money has not been paid, it will be a charge on the father's assets as an ordinary debt (ƒ); and the conveyance, where the contract in favour of the wife or child remains to be executed, will be made to the wife or child, though the real purchaser's executor pays the purchase-money, for it is not the case of a volunteer (viz., the wife or child), calling for specific performance, but the vendor on his side has a right to enforce the contract and compel payment of the price, and then the Court settles the conveyance in the form in which, according to the contract, it was meant to be taken, viz., in favour of the wife or child (g). *16. Advancement applies to personalty. Of [*179] course, the doctrine of advancement applies to personal as well as real estate; as where a father purchases stock in the name of his son (a), or daughter (b), [or transfers stock into the joint names of a married daughter and her husband (c).] 17. Solicitor. In a recent case, where money was lent out in the name of a person who was both son and solicitor of the owner of the sum lent, it was held that the particular relation of solicitor prevented the application of the general rule (d). (f) Redington v. Redington, 3 Ridg. 106, see 200; and see Nicholson v. Mulligan, 3 I. R. Eq. 308. (g) Drew v. Martin, 2 H. & M. 130; and see Nicholson v. Mulligan, 3 I. R. Eq. 308. (a) Dummer v. Pitcher, 2 M. & K. 263; Sidmouth v. Sidmouth, 2 Beav. 447; Hepworth v. Hepworth, 11 L. R. Eq. 10; Fox v. Fox, 15 Ir. Ch. 245 Rep. 89; and see Bone v. Pollard, 24 Beav. 283; Devoy v. Devoy, 3 Sm. & G. 403. (b) O'Brien v. Sheil, 7 I. R. Eq. 255. (d) Garrett v. Wilkinson, 2 De G. & Sm. 244. [*180] * CHAPTER X. OF CONSTRUCTIVE TRUSTS. 1. General doctrine. - A constructive trust (a) is raised by a court of equity, wherever a person, clothed with a fiduciary character, gains some personal advantage by availing himself of his situation as trustee;1 for as it is impossible that a trustee should be allowed to make a profit by his office, it follows that so soon as the advantage in question is shown to have been acquired through the medium of a trust, the trustee, however good a legal title he may have, will be decreed in equity to hold for the benefit of his cestui que trust. 2. Renewal of leases. A common instance of a constructive trust occurs in the renewal of leases; the rule being, that if a trustee (b), or executor (c), or even an executor de (a) As to the meaning of the term "constructive trust," see page 108, suprà. (b) Griffin v. Griffin, 1 Sch. & Lef. 354, per Lord Redesdale; Pickering v. Vowles, 1 B. C. C. 198, per Lord Thurlow; Pierson v. Shore, 1 Atk. 480, per Lord Hardwicke; Nesbitt v. Tredennick, 1 B. & B. 46, per Lord Manners; Turner v. Hill, 11 Sim. 13, (c) Walley v. Walley, 1 Vern. 1 CONSTRUCTIVE TRUSTS.- Definition. · "Constructive trusts include all those instances in which a trust is raised by the doctrine of equity for the purpose of working out justice in the most efficient manner, where there is no intention of the parties to create such a relation, and in most cases contrary to the intention of the one holding the legal title, and where there is no express or implied, written or verbal, declaration of the trust"; 2 Pom. Eq. Jur. § 1044; Perry on Trusts, § 166; Pillow v. Brown, 26 Ark. 240; Hollingshead v. Simms, 51 Cal. 158; McLane v. Johnson, 43 Vt. 48; Thompson v. Thompson, 16 Wis. 91; Collins v. Collins, 6 Lans. 368; Griffith v. Godey, 113 U.S. 89. Actual fraud. No complete and satisfactory definition can be given, but it includes