The court found that the terms under which McGibbeny took title to the real estate and the obligations be*588tween Mm and the plaintiff were all expressed in writing and that there was no oral agreement. The appellant has not satisfied us that there was any mistake in this finding, nor in the conclusion of law that Mc-Gibbeny was not a trustee for the plaintiff. The paper executed January 29,1908, by McGibbeny and delivered to McAllister did not create a relationship of trust. It was a promise to the plaintiff to perform according to the conditions therein expressed and for the plaintiff’s benefit but made in behalf of other persons, creditors of Fetterman for whom McGibbeny was trustee. The agreement referred to gave the plaintiff a preference over the mechanics’ lien creditors in the matter of the payment of interest on the plaintiff’s mortgage, but the security for his debt was not in the McGibbeny agreement but in the recorded, mortgage which had a priority over the mechanics’ liens. The liability of McGibbeny, Soffel and Breitweiser as determined by the adjudication of the trial judge arose out of the fact that the two latter acting for McGibbeny received a considerable sum for rent of the premises which was payable to the latter under McGibbeny’s agreement with the plaintiff. They were held chargeable therefore because they had funds in their possession which were applicable to the plaintiff’s mortgage under that agreement. The appellees are not raising the question as to the jurisdiction of the court under the bill to enter the decree against Mc-Gibbeny, Soffel and Breitweiser, and that question need not be considered. Nothing presented in the evidence or the argument of the learned counsel for the appellant convinces us that the court was in error in ascertaining the amount with which the appellees should be charged.
The decree is therefore affirmed at the cost of the appellant.