This section is from the book "Real Property, An Introductory Explanation Of The Law Relating To Land", by Alfred F Topham. Also available from Amazon: The New Law Of Property.
Express Trusts are trusts expressly declared by the grantor, as in the cases mentioned above; but there are other trusts and uses which are not expressed, namely: -
(1) Resulting use.
This occurs, as we have seen, if land is granted by X "to A," and there is no use expressed, and A pays nothing. The use then results to X; i.e. A holds to the use of X.
Since the Statute of Uses a resulting use carries the legal estate back to the grantor.
(h) Trustee Act, 1893, s. 10.
(2) Resulting Trust.
This is similar to a resulting use before the Statute of Uses. It occurs where the equitable estate results back to the grantor.
Thus if X grants land "unto and to the use of A in trust" for some purposes which fail, there is a resulting trust in favour of X. That is, A holds the legal estate in trust for X or his-heirs,
Achroyd v. Smithson (1780), 1 B. C. C. 503; 1 Wh. & T. 68.
A testator gave his real and personal estate to trustees, and directed that it should be sold, and after payment of his debts and certain legacies, the residue should be divided among certain persons, two of whom died before the testator.
Held, there was a resulting trust of the shares of these two persons for the testator, and, since he was dead, the trustees must hold the shares on trust, as to so much as was realty, for the heir of the testator, and as to so much as was personalty for his next of kin.
(3) Implied Trust. - This occurs where no trust is expressed, but a trust is implied by reason of the position of the parties.
E.g. X agrees to sell land to A. Until the land is conveyed, X becomes for some purposes a trustee of the land for A.
(4) Constructive Trust.
This is really another form of implied trust and occurs where a trustee obtains any benefit for himself out of the trust: for it is a firm rule of equity that a trustee cannot make any benefit for himself (i) out of a trust - and any benefit so obtained must be held in trust for the cestui que trust.
(i) Thus a solicitor who is a trustee cannot charge fees even for professional work unless expressly authorized to do so by the person who creates the trust.
Keeh v. Sandford: The Romford Market Case (1726), 2 Wh. & T. 693.
S held a lease, for a term of years, of Romford Market, in trust for an infant. S applied to the landlord to be allowed to renew (i.e. to obtain a further lease on the same terms) for the benefit of the infant. The landlord refused, on the ground that the infant would not be bound by the covenants.
S then applied for a renewal for his own benefit.
The landlord granted the renewal to S.
Held, though S had acted perfectly honestly, he was bound to hold the renewed lease as trustee for K, for he had obtained this advantage indirectly by reason of his position as trustee for K.