all acts, omissions, and concealments constituting a breach of duty, trust, or confidence, resulting in an unfair advantage to one and an injury to another; 1 Story Eq. Jur. § 187; Gale v. Gale, 19 Barb. 251. Though at law son tort (d), renew a lease in his own name, he will be deemed in equity to be trustee for those interested in the original term. Ch. Ca. 207; and see Mulvany v. Dillon, 1 B. & B. 409; Fosbrooke v. Balguy, 1 M. & K. 226; Owen v. Williams, Amb. 734; Nesbitt v. Tredennick, 1 B. & B. 46, per Lord Man ners; [Kelly v. Kelly, 8 I. R. Eq. 403.] (d) Mulvany v. Dillon, 1 B. & B. 409. there may be an absence of liability, even with the presence of fraud, as in the case of minors, yet equity will relieve, for rules made to protect certain classes may not serve as a shield for their frauds; Hall v. Timmons, 2 Rich. Eq. 120; Davis v. Tingle, 8 B. Mon. 539; the simplest case of fraud is that arising from circumstances and facts of imposition; Beegle v. Wentz, 55 Pa. St. 369; where a transfer of a legal title has been procured by fraud, equity will compel a re-conveyance; Smith v. Richards, 13 Pet. 26; Tyler v. Black, 13 How. 231; Dowd v. Tucker, 41 Conn. 198; Williams v. Vreeland, 29 N. J. Eq. 417; Beach v. Dyer, 93 Ill. 295; Walker v. Dunlop, 5 Hayw. 271; Lewis v. McLemore, 10 Yerg. 206; Boyce v. Grundy, 3 Pet. 210; Prescott v. Wright, 4 Gray, 461; Laidlaw v. Organ, 2 Wheat. 195; it is immaterial whether a party makes a false assertion knowingly or ignorantly; Hazard v. Irwin, 18 Pick. 85; Hammatt v. Emerson, 27 Me. 308; Doggett v. Emerson, 3 Story, 733; Pratt v. Philbrook, 33 Me. 17; equity will make a trustee of a purchaser at an auction sale who has prevented competition; Pearson v. East, 36 Ind. 27 ; Gilmore v. Johnson, 29 Ga. 67; Soggins v. Heard, 31 Miss. 426; Wolford v. Herrington, 74 Pa. St. 311; Ferguson v. Williamson, 20 Ark. 272; the principal is liable if he ratify the fraudulent act of his agent; Kibbe v. Ins. Co. 11 Gray, 163; Fitzsimmons v. Joslyn, 21 Vt. 129; Elwell v. Chamberlin, 31 N. Y. 619; Stone v. Denny, 4 Met. 161; Oliver v. Piatt, 3 How. 333; Hess v. Dean, 66 Tex. 663; the deception must be in matters of fact; Rush v. Vought, 55 Pa. St. 437; Tyler v. Black, 13 How. 230; Best v. Stow, 2 Sandf. 298; Manning v. Albee, 11 Allen, 522; Medbury v. Watson, 6 Met. 259; and not of opinion merely; Hemmer v. Cooper, 8 Allen, 334; Speiglemyer v. Crawford, 6 Paige, 254; Hough v. Richardson, 3 Story, 696; and of some material fact; Clark v. Everhart, 63 Pa. St. 347; Stebbins v. Eddy, 4 Mason, 414; Winston v. Gwathmey, 8 B. Mon. 19; peculiarly within the knowledge of one party; Tindall v. Harkinson, 19 Ga. 448; Juzan v. Toulmin, 9 Ala. 662; Hobbs v. Parker, 31 Me. 143. Concealment. If a person, standing in a fiduciary relation to another, keeps valuable information from him, he may become a constructive trustee; Etting v. Bank of U. S. 11 Wheat. 59; Miller v. Welles, 23 Conn. 33; Mathews v. Bliss, 22 Pick. 48; Wellford v. Chancellor, 5 Gratt. 39; this may be true if no such relation exists; Evans v. Keeland, 9 Ala. 42; Bank v. Cooper, 36 Me. 195; Foote v. Foote, 58 Barb. 258; Hanson v. Edgerly, 29 N. H. 343; Bank v. Baxter, 31 Vt. 101; Babcock v. Case, 61 Pa. St. 427; Jenkins v. Eldredge, 3 Story, 181; Church v. Ruland, 64 Pa. St. 432. For fraud in case of will, see Murray v. Murphy, 39 Miss. 214; Waters v. Stickney, 12 Allen, 1; Williams v. Fitch, 18 N. Y. 546; Tarver v. Tarver, 9 Pet. 180; Fouvergne v. New Orleans, 18 How. 470; Morningstar v. Selby, 15 Ohio, 345; Gaines v. Hennen, 24 How. 553; Allison v. Allison, 7 Dana, 90. If a conveyance is made through ignorance, accident, or mistake, equity Rumford Market case. The leading authority upon this subject is Sandford v. Keech, commonly called the Rumford Market Case (e). A lessee of the profits of a market had (e) Sel. Ch. Ca. 61. will relieve, though there be no fraud; Beard v. Campbell, 2 A. K. Marsh. 