
    Newton et al. v. Taylor.
    1. A trust raised by implication of law may bo proved by parol.
    2. An implied or constructive trust may be established from tbe acts of a party who lias obtained money upon the faith of hia agreement to buy lands in the name of his wife, and, having bought them, takes the title to himself.
    3. A husband, so receiving money, which would not have been advanced except upon the agreement that it was for the wife’s benefit, and tobe invested in her name, is an agent for the wife, and by taking the deed to himself, under such circumstances, makes himself a trustee ex maleficio.
    
    
      4. If the husband is a participant in inducing the purchase for the wife’s benefit, receives the money for that purpose to invest in her name, and then buys for himself, this is such a fraud as will create a trust against him and those claiming under him with notice.
    Error to tbe District Court of Carroll county.
    Keziah Taylor filed her petition in the Court of Common Pleas of Carroll county, against the representatives of Simeon Jennings, deceased, and others, stating that she is the widow of Pirn Taylor, and that about the year 1834, she, by her husband acting as her agent, purchased of Samuel Stokley a tract of land in Carroll county, for $2,000; that her husband’s means were such that he could not pay for said land, and that her brother, Mahlon "Whittacre, advanced $500 to help pay for the same; that it was the understanding between said "Whittacre, plaintiff, and plaintiff’s husband, Pim Taylor, that the deed for the property should he made to plaintiff. Her husband, instead of having the deed so made to her, fraudulently took it to himself. One-half of the land was sold for $1,100, the other half being paid for by the $500 advanced for the purpose hv plaintiff’s brother. Plaintiff’s husband borrowed money from Simeon Jennings, giving sundry mortgages on the property, which plaintiff refused to sign, on the ground that the land belonged to her. Jennings foreclosed the mortgages and bought in the property. Plaintiff says she was feme covert until 1866, and asks that she may recover the land, on the ground that her husband held it in trust for her.
    The answers deny all the allegations of the petition.
    The court of common pleas decided for the plaintiff. On appeal to the district court, that court made a special finding of facts as follows:
    “ That the plaintiff is the widow of Pim Taylor, deceased; that they were married before the year 1832, and during said year and since until his death were husband and wife. That in the year 1832, they then having no real estate, except a small lot and house thereon held in the right of the wife by gift from her father, and it not appearing that she had' any other estate, and they were desirous at that time of purchasing the lands in question, said lands being near to said residence, as a means of securing a homestead farm, that it was ascertained by said plaintiff and her husband that said lands with others hereinafter mentioned could be purchased with the aid of five hundred dollars to be used as an advanced payment, the price asked for said land being two thousand dollars ($2,000). That the said Pim Taylor was of such pecuniary means and credit that, without aid he could not obtain said money nor make said purchase; that it wuis then agreed between said plaintiff and her said husband that she should make application to her brother, Mahlon Whittacre, to advance five hundred dollars for the making of said purchase, upon the terms that if the same was obtained it should be used by said Pim Taylor in the purchase of said lands for said plaintiff, and that when said land was fully paid for, the deed therefor should be taken in her name. That pursuant to said agreement, said plaintiff, in the absence of her husband, applied to her brother for the advance aforesaid for the purpose aforesaid, making known to him the arrangement aforesaid between herself and her said husband, who thereupon did advance to her the said sum of five hundred dollars for the purpose aforesaid, upon the understanding that the same should be reimbursed to him, but upou the further understanding and agreement that-the same should be used as aforesaid, and without other security for repayment than the understanding and agreement aforesaid, and the said purpose and agreement as to-the use of said money being with him an essential part of the inducement to advance said money as aforesaid, without which the same would not have been made. That thereupon plaintiff' delivered said money to her said husband, who received the same with knowledge of the understanding upon which the same was so advanced, and for the purpose of carrying out said agreement; that thereupon said Pirn Taylor proceeded with another brother of plaintiff' to Steubenville, to the owner of said land, one Samuel Stokely, and entered into a contract in his own giame to