relied upon them. If, however, a person states his intention to confer property upon one of the parties to a marriage, as that he has made his will giving a certain estate to one of the parties, and that he does not know any reason, or have any intention of altering it, but at the same time refuses to make any contract or agreement, or to be bound in any way not to alter his will, equity will not compel the execution of such a representation or intention; and the estate named cannot be affected by a constructive trust in favor of the party to the marriage, in case the will is afterwards altered, and the estate is given to some other person.2

§ 209. These rules apply to every kind of fiduciary relation. The principle is the same in all of them. Assignees of bankrupt or insolvent estates are subject to the same rules, whether they are appointed by courts and by operation of law, or by voluntary assignments, or by deeds of trust for creditors. So the solicitors of a bankrupt cannot purchase his property. Committees or guardians of a lunatic cannot obtain the ownership of the property, nor can the directors,

1 Hamersley v. De Biel, 12 Cl. & Fin. 45; Downes v. Jennings, 32 Beav. 290; Hunt v. Mathews, 1 Vern. 408; Walford v. Gray, 11 Jur. (N. s.) 106, 403; Jordan v. Money, 5 H. L. Cas. 185; 8 Jur. (N. s.) 281; Caton v. Caton, L. R. 2 H. L. 127; Coverdale v. Eastwood, L. R. 15 Eq. 122; Saunders v. Cramer, 3 Dr. & War. 87; Moorhouse v. Calvin, 15 Beav. 341; Laver v. Fielder, 32 Beav. 1; 1 Story's Eq. Jur. §§ 268-272.

2 Maunsell v. Hedges, 4 H. L. Cas. 1039; 1 Lead. Ca. Eq. 782; Kay v. Crook, 3 Sm. & Gif. 407; Stroughill v. Gulliver, 2 Jur. (N. s.) 700; Randall v. Morgan, 12 Ves. 67; De Biel v. Thompson, 3 Beav. 469, 475, 1 Jon. & La. 539, 569.

8 Ex parte Hughes, 6 Ves. 617; Morse v. Royal, 12 Ves. 372; Ex parte Morgan, ib. 6; Ex parte Lacey, 6 Ves. 625; Ex parte Reynolds, 5 Ves. 707; Ex parte Bennett, 10 Ves. 381; Campbell v. McLain, 23 Leg. Intel. 26, Phila.; Fisk v. Sarber, 6 W. & S. 18; Beeson v. Beeson, 9 Barr. 284; Dorsey v. Dorsey, 3 H. & J. 410; Chapin v. Weed, 1 Clark, 264; Saltmarsh v. Beene, 4 Porter, 283; Harrison v. Mocks, 10 Ala. 185; Wade v. Harper, 3 Yerg. 383.

• Wright v. Proud, 13 Ves. 136; Campbell v. McLain, 51 Pa. St. 200.

trustees, or governors of a charity so deal with the funds of the charity, or take leases of the charity lands, as to make a profit to themselves.1 And so of partners and joint contractors, or purchasers and receivers. In all these cases the fiduciary must account for all the trust property that comes to his hands, whether by purchase or otherwise, and for all profits which may come to him by dealing with such property, and even for all bonuses or gratuities given to him by strangers for contracts made with them in relation to the trust property.2

§ 210. But equity goes even further than this. It not only watches over these defined relations of parties, but it scrutinizes the undefined relations of friendly habits of intercourse, personal reliance, and confidential advice. It is well known that habits of kindness, confidence, and trust grow between neighbors and friends; and if advantage is taken of such relations to obtain an unfair bargain, equity will set it aside or convert the offending party into a trustee. Of course no rules can be laid down by which to judge all such cases; for every case must of necessity depend upon its own facts.5 Nor will a gift or sale be set aside merely because it is to a confidential friend or adviser, even though it is made by an old and infirm person, or by one of weak mind; but if there is any proof of any superadded concealment, misrepresentation, or contrivance, or any art by which the party was thrown off his guard, or unduly influenced by his trust and confidence

1 Attorney-General v. Clarendon, 17 Ves. 500.

2 Bailey v. Watkins, Sug. Law of Prop. 726; Parsball's App. 65 Pa. St. 233; Swissholm's App. 56 Pa. St. 475; King v. Wise, 43 Cal. 628; Carr v. Houser, 46 Ga. 477.

8 Hunter v. Atkins, 3 M. & K. 140; James v. Holmes, 8 Jur. (N. s.) 553, 732; Falk v. Turner, 101 Mass. 194.

▲ Ibid.; Dent v. Bennett, 4 M. & Cr. 277; Smith v. Kay, 7 H. L. Cas. 750.

