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such gifts raised a resulting trust for the donor. In conveyances of this kind to the donor's family the analogy of the common law was followed, whereby if a feoffment was made to a stranger without consideration a use resulted to the feoffor; but if a feoffment was made to a wife or child no use resulted, for the consideration of blood was held a good consideration, and an advance or settlement was presumed. So marriage was not only a good but a valuable consideration, and no trusts could result from conveyances made in consideration of marriage, either of the grantor or of any member of his family. But if voluntary conveyances to wife or children were made by a man deeply indebted, or with an intention to delay his creditors, while he could not raise a trust in his own favor, yet his creditors could avoid the conveyances or raise a trust upon them in their own favor to the extent of their claims.1

§ 165. If the voluntary conveyance is made for some illegal or fraudulent purpose, whether it is a common-law or a modern conveyance, no trust will result to the grantor; as, if the voluntary conveyance is made to delay, hinder, and defeat creditors, or to give a man a colorable qualification to vote, or to sit in parliament,3 or to kill game, or to disqualify the

1 Dunnica v. Coy, 28 Mo. 525; Spirett v. Willows, 3 De G., J. & S. 293; Robinson v. Robinson, 17 Ohio St. 430; Baldwin v. Campfield, 4 Halst. Ch. 891; Spicer v. Ayers, 2 N. Y. Sup. Ct. 626.

2 Cottington v. Fletcher, 2 Atk. 156; Chaplin v. Chaplin, 3 P. Wms. 233; Muckleston v. Brown, 6 Ves. 68; Stewart v. Iglehart, 7 Gill & J. 132; Bryant v. Mansfield, 22 Me. 310; Randall v. Phillips, 3 Mason, 378; Wilson v. Cheshire, 1 McCord, 233; Mason v. Baker, 1 A. K. Marsh. 208; Chamberlayne v. Temple, 2 Rand. 384; Stewart v. Dailey, 6 Litt. 212; Jackson v. Dutton, 3 Har. 98; McClure v. Purcel, 3 A. K. Marsh. 61: Steele v. Worthington, 2 Ham. 82.

8 Pitt's Case, cited Amb. 266; Curtis v. Perry, 6 Ves. 747; Cutler v. Tuttle, 19 N. J. Ch. 553, 562.

♦ Roberts v. Roberts, Daniel, 143; Brackenbury v. Brackenbury, 2 Jac. & W. 391; Cecil v. Butcher, 2 Jac. & W. 565.

grantor for an office, or to commit any other fraud,2 for the reason that the rules of law cannot be used, controlled, or avoided by parties with a fraudulent intent to do that indirectly which they cannot do directly.

§ 165 a. A resulting trust is to be performed or executed by the trustee by transferring the title to the cestui que trust at his request; but if the trustee has incurred any expenses upon the estate by paying taxes or making improvements, or advancing part of the purchase-money, he will be allowed to hold the estate until his advances are repaid.5

1 Birch v. Blagrave, Amb. 264; Gaskell v. Gaskell, 2 Y. & J. 502; Vandenberg v. Palmer, 4 K. & J. 204; Childers v. Childers, 1 De G. & J. 482; Field v. Lonsdale, 13 Beav. 78; Doe v. Rutledge, Cowp. 705.

2 Tipton v. Powell, 2 Cold. 19; Haigh v. Kaye, L. R. 7 Ch. 473; Ownes v. Ownes, 8 C. E. Green, 60; Miller v. Davis, 50 Mo. 572.

Scobie v. Blanchard, 3 N. H. 170; Pritchard v. Brown, 4 N. H. 401; Hutchins v. Heywood, 50 N. H. 488; Sugd. V. & P. 416. 4 Millard v. Hathaway, 27 Cal. 119.

Malroy v. Sloans, 44 Vt. 311.

CHAPTER VI.

CONSTRUCTIVE TRUSTS.

§ 166. General nature of constructive trusts. They arise from fraud.

§ 167. Jurisdiction of equity over them, and the relief given by converting the of fending party into a trustee.

§ 168. Classification of constructive trusts.

§ 169. General definition of a fraud in equity.

§ 170. Principles upon which equity gives relief against fraud.

§ 171. Actual fraud, or suggestio falsi.

§ 172. Illustrations of actual fraud.

§ 173. The misrepresentations and frauds that equity will relieve against.

§ 174. The misrepresentation must be of facts material to the contract.

§ 175. The misrepresentation must be of something peculiarly within the party's knowledge.

§ 176. The relief will depend upon the form in which it is sought.

§ 177. Fraud that arises from concealment, or suppressio veri.

§ 178. This kind of fraud depends much upon the relation of the parties.

§ 179. When a person may not be silent.

§ 180. Suppressio ver is generally in law an affirmative act.

§ 181. Courts will relieve where acts are fraudulently prevented from being done illustrations.