purchase said lands in controversy, with the other land, viz., the east half of fractional section 2, in township-16, of range 6, at the said price of two thousand dollars. That afterward said Pirn Taylor transferred the portion of said lands last mentioned to Frederick Unkefer, upon his-agreement to pay said Stokely on said contract the sum of eleven hundred dollars, which he, the said Unkefer, did,, and thereupon, in 1834, received from said Stokely a conveyance of the same in part performance on his part of said purchase; that after said purchase plaintiff' mortgaged her house and lot first aforesaid, and raised thereon the sum of two hundred dollars, which was applied in part payment-for said land, and that some village lots were sold off said land and the proceeds applied in payment thereof. And afterward the said lands having been fully paid for, in 1835, the same was conveyed by said Stokely to said Pim Taylor-by deed in fee simple, mentioning no interest of said plaintiff therein. All of which facts, except the said conveyances and mortgage, were found upon parol proof only,, which was offered by the plaintiff'; and to each separate part of which, when so offered, the defendants, by their counsel, objected as incompetent, but the court overruled said several objections and.each of them; to which ruling the defendants, by their counsel, excepted, and no testimony was offered tending in any manner to show that there ever had been any writing establishing any of said facts or in any manner creating any trust in favor of, or ■other legal or equitable estate in said lands in, the plaintiff. That on the 29th day of October, 1842, said Pim Taylor ■executed to said Simeon Jennings a promissory note for the sum of $2,041, payable three years and two months from date, and to secure the same executed to him a mortgage on said premises in controversy, which was not executed by said plaintiff. That the said promissory note was given for an indebtedness accruing at various previous times of sums of which said Taylor had become indebted ■to him as security for others,-and for other moneys loaned to him by said Jennings at several times, and for portions -of which at previous times said Taylor had at different times previous thereto executed mortgages on said lauds, :and to which sums at different times considerable sums of money had been added from time to time as usurious interest, but what amount beyond the amount deducted therefrom in the decree hereinafter stated, the court are not advised. That previous thereto, on the 4th day of May, 1840, said Taylor, with one Seaton and one Craig, was liable to said Jennings for the sum of $875 as sureties for one Roofs, and for said liability, and no other consideration, on said day executed to said Jennings a note for $1,000, payable thereafter, and on the 3d day of November, 1842, gave to said Jennings, in renewal of said note, and for no other consideration, a negotiable note, payable to •said Jennings eighteen months from its date, for the sum ■of $1,216, and interest thereon, and to .secure the same, the .said Taylor, Seaton, and Craig executed to said Jennings a mortgage upon said lands in controversy, and upon other lands of said Seaton and Craig respectively. That on the 27th day of April, 1844, being nine days before the maturity of the same, said Jennings, for the purpose, on his part, among other things, of preventing the said makers from defending against the usurious consideration of said note, transferred said note and mortgage (but without any-written transfer of said mortgage) to one Richard Webb. That said .Webb, in July, 1844, prosecuted a suit to foreclose said mortgage in Carroll County Common Pleas, making said mortgagors and said Jennings, but not the plaintiff, parties thereto. That defense therein was made, .among other defenses by said Taylor, against said $1,216 note as to its usurious consideration as to all amounts, except the sum of $875, with interest thereon from May 4, 1840, but such proceedings were had in said cause that notwithstanding said defense, and notwithstanding such usurious considerations were admitted therein by said Jennings, yet, at the October term of said court, in the year 1846, a final decree was rendered therein, finding in favor of said Webb that there was due from said mortgagors to him thereon the sum of $1,506, and ordering the payment of the same, and in default thereof ordering as hereinafter stated, and finding due to said Jennings upon said note in his favor secured by mortgage on said land in controversy, and dated on the 29th day of October, 1842, hereinbefore described, and which he has set up in said suit, the sum of $2,200 and upward, and finding the same to be a first lien upon the said lands in controversy, and ordering the sale of all of said lands, the proceeds of said land in ■question in this case, to be first applied in payment of the amount found due said Jennings on said note