no reference to that particular property, its conveyance is not fraudulent, unless it was actually intended as a fraud upon him,1 and so there must be an intent to defraud the individual who is afterwards married; for if a deed is made to defraud another individual who is not married, but a marriage afterwards takes place with a person, not in contemplation at the time, there is no fraud.2 If no notice of the conveyance is shown to have been given, it will be presumed that no notice was had; and it is always a question of fact upon the whole transaction whether the conveyance is fraudulent. If, however, the property is of that character that the husband could obtain no right over it by the marriage, the conveyance of it by the wife before marriage cannot be set aside.5 In all antenuptial contracts there must be the utmost good faith between the parties, and a grossly disproportionate settlement may be evidence of a fraudulent concealment."

§ 214. There are certain purposes for which neither express law nor public policy will allow parties to contract; thus, the law will not permit contracts for the procuring of marriages, or of public offices, or of legislation, or of illicit

8

1 Thomas v. Williams, Mos. 177; De Manville v. Crompton, 1 V. & B. 354; St. George v. Wake, 1 M. & K. 622; and see Goddard v. Snow, 1 Russ. 485. 2 Strathmore v. Bowes, 1 Ves. Jr. 22; 2 Bro. Ch. 345; 2 Cox, 28; 6 Bro. P. C. 427; 1 Lead. Ca. Eq. 325; England v. Downes, 2 Beav. 522; Cheshire v. Payne, 16 B. Mon. 618; Wilson v. Daniel, 13 B. Mon. 351.

3 Cole v. O'Neill, 3 Md. 174; Wrigley v. Swainson, 3 De G. & Sm. 458. 4 Ibid.

5 Ibid. Whether the deed on record is notice or not, is a question. Cole v. O'Neill, 3 Md. 174.

Kline's Est. 64 Pa. St. 122.

Drury v. Hook, 1 Vern. 412; Cole v. Gibson, 1 Ves. 507; Debenham v. Ox, ib. 277, Smith v. Aykwell, 3 Atk. 566; Smith v. Bruning, 2 Vern. 392; Williamson v. Gihon, 2 Sch. & L. 357 Roberts v. Roberts,

3 P. Wms. 76.

8 Hartwell v. Hartwell, 4 Ves. 811; Morris v. McCulloch, Amb. 432; 2 Ed. 190; Writhingham v. Burgoyne, 2 Anst. 900; Harrington v. Duchattel, 1 Bro. Ch. 124.

Robinson v. Cox, 9 Mod. 263; Walker v. Perkins, 3 Burr. 1568; 1

cohabitation. If, therefore, such contracts are entered into, equity will enjoin their performance." And the party creating the interest, although in pari delicto, may apply for an injunction. In such cases, the person applying must return any benefit that he may have received. Such contracts are equally void at law, and if the parties are in pari delicto, the law will leave them where it finds them. If one party has advanced money upon an immoral or illegal contract, the law will give him no aid to recover it back. But equity will sometimes fasten a trust upon the conscience of the party who has received money or property under such contracts, and compel him to repay or reconvey it, especially if the illegal purpose fails.5

§ 215. If at a sale of an estate of a debtor upon execution, any one announces, for the purpose of preventing competition, that he is bidding or purchasing for the debtor; or if, upon the sale of the property of a deceased person, a bidder announces that he is purchasing for the benefit of children or

Bla. 517; Rex v. Inhabitants of Northwingfield, 1 B. & Ad. 912; Winebrinner v. Weiseger, 3 Monr. 35; Travinger v. McBurney, 5 Cow. 253; Cusack v. White, 3 Const. Ct. R. 284, Fuller v. Dame, 18 Pick. 472; Pingry v. Washburn, 1 Aiken, 264; Grolick v. Ward, 5 Halst. 87; Wood v. McCann, 6 Dana, 366; Clippinger v. Hipbaugh, 3 W. & S. 315; Harris v. Roop, 10 Barb. 489; Sedgwick v. Stanton, 4 Kern. 289; Frost v. Belmont, 6 Allen, 152.

