This section is from the book "A Treatise On The Construction Of The Statute Of Frauds", by Causten Browne. Also available from Amazon: A treatise on the construction of the Statute of frauds.
§ 94 a. The breach of an agreement to make a written declaration of the proposed trust is not enough to create a trust ex maleficio4 although this, in connection with the other circumstances in the case, may be sufficient to give equitable jurisdiction.1
Pa. St. 432. But see Jenkins v. Eldredge, 3 Story (C. C.) 181; post, § 111, note.
1 Harris v. Horwell, Gilb. Eq. 11; Chamberlaine v. Chamberlaine, Freem. Ch. 34; Devenish v. Baines, Prec. Ch. 3; Oldham v. Litchford, 2 Vera. 506; Thynn p. Thynn, 1 Vern. 296; Hoge v. Hoge, 1 Watts (Pa.) 163. But see Barrow v. Greenough, 3 Ves. Jr. 152; Hargrave v. King, 5 Ired. (N. C.) Eq. 430; Cloninger v. Summit, 2 Jones (N. C) Eq. 513; Podmore v. Gunning, 7 Sim. 644; Henschel v. Mamero, 120 111. 620; Troll v. Carter, 15 W. Va. 567.
2 Whitton v. Russell, 1 Atk. 448; Miller v. Pearce, 6 Watts & S. (Pa.) 97; Lautry v. Lantry, 51 111. 458; Haigh v. Kaye, L. R. 7 Ch. 469; Booth v. Turle, L. R. 16 Eq. 182; McClain v. McClain, 57 Iowa, 167; Fishbeck v. Gross, 112 111. 208.
3 Hoge v. Hoge, 1 Watts (Pa.) 214. A cestui que trust, in such a case of trust, ex maleficio, defended successfully, upon this ground, an action of trespass brought by the trustee against him, in Carpenter v. Ottley, 2 Lans. (N. Y.) 451.
4 Glass v. Hulbert, 102 Mass. 38, per Wells, J.; Marshman v. Conklin, 21 N. J. Eq. 546. Compare Hayes v. Burkam, 51 Ind. 130, on the subject of a promise to give a written guaranty. But see Wolford v. Her-rington, 74 Pa. St. 311; qualified subsequently, 86 Pa. St. 39, on a new trial.
§ 95. Upon similar principles, if one falsely represent himself to be purchasing for another, and by that means prevent competition in bidding, or otherwise get the land at a cheaper rate, he shall be held a trustee for him in whose behalf he pretended to act, or, at least, the purchase be set aside on account of the fraud.2 But in no case will the grantee be deemed a trustee, if he used no fraud or deceit in getting his title, although he verbally promised to hold the land for another.3 If, on the other hand, the grant was made on the faith of a promise, and induced thereby, the breach of the promise is fraud, and as such has been made ground of equitable relief,4 and this doctrine has been extended to cover those cases where the promise which induced the conveyance was to convey to a third person, who has been held to be thereby enabled to compel a conveyance to himself from the grantee.5
§ 96. Finally, the principles above laid down apply in general to all conveyances to persons standing in fiduciary relations to others, and who avail themselves of their position to get the legal title to themselves. In all such cases, embracing those of agents, guardians, or others who are bound to act for the use of their principals or wards or other beneficiaries, the parties purchasing for their own use are made trustees for those in whose name they should have purchased.1 It has been stated to be the law that, where one man employs another by parol as agent to buy an estate for him, and the latter buys it in his own name, with his own money, and denies the agency, the one who employed him cannot, by a suit in equity, compel a conveyance of the estate; for that, it is said, would be decidedly in the teeth of the Statute of Frauds.2 The case put is not that of an agreement that one party shall take title in his own name, and pay his own money, and afterward convey to the other, for that is evidently a contract to transfer an interest in land which one of them is afterwards to obtain.3 But the agreement between principal and agent is quite different. A man wishes to buy the land, and asks another to represent him at the sale. The latter orally agrees to do this, and this agreement is not a contract to convey land, nor a declaration of trust. When the agent, thus appointed, takes a contract of sale or lease from the owner in his own name, two English cases have held that the principal could compel specific performance in his own favor.1 In one of these cases, the agency was admitted by a demurrer; in the other, it was put in issue; but the decision in both cases was that the contract of the agent was the contract of the principal, and enforceable by him. And in the same way it would seem that a conveyance of the legal title to the agent in pursuance of the contract would be a conveyance of the equitable title to the principal, by a legal consequence which the agent cannot prevent or deny. It is true in a sense that the relation depends upon the oral agreement, but after the agreement is made and the relation of agent and principal established, a transfer to one is in equity a transfer to the other.2
1 Glass v. Hulbert, 102 Mass. 38. See Jenkins v. Eldredge, 3 Story (C. C.) 181; Dean v. Dean, 6 Conn. 285; Bartlett v. Pickersgill, 1 Eden, 515; 1 Cox 15; 4 East, 577, note; Von Trotha v. Bamberger, 15 Col. 1.