and mortgage on said 29th of October, 1842, and all further proceeds of said lands to be applied, so far as necessary, to the payment of said mortgage to said Webb, the costs of said suit to be .also satisfied out of said proceeds. That subsequent thereto and before -- term of said court in 1847, the lands in •question were sold under said order to said Jennings for less than the amount due him as aforesaid, and that at said term said sale was approved and confirmed and a deed ordered therefor, which was duly made to said Jennings by the proper sheriff in proper form, and said Jennings accepted possession thereunder, said Pirn Taylor with his wife having remained in possession from the date of the-deed to him until said sale and conveyance by the sheriff. And the court further find that at the time of the making of said mortgage on the 29th .day of October, 1842, said-Jennings, by reason of the facts aforesaid in regard to the-origin of said debt and the making of said previous mortgages, and the security of portions of said indebtedness-thereby, and of the nature of .plaintiff’s claim aforesaid, had no such notice of the rights of the plaintiff in said lands as ought to affect his rights to have said mortgage of said October 29, 1842j satisfied out of said lands; but the court find that before his assignment of his mortgage to said "Webb he w'as informed by said plaintiff, and fully understood from her that she claimed said lands to be hers; that she claimed that her husband had no right to have mortgaged the same; that she claimed that he did not furnish the money for its purchase; and she claimed that she had admonished him before any said mortgages had been made; and that she claimed that by reason of her rights in the-same said Jennings could not take the same from her; and the said Jennings had then full opportunity by reason of said claim on her part to have inquired for and learned any of the facts aforesaid in regard to the rights of plaintiff" against said lands; and that the said Simeon Jennings had full opportunity by reason of said information to have caused said Keziah Taylor to be made a party to said proceedings to foreclose at or after the commencement of the same; and the court find from the facts as aforesaid as matter of law, that the purchase of said lands by said Pim Taylor was subject to a trust in favor of said plaintiff', so that the said Pint, on receiving a deed therefor, held the same in the right of his said wife only, and that the same so- continued, the said mortgages and proceedings thereon notwithstanding; and that by virtue thereof and of said purchase by said Jennings, and because of the facts aforesaid in relation thereto, the said land and its proceeds was in the hands of said Jennings, and, as against the plaintiff", a fund for the payment of said debt secured by said mortgage held by him, and, subject to the matters hereinafter stated, so continues to be; that by his use and occupation thereof since, .and by his sales of a portion thereof to bona fide purchasers without notice, he has received considerable sums which ought to be applied in discharge of said mortgage debt, but what amount the court is unadvised. And the court hold .as matter of law that by reason of the matters as aforesaid, .and of the lapse of time since the rendition of said decree, the amount of said debt to said Jennings as found therein .should not be further reduced by reason of any allegation or claim of usury therein, but only by reason of the use mid occupation of said lands by said Jennings, and of the defendants, and the proceeds of any sales thereof by said Jennings in his lifetime, and that an account oughf to be taken for the purpose of determining the amounts aforesaid.
    “ It is therefore ordered, adjudged, and decreed that this ■cause be referred to Elijah P. Grant, Esq., as a referee to take and state an account between said parties, based upon the facts stated in this decree, and upon proof, and the said referee report his proceedings to the next term of the District Court of Carroll county, Ohio, and that he file his account thirty (30) days before the next term thereof, to .all of which findings, holdings, and orders, the defendants by their counsel except, and pray that their exceptions be entered of record, which is accordingly here done in open court.” . . .
    The case involves another point. A number of the defendants were not served with process, and did not appear and answer; they were residents of the state, though not ■of Carroll county. In a publication to make non-residents parties, the names of these individuals were included. They now file cross-petitions in error, and claim that not having been served, not having appeared, and as the publication could not make them parties, a judgment against them was error. They say therefore that the certain judgment, as'well that against themselves, as that against the others, should be reversed.
    