1 Marshall v. Baltimore & Ohio Railw. 16 How. 153.

2 Robinson v. Gee, 1 Ves. 251; Gray v. Mathias, 5 Ves. 286; Franco v. Bolton, 3 Ves. 370.

3 St. John v. St. John, 11 Ves. 535; Reynell v. Sprye, 1 De G., M. & G. 660.

4 Smith v. Bruning, 2 Vern. 302; Morris v. McCulloch, Amb. 432; Ownes v. Ownes, 8 C. E. Green, 60.

5 Symes v. Hughes, L. R. 9 Eq. 475.

• Kinard v. Hiers, 2 Rich. Eq. 423; Lloyd v. Currin, 3 Humph. 462; Seichrist's App. 66 Pa. St. 237; Miller v. Antle, 2 Bush, 407; Brannin v. Brannin, 18 N. J. Ch. 282; Crutcher v. Hord, 4 Bush, 360; Roach v. Hudson, 8 Bush, 410; Brown v. Lynch, 1 Paige, 147; Tankard v. Tankard, 84 N. C. 286.

heirs, or if at a mortgagee's sale a person announces that he is purchasing for the mortgagor, and thus prevents competition, the purchaser will be held to be a trustee for the benefit of the parties interested in the property. So if any one professing to act for another purchases for himself, he will be held as a trustee.2 But in such cases there must be some proof of fraud and deceit practised by the purchaser; the mere breach of a parol agreement will not create a constructive trust in such cases; and if the conduct of the purchaser is not fraudulent and produces no injury, a trust is not raised. If the parties for whom the purchaser pretends to buy have no interest in the property, they cannot establish a trust.5

3

§ 216. Again, if a testator make a devise, or a grantor a conveyance, upon a secret trust in fraud of the law, or for a purpose forbidden by law, or contrary to public policy, those interested may bring a bill alleging the secret trust, and the fraud upon the law, and the persons to whom the devise or conveyance was made must answer, notwithstanding the statute of frauds. If such fraudulent trust appear by the

1 Brown v. Dysinger, 1 Rawle, 408; Kellum v. Smith, 9 Casey, 158; Sheriff v. Neal, 6 Watts, 534; Sharp v. Long, 4 Casey, 443; Morey v. Herrick, 6 Harris, 123; Williard v. Williard, 6 P. F. Smith, 119; Robertson v. Robertson, 9 Watts, 32; Plumer v. Reed, 2 Wright, 46; Beegle v. Wentz, 73 Pa. St. 369; Kisler v. Kisler, 2 Watts, 323; McCaskey v. Graff, 11 Harris, 321; Abbey v. Dewey, 1 Casey, 114; McRarey v. Huff, 32 Ga. 681; Ryan v. Dox, 34 N. Y. 307; Mackay v. Martin, 26 Tex. 225; Dennis v. McCagg, 32 Ill. 429; Cook v. Cook, 69 Pa. St. 443; Jenckes v. Cook, 9 R. I. 520. So, as to a party holding bona fide, a claim upon the Wolford v. Hemington, 86 Pa. St. 39.

property, whether valid or not.

2 Rothwell v. Dawes, 2 Black (U. S.), 613; O'Neil v. Hamilton, 44 Pa. St. 18; Coe v. Bradley, 49 Me. 388; Baylis v. Baxter, 22 Col. 175; Adams v. Bradley, 12 Mich. 346; Drennen v. Walker, 21 Ark. 539.

8 Minott v. Mitchell, 30 Ind. 288.

Taylor v. Boardman, 24 Mich. 287.

5 Rogers v. Simmons, 58 Ill. 76; Walter v. Klock, 55 Ill. 82.

• Muckleston v. Brown, 6 Ves. 52; Podmore v. Gunning, 7 Sim. 644;

answer,1 or by any clear and explicit proof in opposition to the answer,2 a trust will be declared and enforced in favor of those interested in the estate, or in the event of the failure of the illegal trust. In all cases of actual fraud parol evidence is admissible, otherwise a fraud put in writing would always escape.3

§ 217. Another large class of constructive trusts arises from purchases or conveyances from trustees, or other persons holding a fiduciary relation to property. It is a universal rule, that if a man purchases property of a trustee, with notice of the trust, he shall be charged with the same trust, in respect to the property, as the trustee from whom he purchased. And even if he pays a valuable consideration, with

Chamberlain v. Agar, 2 V. & B. 259; Strickland v. Aldridge, 9 Ves. 513; Edwards v. Pike, 1 Ed. 267; Walgrave v. Tebbs, 2 K. & J. 313; Robinson v. King, 6 Ga. 550.

1 Cottingham v. Fletcher, 2 Atk. 155; Bozon v. Statham, 1 Ed. 508; Bishop v. Talbot, cited 6 Ves. 60; Adlington v. Cann, 3 Atk. 141; Paine v. Hall, 18 Ves. 473; 1 Ed. 515, n. (a).