2 McCulloch v. Cowher, 5 Watts & S. (Pa.) 427; Kisler v. Kisler, 2 Watts (Pa.) 323; Schmidt v. Gatewood, 2 Rich. (S. C.) Eq. 162; Boyn-ton v. Housler, 73 Pa. St. 453. Contra, Rogers v. Simmons, 55 111. 76.
3 Leman v. Whitley, 4 Russ. 423; Whiting v. Gould, 2 Wisc. 552; Barnet v. Dougherty, 32 Pa. St. 371; Chambliss v. Smith, 30 Ala. 366; Campbell v. Campbell, 2 Jones (N. C.) Eq. 364; Pattison v. Horn, 1 Grant (Pa.) 301; Hogg v. Wilkins, 1 Grant (Pa.) 67; Walker v. Hill, 21 N. J. Ch. 191; Johns v. Norris, 22 N. J. Ch. 102; Loomis v. Loomis, 60 Barb. (N. Y.) 22; Kistler's Appeal, 73 Pa. St. 393; Payne v. Patterson, 77 Pa. St. 134; Kimball v. Smith, 117 Pa. St. 183; Salsbury v. Black, 119 Pa. St. 200.
4 Haigh v. Kaye, L. R. 7 Ch. 469 , Brison v. Brison, 75 Cal. 525. See post, §§ 439, et seq.
6 Carr v. Carr, 52 N. Y. 251; Cipperley v. Cipperley, 4 Thomp. & C. (N. Y.) 342; Faust v. Haas, 73 Pa. St. 295; Boruff v. Hudson, 37 N. E. Rep. (Tnd.) 786.
1 Lees v. Nuttall, 1 Russ. & M. 53; Carter v. Palmer, 11 Bligh, N. R. 397; Dale v. Hamilton, 5 Hare, 369; Sweet v. Jacocks, 6 Paige (N. Y.) 355; Jenkins v. Eldredge, 3 Story, 181; Jackson v. Stembergh, 1 Johns. (N. Y.) Cas. 153; Perry v. McHenry, 13 111. 227; Traphagen v. Burt, 67 N. Y. 30; Brannin p. Brannin, 18 N. J. Eq. 212. See Fischli v. Du-maresly, 3 A. K. Marsh. (Ky.) 23; Wright ». Gay, 101 11l. 233; Reese v. Wallace, 113 111. 589; Vallette v. Tedens, 122 111. 607; Gurhn v. Richardson, 128 111 178; Roby v. Colehour, 135 111. 300; Wood v. Rabe, 96 N. Y. 414; McMurry v. Mobley, 39 Ark. 309; Rose v. Hayden, 35 Kansas, 106; Larmon v. Knight, 140 111. 232. See Hamilton v. Buchanan, 112 N. C. 463. But see Bland v. Talley, 50 Ark. 71.