by a mortgage. It recites the fact of the conveyance by Gardner to the defendant, the cash payment and the delivery of a mortgage for the re*511mainder of the purchase money. There was attached to it a blue print showing that the property was divided into 175 lots, the value of each of which was fixed at $425. Acknowledgment is then made that $1,000 of the aforesaid consideration was paid by the plaintiff and that the defendant holds the title in trust for the plaintiff, and connected with this declaration is the promise at any time thereafter on the request of the plaintiff to convey the said premises by a good and sufficient deed “free from all encumbrances placed thereon by me” in such manner as by the plaintiff shall be reasonably required. Apparently therefore the plaintiff was one of the contributors to the hand payment on the property when it was conveyed to the defendant and one of the purchasers. Whether the plaintiff’s payment was made at that time or at the date of the declaration of trust is not a controlling fact, however. The general terms of this declaration might apply to the whole of the land described therein and make the defendant trustee for the plaintiff as to all of it, but a more particular examination of the document shows that its operation should be limited to the interest for which the plaintiff had paid. It is not credible that it was the understanding that the plaintiff became entitled to have a conveyance of $74,000 worth of real estate free from liens for the consideration of $1,100. What he got was an interest in the 175 lots proportionate to the relation which his payment bore to the whole amount of purchase money. The payment by him was not for individual lots but for a share of the whole. The instrument gives notice that the property is incumbered to the amount of $39,589 on the purchase money mortgage and there was no deception or misleading of the plaintiff therefore with reference to the condition of the property in that respect. It is not alleged that the money was paid to the defendant on any promise or understanding that it should be returned to the plaintiff. It was received by the defendant for the purpose of investment in this particular piece of property and was so invested by him. The plaintiff intended to acquire an *512interest in the land and he did so acquire it. The defend-, ant did with the money just what was contemplated by/ the plaintiff. There was therefore neither an express nor an implied obligation that it should be returned. If the payment of $1,000 was made as the plaintiff alleges on February 23, 1906, he had notice by the paper which the defendant gave him that he was investing in an incumbered piece of land and the subsequent failure of the defendant to convey to him by good and sufficient deed free from incumbrances the share for which he paid did not create a right of action to recover the amount invested. The meager evidence introduced in the case does not show the plan according to which the balance of the purchase money was to be paid and the property relieved of the incumbrance, but it does clearly appear that the plaintiff’s investment was made with a knowledge of that incumbrance and that the defendant applied the plaintiff’s money on the purchase price. The case is destitute of evidence that the plaintiff’s money was not used for the purpose for which it was paid to the defendant or that there was any misappropriation of it, and evidence of this kind was necessary to entitle the plaintiff to recover in this action. The authorities cited by the learned counsel for the plaintiff relate to cases where money is received for a purpose which is afterward abandoned by the parties or where there is a fraudulent taking of a title, intended to be joint, in the name of one of the owners or where there is a misapplication of the fund or where money was received for a special purpose and not so applied. The principle announced in the cases is plain but is not applicable to the case at bar under the evidence.
The judgment is affirmed.