Hunter v. Atkins, 3 M. & K. 140.

in, or partiality for a supposed friend, equity will interpose and correct the wrong. Dealings of ship-owners with their masters, of parishioners with their clergymen,3 of medical advisers with their patients, of friends and neighbors who by their situation and habits of intercourse have obtained the confidence of each other,5 and of a man and woman living together as husband and wife, come within this rule. And so the relation of landlord and tenant, partner and partner, principal and surety, and tenants in common may create such influences of trust and confidence that courts of equity will construe a trust to arise out of their contracts, or will decree such contracts to be set aside.7

§ 211. So property obtained by one through the fraudulent practices of a third person will be held under a constructive trust for the person defrauded, though the person receiving the benefit is innocent of collusion. If such person accepts the property, he adopts the means by which it was procured; or, as Lord Ch. Justice Wilmot said, "Let the hand receiving the gift be ever so chaste, yet if it comes through a pol

1 Dent v. Bennett, 7 Sim. 539; 4 M. & C. 269; Huguenin v. Baseley, 14 Ves. 273; Gibson v. Russell, 2 N. C. C. 104; Griffiths v. Robins, 3 Madd. 191; Popham v. Brooke, 5 Russ. 8; Maul v. Reder, 51 Pa. St. 377; Lengenfitter v. Ritching, 58 Pa. St. 487.

2 Shallcross v. Oldham, 2 John. & H. 609.

3 Greenfield's Estate, 24 Pa. St. 232; Scott v. Thompson, 21 Io. 599. 4 Pratt v. Barker, 1 Sim. 1; 4 Russ. 507; Crisspell v. Dubois, 4 Barb. 393; Billing v. Southee, 10 Eng. L. & Eq. 37.

6 Hunter v. Atkins, 3 M. & K. 113; Greenfield's Estate, 14 Pa. St. 489; Cooke v. Lamotte, 15 Beav. 234; Smith v. Kay, 7 H. L. Cas. 750. James v. Holmes, 8 Jur. (N. s.). 553, 732; 4 De G., F. & J. 470. Maddeford v. Austwick, 1 Sim. 89; Farnham v. Brooks, 9 Pick. 212; Oliver v. Court, 8 Price, 127; Griffiths v. Robins, 3 Madd. 191; People v. Jansen, 7 Johns. 332; 2 Johns. 554; Dawson v. Lawes, Kay, 280; Campbell v. Moulton, 30 Vt. 667; Boultbee v. Stubbs, 18 Ves. 23; Ex parte Rushforth, 10 Ves. 409; Hayes v. Ward, 4 Johns. Ch. 123; Mayhew v. Crickett, 2 Swanst. 186; Keller v. Auble, 58 Pa. St. 412; Mandeville v. Solomon, 33 Cal. 38; Duff v. Wilson, 72 Pa. St. 442.

luted channel, the obligation of restitution will follow it."1 This principle of course cannot prevail against a purchaser in good faith for a valuable consideration, and without notice of any fraudulent influence.

§ 212. So a contract intended to defraud third persons, who are not parties to it, will be set aside, or a trust will be declared for such third persons. Thus, if property is conveyed by a debtor for the purpose of defrauding his creditors, the conveyance is void at law, and in some cases equity will construe it to create a trust for the creditors.2 And so if in an arrangement and composition of creditors with the debtor, one of them secretly obtains an extra advantage for executing the composition deed, he will be converted into a trustee by reason of the fraud, and the agreement will be null and void.3

§ 213. If a man or woman on the point of marriage privately convey away his or her property for the purpose of depriving the intended husband or wife of the legal rights and benefits arising from such marriage, equity will avoid such conveyance or compel the person taking it to hold the property in trust, or subject to the rights of the defrauded

1 Bridgman v. Green, 2 Ves. 627; Wilm. 58, 64; Luttrell v. Olmius, cited 11 Ves. 638; 14 Ves. 290; Huguenin v. Baseley, ib. 289; Graves v. Spier, 58 Barb. 349; Newton v. Porter, 5 Lansing, 417. But see Dixon v. Caldwell, 15 Ohio, 412.