§ 182. Trust established where a party fraudulently prevents a will from being

made in another's favor.

§ 183. Trust established in odium spoliatoris.

§ 184. Trust established upon a conveyance made in ignorance or mistake.

§ 185. But if the conveyance is a compromise courts will support it if possible.

§ 186. Trust established when a deed by mistake contains more land than was intended.

§ 187. Misrepresentation of the value of property and inadequacy of consideration.

§ 188. Catching bargains with young heirs and reversioners.

§ 189. Trust arising from mental incapacity or imbecility of parties.

§ 190. Mental weakness-old age.

§ 191. Drunkenness.

§ 192. Duress-oppression and distress.

§ 193. Where several of these circumstances are found combined.

§ 194. Frauds that arise by construction from the fiduciary relations of parties.

§195. Between trustee and cestui que trust.

§ 196. Renewal of leases in his own name by trustee.

§§ 197, 198. Contracts prohibited between trustee and cestui que trust, but the cestui

que trust alone can avoid them.

§ 199. Rule does not apply to dry trustees.

§ 200. Guardians and wards.

$201. Parents and children.

§§ 202, 203. Attorney and client.

§ 204. Rule applies to all confidential advisers.

§ 205. Administrators and executors.

§ 206. Principal and agent.

§ 207. Directors of corporations.

§ 208. Trusts that arise out of inducements held out for marriage.

§ 209. Other fiduciary relations.

§ 210. Undefined fiduciary and friendly relations.

§ 211. Trusts arising from the frauds of third persons.

§ 212. Frauds upon third persons as creditors.

§ 213. Conveyances by man or woman on the point of marriage.

§ 214. Illegal and immoral contracts.

§ 215. Fraud by pretending to buy for another.

§ 216. Devises or conveyances upon secret illegal trusts.

§ 217. Purchases from trustees with knowledge of the trusts.

§ 218. Purchases without notice of the trust.

§ 219. The safeguards thrown around such purchases.

§ 220. The consideration in such cases.

§ 221. The consideration must have been actually paid.

§ 222. Notice of the trust to whom it may be.

§223. Notice may be actual or constructive.

§ 224. Purchase of property from executors or administrators—real estate.

§ 225. Personal property.

§ 226. Constructive trusts may be proved by parol-statute of frauds does not apply. § 227. The right to set aside a conveyance for fraud is an equitable estate that may be conveyed and devised.

§§ 228-230. Statute of frauds and the time within which steps must be taken to avoid a fraudulent conveyance.

§ 166. THE trusts thus far considered arise from the express agreements and intentions of the parties, or from their intentions implied from their agreements, or result from their express or implied agreements. These trusts arise, result, or are implied from the contracts and relations of the parties. The intention of the parties as manifested in contracts made in good faith is the foundation of them. There is another large class of trusts which arise from frauds committed by one party upon another. Thus, if one party procures the legal title to property from another by fraud or misrepresentation or concealment, or if a party makes use of some influential or confidential relation which he holds towards the owner of the legal title, to obtain such legal title from him upon more advantageous terms than he could otherwise have obtained it, equity will convert such party thus obtaining

property into a trustee. If a person obtains the legal title to property by such arts or acts or circumstances of circumvention, imposition, or fraud, or if he obtains it by virtue of a confidential relation and influence under such circumstances that he ought not, according to the rules of equity and good conscience as administered in chancery, to hold and enjoy the beneficial interest of the property, courts of equity, in order to administer complete justice between the parties, will raise a trust by construction out of such circumstances or relations; and this trust they will fasten upon the conscience of the offending party, and will convert him into a trustee of the legal title, and order him to hold it or to execute the trust in such manner as to protect the rights of the defrauded party and promote the safety and interests of society. Such trusts are called constructive trusts. They differ from other trusts in that they are not within the intention or contemplation of the parties at the time the contract is made from which they are construed by the court, but they are thrust upon a party contrary to his intention and against his consent. The reason is that courts of equity have a large jurisdiction over all matters of trust and confidence. They control and direct their administration, and in certain cases they annul and put an end to them by directing the trustee to convey the trust property to the person beneficially interested. They can also remove the trustees and appoint new ones. Therefore, courts of equity by raising a trust by construction in cases of fraud can do equal and complete justice between the parties. By this fiction of a constructive trust courts of equity have great powers. They can order the constructive trustee to hold the legal title for the original owner upon just and proper terms. If he has paid any value for the legal estate, they can order the estate

1 Thompson v. Thompson, 16 Wis. 91; McLane v. Johnson, 43 Vt. 48; Pillow v. Brown, 26 Ark. 240; Collins v. Collins, 6 Lansing, 368; Hollingshed v. Simms, 51 Cal. 158; Hendrix v. Nunn, 46 Tex. 141.

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