2 How v. Camp, Walk. Ch. 427; Strickland v. Aldridge, 9 Ves. 520; Pring v. Pring, 2 Vern. 99.

3 Ibid.

4 Le Neve v. Le Neve, Amb. 436; 3 Atk. 646; 1 Ves. 64; 2 Lead. Ca. Eq. 23 and notes; Merry v. Abney, 1 Ch. Ca. 38; Potter v. Sanders, 6 Hare, 1; Kennedy v. Daly, 1 Sch. & L. 355; Crofton v. Ormsby, 2 Sch. & L. 583; Ferras v. Cherry, 2 Vern. 384; Daniels v. Davidson, 16 Ves. 249; Brooke v. Bulkeley, 2 Ves. 498; Jennings v. Moore, 2 Vern. 609; 2 Bro. P. C. 278; Birch v. Ellames, 2 Anst. 427; Mackreth v. Symmons, 19 Ves. 349; Grant v. Mills, 2 V. & B. 306; Saunders v. Dehew, 2 Vern. 271; Mansell v. Mansell, 2 P. Wms. 681; Wigg v. Wigg, 1 Atk. 382; Dunbar v. Tredennick, 2 B. & B. 319; Pawlett v. Att'y-Gen. Hardr. 465; Burgess v. Wheate, 1 Ed. 195; Adair v. Shaw, 1 Sch. & L. 262; Mead v. Orrery, 3 Atk. 238; Bovey v. Smith, 1 Vern. 149; Phayre v. Peree, 3 Dow, 129; Wormley v. Wormley, 8 Wheat. 421; Oliver v. Piatt, 3 How. 333; Caldwell v. Carrington, 9 Peters, 86; Wright v. Dame, 22 Pick. 55; Clarke v. Hackerthorn, 3 Yeates, 269; Peebles v. Reading, 8 S. & R. 495; Reed v. Dickey, 2 Watts, 459; Hood v. Fahnestock, 1 Barr, 470; Wilkins v. Anderson, 1 Jones, 399; Denn v. McKnight, 6 Halst. 385; Murray v. Ballou, 1 Johns.

notice of the equitable rights of a third person, he shall hold the property subject to the equitable interests of such person.1 Of course, a mere volunteer, or person who takes the property without paying a valuable consideration, will hold it charged with all the trusts to which it is subject, whether he have notice or not; for in such case no wrong or pecuniary loss can fall upon him, in compelling him to execute the trust to which the property that came to him without consideration was subject. Such purchases from trustees, whether for value or not, are fraudulent, and equity will follow the property and fasten the original trust upon it for the security of the cestui que trust, or other person holding an equitable interest. The rule applies not only to express trusts, or those expressly declared by written instruments, but it applies to constructve trusts, or those trusts that arise from fraud. Thus, if a party procures a conveyance of property from another by fraud, he shall be held to be a constructive trustee; and if he sells such property to a third person who has full knowledge or notice of the fraud, such third person will be equally held as a trustee.3 After a purchase is once made from a trustee with notice of the trust, the person taking the title cannot bar the interest of the cestui que trust by buying in other interests, or by levying a fine or suffering a recovery, obtaining a judgment, or by procuring the assign

Ch. 566; Bailey v. Wilson, 1 Dev. & Bat. 182; Massey v. McIlwaine, 2 Hill, Eq. 426; Benzien v. Lenoir, 1 Car. L. R. 504; Pugh v. Bell, 1 J. J. Marsh. 403; Liggett v. Wall, 2 A. K. Marsh. 149; Truesdell v. Calloway, 6 Miss. 605; Suydam v. Martin, Wright, 384; Winged v. Lefebury, 1 Eq. Ca. Abr. 32; Taylor v. Stibbert, 2 Ves. Jr. 437; Case v. James, 29 Beav. 512; Cary v. Eyre, 1 De G., J. & S. 149; Jones v. Shaddock, 41 Ala. 362; Ryan v. Doyle, 31 Io. 53; Smith v. Walter, 49 Mo. 250; James v. Cowing, 17 Hun (N. Y.), 256.

1 Ibid.

2 Ibid.; Lyford v. Thurston, 16 N. H. 399.

Pye v. George, 1 P. Wms. 128; Saunders v. Dehew, 2 Vern. 271; Mansell v. Mansell, 2 P. Wms. 681; Smith v. Bowen, 35 N. Y. 83; Lyons v. Bodenhamer, 7 Kans. 455; Sadler's Appeal, 87 Pa. St. 154.