2 Loomis v. Lift, 16 Barb. 543; Jones v. Reeder, 22 Ind. 111. See 1 Story's Eq. Jur. §§ 350-381.

Chesterfield v. Janssen, 2 Ves. 156; 15 Ves. 52; Mann v. Darlington, 15 Pa. St. 310; Case v. Gerrish, 15 Pick. 50; Ramsdell v. Edgarton, 8 Met. 227; Lothrop v. King, 8 Cush. 382; Partridge v. Messer, 14 Gray, 180; Kahn v. Gunherts, 9 Ind. 430; Spooner v. Whiston, 8 Moore, 580; Mallalieu v. Hodgson, 16 Ad. & El. N. R. 689-715; Turner v. Hoole, Dowl. & Ry. N. P. 27; Smith v. Cuff, 6 M. & S. 160; Horton v. Riley, 11 M. & W. 492; Alsager v. Spalding, 6 Scott, 204; Arnold, 181; 4 Bing. N. C. 407; Leicester v. Rose, 4 East, 380; Howden v. Haight, 11 Ad. & El. 1038; Fawcett v. Gee, 3 Anst. 910; Breck v. Cole, 4 Sandf. 83; Knight v. Hunt, 5 Bing. 433; Bliss v. Matteson, 45 N. Y. 24.

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3

husband or wife. But such conveyance is not void at law unless there is an actual fraud.2 Nor will such conveyance be avoided, if made for a good consideration; or for a valuable consideration; or with the knowledge or concurrence of the other party, although an infant; 5 and the party alleging fraud must prove it to the satisfaction of the court. For the same reasons a conveyance by a husband during the pendency of a divorce suit on the part of his wife, in order to avoid the payment of alimony, will be held to be fraudulent and void." If an intended husband has no knowledge of the particular property conveyed, and the negotiations for the marriage have

1 Hunt v. Mathews, 1 Vern. 408; England v. Downes, 2 Beav. 522; Ball v. Montgomery, 2 Ves. Jr. 191; Strathmore v. Bowes, 2 Bro. Ch. 345; 2 Cox, 485; 1 Ves. Jr. 22; Goddard v. Snow, 1 Russ. 485; Tucker v. Andrews, 13 Me. 124; Waller v. Armistead, 2 Leigh, 11; Logan v. Simmons, 3 Ired. Eq. 487; Terry v. Hopkins, 1 Hill, Eq. 1; Duncan's App. 43 Pa. St. 67; Wrigley v. Swainson, 3 De G. & Sm. 458; Manes v. Durant, 2 Rich. Eq. 404; McAfee v. Ferguson, 9 Mon. 495; Linker v. Smith, 4 Wash. 224; Ramsay v. Joyce, 1 McMull. Eq. 237; Williams v. Carle, 2 Stockt. Ch. 543; Lewellin v. Cobbald, 1 Sm. & Gif. 376; Cheshire v. Payne, 16 B. Mon. 618; Carleton v. Dorset, 2 Vern. 17; 2 Cox, 63; McDonnell v. Hesilridge, 16 Beav. 346; Howard v. Hooker, 2 Ch. R. 81; St. George v. Wake, 1 M. & K. 622; Taylor v. Pugh, 1 Hare, 608; Ashton v. McDougall, 5 Beav. 56; Griggs v. Staples, 2 De G. & Sm. 572; Smith v. Smith, 2 Halst. Ch. 515; Petty v. Petty, 4 B. Mon. 215; Belt v. Ferguson, 3 Grânt, 289.

2 Richards v. Lewis, 11 C. B. 1035; Logan v. Simmons, 1 Dev. & Bat. Law, 13.

8 De Manville v. Crompton, 1 V. & B. 354; England v. Downes, 2 Beav. 522; Smith v. Smith, 2 Halst. Ch. 515; Tucker v. Andrews, 13 Me. 124; Manes v. Durant, 2 Rich. Eq. 404; Terry r. Hopkins, 1 Hill, Eq. 1; Hunt v. Mathews, 1 Vern. 408; King v. Cotton, 2 P. Wms. 674; Mos. 259. 4 Blanchet v. Foster, 2 Ves. 264. But if the consideration is fraudulently stated in the deed, it will make the conveyance fraudulent. Lewellin v. Cobbald, 1 Sm. & Gif. 376.

St. George v. Wake, 1 M. & K. 610; McClure v. Miller, 1 Bail. Eq. 108; Knottman v. Peyton, 1 Speer's Eq. 46; Terry v. Hopkins, 1 Hill, Eq. 1; Cheshire v. Payne, 16 B. Mon. 618; Fletcher v. Ashley, 6 Gratt. 332; Slocombe v. Glubb, 2 Bro. Ch. 545.

St. George v. Wake, 1 M. & K. 610; England v. Downes, 2 Beav. 522. 7 Blenkinsop v. Blenkinsop, 1 De G., M. & G. 495; Krupp v. Scholl, 10 Pa. St. 193.