      
      F. E. Hutchins, for plaintiff in error.
    
      Shober & Raley, for defendants in error.
    
      Kennett & Ambler, for J. H. Jennings, on cross-petition in error.
   Wright, J.

The statement of facts is long and complicated, but we extract this: Mrs. Keziah Taylor brought suit to enforce what she claimed was a trust, existing in her favor, in certain land, held in her husband’s name, at his death. She claims that the circumstances under which, the land was bought create this trust.

Many years ago, in 1832, Pirn Taylor, the husband, was-without means. He and his wife wanted to buy some land. The price was $2,000, a sum that Pirn Taylor could not raise. A payment of $500 could secure the bargain, but the husband had neither cash nor credit to this extent. Under these circumstances, husband and wife agreed that she should get the needed sum from her brother, Mahlon> Whittacre, the land to be purchased for her, and, when paid for, the deed to be taken in her name. Pursuant to-this arrangement, plaintiff did get the $500 from her brother,, advising him of the facts; the understanding being that he was to be reimbursed; that the money was to be used as indicated, this being his sole security for repayment. This understanding and agreement about the purchase of the property was the inducement to the brother to advance-the $500, and without it he would not have made the advance.

Thereupon the husband buys the land. One-half of it is sold, the proceeds going to pay for the purchase of the whole. Some lots, carved out of the purchase and some-property of the wife made further payments, and finally, the property being all paid for, the husband has the deed made, not .to the wife, but to himself. The wife claims-that these circumstances raise a trust in her favor as to this land so taken in her husband’s name, which is half of the-whole original purchase. The facts of the alleged trust-rest in parol merely, and it is claimed they can not be thus proved.

After tbe husband had thus got the deed for the property in his own name, he made two mortgages upon it to Simeon Jennings. The first mortgage was taken without knowledge of the alleged trust, and, as against this, the district court finds the wife has no claim. The second mortgage was assigned to one Webb, with notice of the alleged trust, and as to this her rights are held to be paramount.

It is to be determined whether or not, from the facts found, the alleged trust can be raised in law.

The husband was unable to buy the property. He was unable even to raise the first $500. The wife undertakes to do it. She gets it from her brother upon the understanding that it is to purchase laud in her name. Without this understanding, he would not have advanced it at all, and this understanding is all the security he asks or gets for a repayment. Knowing all this, having been instrumental in bringing it about, for the husband to violate the whole agreement from beginning to end, by taking the deed in his own name, is, to say the least, very like a fraud, both upon his wife and upon her brother.

A trust may arise ex maleficio. In Lloyd v. Spilletts, 2 Atk. 148, Lord Hardwicke speaks of resulting trusts as trusts by operatiou of law, and classifies them : First, where an estate is purchased in the name of one person, but the money or consideration is given by another; secondly, where a trust is declared only as to part, and nothing said as to the rest, what remains undisposed of results to the heir at law. He then proceeds to observe : “ I do not know of any other instance besides these two where this court have declared resulting trusts by operation of law, unless in cases of fraud, and where transactions have been carried on mala fide.” These remarks of Hardwicke are cited in Fleming v. Donahoe, 5 Ohio, 255.

In the report of the same case (Barnardiston’s Chy. 888), the lord chancellor says that the two cases of trusts above alluded to are the only two instances that he remembered of trusts that have been allowed to arise by operation of law since the statute of frauds and perjuries, unless where there has been a plain and express fraud. "Where there has been, a fraud in gaining a conveyance from another, that may be a reason for making the grantee in that conveyance to be considered merely as trustee. Trapnall v. Brown, 19 Ark. 89.

A trust of this kind is a mere implication of law, from the fact of the purchase with another’s money, and the fact of fraud in procuring the legal title.

In Browne on Frauds, § 84, it is said : “ Even where the contract to hold in trust is the means of obtaining the legal title, a case which falls under the third class mentioned by Lord Ilardwicke, the trust is not created by the contract, but results or is implied from the fraud.”