125; Freeman v. Curtis, 51 Me. 140; Storrs v. Barker, 6 Johns. Ch. 169; Magniac v. Thomson, 2 Wall. Jr. 209; Mellish v. Robertson, 25 Vt. 608; Loss v. Obry, 7 C. E. Green, 52; Sawyer v. Hovey, 3 Allen, 331; Andrews v. Ins. Co. 3 Mason, 10; Bloodgood v. Sears, 64 Barb. 76. Inadequacy of consideration may be a ground for relief, and that too without showing fraud; Erwin v. Parham, 12 How. 197; Osgood v. Franklin, 2 Johns. Ch. 1; Powers v. Hale, 5 Foster, 145; Mann v. Betterly, 21 Vt. 326; Coster v. Griswold, 4 Edw. 364; Barnett v. Spratt, 4 Ired. Eq. 171; Horsey v. Hough, 38 Md. 130; Booker v. Anderson, 35 Ill. 66; Gasque v. Small, 2 Strob. Eq. 72; Esham v. Lamar, 10 B. Mon. 43; especially if it be a contract with heirs; Jenkins v. Pye, 12 Pet. 258; Poor v. Hazleton, 15 N. H. 564; Nimmo v. Davis, 7 Tex. 26; Trull v. Eastman, 3 Met. 121; Davidson v. Little, 22 Pa. St. 252. CONSTRUCTIVE FRAUD. - Generally. This arises when a fiduciary relation exists, on slight suspicion or presumption; Atkins v. Withers, 94 N. C. 581; Post v. Martin, 91 N. Y. 539; see Huguenin v. Baseley, 2 W. & J. Lead. Cas. in Eq. 1156 and notes. If the beneficiary had competent independent advice, the transaction may stand; Ashton v. Thompson, 32 Minn. 25; fiduciary relation has an effect in case of values; Cheney v. Gleason, 125 Mass. 166; where party could not read deed, and thought it was different; Rider v. Kelso, 53 Ia. 367. Attorney and client. - Transactions between them are voidable; Post v. Mason, 91 N. Y. 539; Yeamans v. James, 27 Kan. 195; attorney may purchase from his client; Stout v. Smith, 98 N. Y. 25; Alwood v. Mansfield, 59 Ill. 496; and if client suffers no damage the courts will not interfere; Kisling v. Shaw, 33 Cal. 425; but attorney may not purchase at judicial sales; Gibbons v. Hoag, 95 Ill. 45; Ryan v. Ashton, 42 Ia. 365; Byers v. Surget, 19 How. 303; attorney may receive a gratuity; Whipple v. Barton, 63 N. H. 613; Shipman v. Furniss, 69 Ala. 555; the burden of showing the fairness of the transaction is on the attorney; Evans v. Ellis, 5 Denio, 640; Brock v. Barnes, 40 Barb. 521; Greenfield's Est. 2 Harris, 489; Howell v. Ransom, 11 Paige, 538; attorney deposited collection in own name, but not in his private account, no trust created; Naltner v. Dolan, 108 Ind. 500. Principal and agent. - Burden of proving fairness of transaction between them is on the agent; Farmer v. Farmer, 39 N. J. Eq. 211; see Porter v. Woodruff, 36 N. J. Eq. 174; Cheney v. Gleason, 125 Mass. 166; Hunter v. Hunter, 50 Mo. 445; agent must act in utmost good faith; Murray v. Beard, 102 N. Y. 505; cannot charge for his services if interested; Durgin v. Somers, 117 Mass. 55; Smith v. Townsend, 109 Mass. 500; Rice v. Wood, 113 Mass 133; Stewart v. Duffy, 16 Ill. 147; unless there is a special agreement; Stewart v. Mather, 32 Wis. 344; agent may become a trustee; Cowperthwaite v. Bank, 102 Pa. St. 397; fiduciary relation alone is not enough to compel an agent to transfer to his principal; Collins v. Sullivan, 135 Mass. 461; Parsons v. Phelan, 134 Mass. 109; but otherwise if he use his knowledge against his employer; Ringo v. Binns, 10 Pet. 279; Peabody v. Norfolk, 98 Mass. 452; see also devised the lease to a trustee for an infant, and the trustee applied for a renewal on behalf of the infant, which was refused, on the ground that there could be no distress of the profits of a market, but the remedy must rest singly in covenant, of Geddes' App. 80 Pa. St. 442; Pomeroy v. Benton, 77 Mo. 64; Sweet v. Morrison, 103 N. Y. 235. Trustee and cestui que trust.