52. See authorities cited by Professor Costigan, 12 Mich. Law Rev. pp. 442, 443. See also 13 Columbia Law Rev. 343, 28 Yale Law Journ. 195, note 39 L. R. A. (N. S.) 906.

54. The cases are cited by Professor Costigan, 28 Harv. Law Rev. at pp. 369, 380. See also notes, 9 Mich. Law Rev. at 629, 27 Yale Law Journ. 389, 28 Id. 411,13 Columbia Law Rev. 343.

55. Sellack v. Harris, 2 Eq. Cas. Abr. 46, 5 Vin. Abr. 526; McCor-mick v. Grogan L. R. 4 H. L. 88; Williams v. Fitch, 18 N. Y. 546; McDowell v. McDowell, 141 Iowa, 286, 119 N. W. 702. And cases cited structive trust should be recognized when the property passes on death, and not when it passes by conveyance inter vivos, is not judicially explained.56

If a trustee, executor or other fiduciary uses funds which he holds as such in the purchase of land, which he has the vendor transfer to him as an individual, he is regarded as holding the land in trust for the person or persons entitled to the funds invested therein. This is not infrequently referred to by the courts as a resulting trust,57 but it is properly so termed only on the theory that his intention to hold the land for the benefit of the person equitably entitled to the funds invested therein is to be presumed,58 a somewhat violent presumption, it would seem. It has, on the other hand, been suggested that frequently, by reason of his fraudulent intent, he should be regarded as holding the land so acquired subject to a constructive trust.59 Where, however, one holding funds under an express trust invests such funds in land, which is conveyed to him in his individual capacity, he would seem to hold such land under neither a resulting trust or a constructive

28 Harv. Law Rev. at p. 581. See 27 Yale Law Journ. 389, 28 Id. 201. 56. Professor Costigan says (28 Harv. Law Rev. at p. 267) that "the reason why nearly all the courts enforce a trust in favor of C. in the devise cases, and why a majority of them do not do so in the deed cases, in the absence of fraudulent intent at the time of taking or of a special confidential relationship between grantor and grantee, is that in the will cases the death of the testator makes evident to the courts what in the deed cases the presence of the living grantor often conceals; namely, that the party to suffer by the breach of trust is the intended cestui que trust and not the one who furnishes the property, and that, since the unjust enrichment of the trustee, to prevent which a constructive trust is raised, is at the expense of the intended cestui que trust, he should be selected by the court of chancery as the cy pres constructive trust cestui que trust." And see the remarks of Professor Ames, 20 Harv. Law Rev. at p. 555. Lectures on Legal History, 431.

57. See cases cited, 15 Am. & Eng. Encye. Law 1177, and 39 Cyclopedia Law & Proc. 148.

58. See 3 Pomeroy, Eq. Jur.Sec. 1049.

59. 1 Perry, Trusts (6th Ed.) Sec. 127, note.

Sec. 108 ]

Equitable Ownership.

- (b) Not arising from fraud. "It frequently happens that courts of equity construe a trust to arise from the contracts and dealings of the parties, although a trust is not within their contemplation, and there is no fraud, actual or constructive."60 An instance of a constructive trust of this character appears in the case of a contract for the sale of land, of which specific performance will be decreed. Such a contract, it is said, transfers the beneficial interest in the land to the purchaser, the vendor holding the legal title as trustee for him.61

If a trust is created, and no trustee is named, or the trustee who is named refuses to act, the legal title will ordinarily vest in the creator of the trust or his heir or residuary devisee; and so when a trustee dies, the legal title will ordinarily pass to his heir or residuary devisee.62-63 In such cases the person in whom the legal title is will hold subject to the trust, and the same is the case, as hereafter explained,64 when a trustee makes a conveyance to one who, though without notice of the trust, is not a purchaser for value. It has been said that, in such cases, the person who acquires the title of the trustee, holds the land subject to a constructive trust,65 the theory being, presumably, that not having been named as trustee, he cannot be regarded as holding subject to an express trust. But it appears to be open to question whether what was an express trust can properly be regarded, by reason

60. 1 Perry, Trusts, Sec. 231.

61. Post Sec. 125.

Professor Costigan is of opinion that the trust is in such case an express trust. See 27 Harv. Law Rev. p. 456, note. But it is somewhat difficult to regard a trust thus recognized by equity, without any words indicative of intention to create a trust, as an express trust.

62-63. Post Sec. 115, note 1.

64. Post Sec. 114.

65. 1 Perry, Trusts Sec.Sec. 240, 241 of the transfer of the legal title, as converted into a constructive trust. The person acquiring such title may well be referred to as a constructive trustee, he not having been named or appointed as trustee. But, it is submitted, he is constructive trustee under an express rather than a constructive trust.

Occasionally, without any fraudulent intent, one undertakes to act as trustee of certain property although having no legal right so to do. One so acting is referred to as a trustee de son tort, and equity will regard him as a trustee in so far as may be necessary to protect the owner of the property from loss by his acts.66