Perry on Trusts, § 166, speaks thus : “ There is another large class of trusts, which arise from frauds committed by one party upon another. Thus, if one party procures the legal title to property from another’, by fraud or misrepresentation, or concealment, or if a party makes use of some influential or confidential relation which he holds toward the owner of the legal title, to obtain such legal title from him upon more advantageous terms than he could otherwise have obtained it, equity will convert such party thus obtaining property into a trustee. If a person obtains the legal title to property by such arts, or acts, or circumstances of circumvention, imposition, or fraud, or if he obtains it by virtue of a confidential relation and influence under such circumstances that he ought not, according to the rules of equity and good conscience, as administered in chancery, to hold and enjoy the beneficial interest in the property, courts of equity, in order to administer complete justice between the parties, will raise a trust out of such circumstances or relations; and this trust they will fasten upon the conscience of the offending party, and will convert him into a trustee of the legal title, and order him to hold it, or to execute the trust in such manner as to protect the rights of the defendant party and promote the safety and- interests of society. Such trusts are called constructive ■trusts.” These trusts the author distinguishes from implied or resulting trusts, which arise from the intention of parties, as manifested in contracts made in good faith, while the constructive trust arises from the opposite of good faith.

Washburn e makes the same classification of implied, resulting, and constructive trusts. 2 Wash. 470.

In the case of Morey v. Herrick, 18 Pa. St. 128, it is said: It is well settled that if one be induced to confide in the promise of another that he will hold in trust, or that he will purchase for one or both, and is thus led to do what he would otherwise have forborne, or to forbear what he contemplated to do in the acquisition of an estate, whereby ■the promissor becomes the holder of the legal title, an attempted denial of the confidence is such a fraud as will operate to convert the purchaser into a trustee ex maleficio.”

Commenting upon this ease, Tiffany & Bullard on Trusts, 189, say: “ The trust in these cases is raised ex maleficio, and is not so much because of the fraud in the original acquisition of the property as in the subsequent refusal to execute the trust.” The opinion, however, of Browne, in his treatise on frauds, seems to be that the fraud which suffices to lay the foundation of a trust is not simply that fraud which is involved in every deliberate breach of contract. There must have been some agency in bringing about the result, without which a mere refusal to perform the trust is not enough. Browne on Frauds, §' 94. And Perry says that the mere breach of a parol agreement will not create a trust. § 215.

Washburne, in discussing this division of implied, resulting, and constructive trusts, speaks of the first two as arising from the act of parties, while the constructive trust is imposed in invitum upon the person who is held as trustee. 2 Wash, book 2, ch. 3, § 2, p. 470 (4th ed.)

And he further observes (p. 482) that the term construc"tive trusts is sometimes used in a sense broad enough to •embrace such as were properly under the head of implied or resulting trusts; and that, properly speaking, constructive trusts are such, as are raised by equity, in respect to property which has been acquired by fraud, or where, though originally acquired without fraud, it is against equity that it should be held by him who has the legal title.

"Washburne also seems to entertain the same opinion expressed by Perry and Browne, that a mere subsequent refusal to do what had been agreed, is not such a fraud as will create a constructive trust. 2 Wash. 479. And a like view is held in Fickett v. Durham, 109 Mass. 423. “In no case will the grantee be deemed a trustee, if he used no fraud or deceit in getting his title, although he verbally promises to hold the land for the grantor.” Minor v. Mitchell, 30 Ind. 234.

■ It may, however, be remarked, that the federal courts go to the full extent of affording relief, even in the absence of proof of express deceit or fraudulent purpose at the time of taking the deed. Russell v. Southard, 12 How. 139, 148. This is illustrated in numerous cases where a party takes a deed, absolute upon its face, but which is really a mortgage, and endeavors to retain property upon which he has advanced a largely inadequate consideration. Edrington v. Harper, 3 J. J. Marshall, 355; Campbell v. Dearborn, 109 Mass. 130.

. It is strenuously argued by plaintiff in error, that the only fraud here alleged or proved, consisted simply in the -fact that Taylor refused to do as he had promised, and that -there was nothing in the inception of the transaction that would bring him within the rule requiring fraud to be shown in his conduct at that time.

But if a party induces or brings about the circumstances-that put him in a position whereby he is able to perpetrate a fraud, and then does perpetrate it, these circumstances-of wrong will create a trust. In Hoge v. Hoge, 1 Watts, 163, the syllabus gives an idea of the facts. “ If a testator be induced to make a devise, by the promise of the devisee that it should be applied to the benefit of another, a trust is thereby created, which may be established by parol evidence ; and this is not contrary to the statute of wills.”