— A transaction between them is voidable; Gilman v. Kelly, 77 Ill. 426; Kitchen v. St. Louis R. R. Co. 69 Mo. 224; it must be evidently fair; Jones v. Lloyd, 117 Ill. 597; Baker v. Springfield Co. 86 Mo. 75; trustee may purchase; Spencer's App. 80 Pa. St. 317; trustee may make a loan; Wingate v. Harrison, 59 Ind. 520; Bent v. Priest, 86 Mo. 475; cannot speculate with the estate; Landis v. Saxton, 89 Mo. 375; see Parker v. Nickerson, 112 Mass. 195; McNeil v. Gates, 41 Ark. 264; disability may be absolute; Creveling v. Fritts, 34 N. J. Eq. 134; Freeman v. Harwood, 49 Me. 195; not necessary to set transactions aside, because of the fiduciary relation; Brown v. Cowell, 116 Mass. 461; Perry on Trusts, § 195; cestui que trust may treat sale as a nullity; Brothers v. Brothers, 7 Ired. Eq. 150; burden of proving fairness is on the trustee; Miles v. Wheeler, 43 Ill. 124; objection to sale must be made within a reasonable time, if at all; Mason v. Martin, 4 Md. 124; Marsh v. Whitmore, 21 Wall. 178; the same principles apply in case of trustee purchasing through another; Gaston v. Dashiell, 55 Tex. 508; but if trustee did not intend to purchase, when sold to another, his purchase will stand; Stephen v. Beall, 22 Wall. 329; see Lehmann v. Rothbarth, 111 Ill. 185; directors and officers of a corporation cannot receive benefits not shared by others; Union Pacific R. R. Co. v. Credit Mobilier, 135 Mass. 367; Lyman v. Bonney, 101 Mass. 562; Twin Lick Co. v. Marbury, 91 U. S. 587; Thomas v. Brownville R. R. Co. 109 U. S. 522; trustee cannot purchase at a judicial sale; Roberts v. Moseley, 64 Mo. 507; Baker v. Springfield R. R. Co. 80 Mo. 75; if a trustee get a new lease that is merely a graft on the old one and enures to the trust estate; Gower ». Andrew, 59 Cal. 119; Davis v. Hamlin, 108 III. 39. Guardian and ward. - Transactions between them are voidable; Taylor v. Brown, 55 Mich. 482; Meek v. Perry, 36 Miss. 190; Hunter v. Lawrence, 11 Gratt. 111; guardian must account for all profits; Kepler v. Davis, 80 Pa. St. 153; even after the relation is terminated, any dealings between them will be carefully scrutinized; Harris v. Carstarphen, 69 N. C. 416; Smith v. Davis, 49 Md. 470; Manson v. Felton, 13 Pick. 206. Executors and administrators. - Same principles apply as in cases already considered; Humphreys v. Burleson, 72 Ala. 1; Newhall v. Jones, 117 Mass. 252; cannot buy through another; Morgan v. Wattles, 69 Ind. 260; McGaughey v. Brown, 46 Ark. 25; transactions are voidable; Ives v. Ashley, 97 Mass. 198; White v. Moss, 67 Ga. 89; Jones v. Graham, 36 Ark. 383; may purchase of another; Boehlert v. McBride, 48 Mo. 505. So mortgagee exercising power of sale is bound to act in good faith; Thompson v. Heywood, 129 Mass. 401; Burr v. Borden, 61 Ill. 389; Hood v. Adams, 124 Mass. 481. Husband and wife. — A voluntary conveyance between them may be set aside; Boyd v. de la Montagnie, 73 N. Y. 498; Walker v. Coleman, 81 Ill. 390; Haydock v. Haydock, 34 N. J. Eq. 570; Stone v. Wood, 85 Ill. 603. Parent and child. - Transaction between them must be fair; Miskey's App. 107 Pa. St. 611; Wood v. Rabe, 96 N. Y. 414; so in case of one standing in |