It appeared that John Hoge, the devisee, “ suggested ” to-the testator to devise the property to him, it being intended for the testator’s son, William Hoge. Nothing was said in the will about any trust, but it was sought to be established by parol. Gibson, C. J., says (p. 214): “Undoubtedly every part of a will must be in writing; and a naked parol declaration of trust, in respeqt of land devised, is void.. The trust insisted on here, however, owes its validity, not to the will or the declaration of the testator, but to the-fraud of the devisee. It belongs to a class in which the trust arises ex maleficio, and in which equity turns the fraudulent procurer of the title into a trustee, to get at him; and there is nothing in reason or authority to forbid the-raising of such a trust from the surreptitious procurement of a devisee.” It is further said, in the same case : The question has been, as to the eircumstauces which constitute-such a fraud, as will be made the foundation of a decree. A mere refusal to perform the trust is undoubtedly not enough ; and it seems to he requisite that there should appear to have been an agency, active or passive, on the part of the devisee, in procuring the devise.”

In Devenish v. Baines, Pre. in Chy. (Finch), case 3, a testator intended to will the greater pai’t of his estate to-his godson, and the rest to his wife. The wife persuaded him to give the whole to her, and that she would give the-godson the part designed for him.

The wife refused to let the godson enjoy the estates intended for him, but it was decreed against her on the ground of fraud, saying that a trust of such parol estate might be raised without writing, notwithstanding the statute of frauds.

In Flynn v. Flynn, a man made his will with his wife as-executrix. The son afterward prevails on his mother to-get the father to make a new will, and to name him executor, he promising to be a trustee only for his mother. “ Upon the whole matter,” says the report, “ it appearing to be as well a fraud as a trust, the Lord Keeper, notwithstanding the statute of frauds and perjuries, though no trust was declared in writing, decreed for plaintiff.”

In Sechrist’s appeal, 66 Penn. St. 237, the fifth syllabus is: •“ Where one procures a title which he could not have obtained, except by a confidence reposed in him and abuses the confidence, he becomes a trustee ex maleficio. Beegle v. Wentz, 55 Penn. St. 369.

In Squires’ appeal, 70 [Penn. St. 266, Mrs. Squires, by parol, purchased property. Her agent, Ridgway, who owed her $5,000 was to turn this amount in as the purchase-money, and receive a deed in trust for her. He took an .absolute deed to himself and then denied the trust. He was held a trustee ex maleficio. Woolford v. Herrington, 74 Penn. St. 311; S. C., overruling former, 4 South. Law Rev., 327, June, 1878.

In Rasdall’s Adm’rs v. Rasdall, 9 Wis. 379, the fraud ■consisted merely in a refusal to execute a trust, and this was held not such fraud as would justify the admission of parol evidence of the agreement. And in this case the distinction between fraud in procuring the conveyance and that which arises only from the refusal to execute a parol trust or agreement, connected with a conveyance obtained without fraud, is said to be not only clear upon principle, but is not without'sanction. The ground of the decision is that the conveyance in question was “ without any solicitation or instigation of the defendant.”

It can not be said that Pirn Taylor’s refusal to fulfill his promise is the only ground on which to base the alleged trust. He appears to have been a participant, at least, in bringing about the whole arrangement. He agreed with his wife that the purchase should be made. He agreed with her that she should solicit the loan from her brother. He agreed to take the deed in her name. Unless he had agreed and consented to all this, the loan or advance would not have been made. Certainly, therefore, he induced the result, as the devisee induced the devise which he endeavored to hold as his own. Taylor, therefore, becomes a tr.ustee by virtue of Ms own wrongful acts. . He took in confidence what he could not retain, without bad faith and fraud.

Courts of equity raising a trust by construction in eases of this kind, can do equal and complete justice between parties, though in so doing the relief is founded more upon fraud than upon the idea of trust as generally understood. "When it is said that a person who has defrauded another out of his estate, by misrepresentation or other deceptive practices, is converted by the court into a trustee, and held as such, the expression is used for the purpose of describing-the nature and extent of the remedy against him, and it denotes that the parties defrauded, or beneficially entitled,, have the same rights and remedies against him, as they would be entitled to against an express trustee who had fraudulently been faithless. And though perhaps the matter in question is not, strictly speaking, a trust at all, but a ground of relief based on fraud, courts are agreed in administering the same remedy in a certain class of frauds, as an administration in fraudulent breaches of trust, and the mere name of the thing is not of so much consequence as the achieving the right remedy in the premises. And this arises, says Washburne, from the control which courts of chancery exercise over equitable estates, whereby in cases of fraud, mistake, or the like, they may require a grantee to hold subject to a trust in the nature of a resulting trust. 2 Wash. R. P., book 2, chap. 3, § 2, p. 482 (4 ed.)

In the case of Jenkins v. Eldridge, which was a case where a trust was sought to be raised, Judge Story says that it is a trust of a somewhat novel and extraordinary character, seeming to contain the elements of resulting trust, agency, fraud, and specific performance, and between them all, he seems to find a solid basis on which to rest the decision. This case does not seem to be highly regarded in 1 W. & G. Leading Cases in Eq. 358, 361 (Am. notes).

The principle of agency may be applied to Pim Taylor. Says Perry on Trusts (§ 206), speaking of the duties of am agent, he may be held as a trustee, if he makes use of' his position in any way to obtain a title to himself. “ If he takes a conveyance in his own name, he is a trustee ex maleficio.”

Pim Taylor, when he received this $600, was certainly acting for somebody. It will not do to say that as soon as the wife obtained the loan, and handed it over to him, from that moment it became his personal property, by virtue of his marital rights. Moulter v. Haley, 57 N. H. 184; Hick’s Ex’rs v. Skinner, 71 N. C. 539.

Whether the husband has reduced the wife’s chattels to possession, so as to make them his own, is a question as to the intention of the parties. Houston v. Clark, 50 N. H. 479; Hall v Young, 37 N. H. 134.

Marital rights are not so overshadowing in their extent, nor so indiscriminate in their exercise. The money was advanced by the brother for certain specific purposes. One ■of those purposes was that the husband should not have it, nor any part of it, nor any interest therein. Another was that it should all go for the benefit of the wife, with an ultimate view to security to the lender. Pirn Taylor, therefore, had no right to it in any way, except to do with it as he was directed. When he violates his duties, as he did, he •can not disrobe himself of his character as agent, and the consequences of that character must attach to all his proceedings.

We think that a fair construction of the finding shows that the money was advanced so as to be the money of the wife. This was the object of the brother, in order that the land bought with it might be hers. Because both husband- and wife desired the purchase of the lands, and the loan, •does not tend to show, as seems to be claimed, that the loan was to both. The reverse is true ; the advance was “ to her.” Nor does the fact that'fhe money was to be repaid, or that the brother looked for his security to the agreement, as to the purchase tend to show that the money was not hers. The loan was just as much hers as if it was a gift.

And we think the finding sufficiently shows that the $500 went into'the purchase. The residue of the purchase-money is accounted for, and the full amount, which the decree shows was paid, can not be made up without this sum.

That a trust arising by operation of law may be proved by parol evidence, see Williams v. Van Tuyl, 2 Ohio St. 337; Byers v. Wackman, 16 Ohio St. 450.

We do not think that lapse of time should bar Mrs. Taylor from asserting her rights. She did so shortly after her husband’s death. She wás not bound to do so before, at the risk of creating trouble in her family.

With regard to the cross-petitions in error, the judgments, as to the parties, will be reversed, but the right is not of that joint character that requires reversal as to all. If a party obtains a reversal as to himself, it can not advantage him that there- should be a reversal as to somebody else.

Judgment affirmed as to all except those who were not properly made parties, who have filed cross-petitions in error on that ground.

Day, J., dissented.  