Corson, J.
This is an action to compel the defendants to convey to the plaintiff a half section of land situated in Brookings county. Findings and judgment were in favor of the plaintiff, and the defendants appeal.
Such of the court’s findings of fact as we deem material to a proper understanding of the questions to be considéred are: •“(3) That on the 27th day of May, 1901, the- plaintiff, the *298Brookings Land & Trust Company, and the defendant, The-man J. Bertness, entered into an agreement wherein and wherebjr the said Theman J. Bertness became and was to act as agent for the said Brookings Land & Trust Company, plaintiff herein, in the matter of the purchase and conveyance to the plaintiff of the following described land situated in the county"1 of Brookings and state of South Dakota, to wit: * * * (4) That under and by virtue of the terms of said contract and agreement the plaintiff was to pay the said defendant, Theman J. Bertness, the sum of $1.25 per acre, or $400, and the said Theman J. Bertness was to receive said sum of $400 for services as such agent for the plaintiff. * * * * * (5) That the defendant Theman J. Bertness, acting as such agent for the plaintiff, and under its directions and instructions to purchase and procure the conveyance of said real estate to the plaintiff, did wrongfully, fraudulently and against the will and without the consent of the Brookings Land & Trust Company, the plaintiff herein, negotiate for the purchase of the said real estate from the owner thereof, one Crawford S. McWilliams, for the benefit of him, the said Theman J, Bertness, and the said Theman J. Bertness, defendant herein, wrongfully, fraudently, and contrary to his duties and obligations as such agent for the plaintiff, and regardless of the rights of his said principal, the Brookings Land & Trust Company, the plaintiff herein, obtained and procured the conveyance of the said premises by warranty deed from the said Crawford S. McWilliams to the defendant Julia T. Bertness, wife of the said Theman J. Bertness, and one of the defendants herein, which warranty deed was so executed by said Crawford S. McWilliams to said Julia T. Bertness on or about May 28, 1901, and *299was duly acknowledged so as to entitle the same to record, and the same was thereafter, and on June 6, 1901, at 11:15 o’clock a. m., filed for record in the office of the register of deeds in and for said Brookings county, South Dakota, in Book 29 of Deeds, at page 560, and that the consideration expressed in said deed was the sum of fifty-six hundred dollars. * * * (7) That said deed was so made by the said Crawford S. McWilliams to the said Julia T. Bertness, wife of Theman J. Bertness * x * for the purpose of evading the liability of the said Theman J. Bertness, as agent for the plaintiff as aforesaid, and to hinder and delay the plaintiff in the enforcement of its rights in the procurement of the conveyance of said premises.” The court also finds that said defendants had full knowledge of plaintiff’s rights, and that the plaintiff had duly tendered the full amount paid by them as the consideration for the said premises, and also the sum of ipfOO as commission for the purchase of the same. The court concludes, as matters of law, “that all the material allegations of the plaintiff’s complaint have been established by competent evidence, and that the plaintiff is entitled to the relief demanded in said complaint.”
It is contended on the part of the appellants that the evidence in regard to this transaction, upon which the court makes its findings, was inadmissable,. as the controversy was one concerning the sale of lands, and therefore within the statute of frauds, and could only be proved by some agreement or memorandum in writing subscribed by the party to be charged therewith. It is further contended by the appellants that the findings are not supported by the evidence.
It is insisted by the respondent, in support of the judg*300menfc of the court below, that the contract between the plaintiff and Bertness was one of agency, and could have been established entirely by parol evidence, and was not within the statute of frauds, and, though not necessary, the agency was in.fact evidenced by a written memorandum. It is further insisted that the defendants are seeking now to set up the statute of frauds for the purpose of carrying out their fraudulent transaction.
The evidence, while somewhat con dieting, in our opinion, fully supports the findings of the court. The reproduction of all the evidence in this opinion would serve no useful purpose, and it must suffice to state that it is undisputed that the plaintiff commenced negotiations with Dr. McWilliams "for the purchase of the land in controversy by sending him a telegram requesting him to wire the price and terms of sale; that McWilliams, instead of replying by wire, wrote to the plaintiff and also to Bertness, who it seems, had attended to some of the business pertaining to his lands in Brookings county, and asking him to give him the value of the land. Bertness called on the president of the plaintiff and informed him that he could get this property for him, and after some conversation, it was agreed between the president and Bertness that Bertness should act as the agent of the plaintiff in purchasing the property, and should receive therefor the consideration of $1 per acre. This was subsequently increased to $1.25 per acre. This contract as to commission was reduced to writing, and is as follows: “5-27-01. Mr, T. J. Bertness: We will pay you $1 per acre commission if you can get the Dr. C. McWilliams half section west of Brookings for us with half of the crop for year 1901, for a price not to be above eighteen dollars per acre. (Signed.) Brookings Land & Trust Co., by C. E. Childs.
*301It is quite clear from the evidence that Bertness was employed as agent b,y the plaintiff to purchase the property, and sent to McWilliams a telegram prepared by the president of the company, but signed by Bertness. Bertness having assumed the relation of agent for the plaintiff, it was not competent for him to take the deed in his own name or the name of his wife for his own use. It is true under the understanding he might have taken the legal title in his own name, but it would have been simply so taken for the benefit of the plaintiff. After assuming to act as the agent of the plaintiff in the purchase of the property, with the amount of commission as such agent fixed, the taking of the property in his own name or the name of his wife, without the knowledge of the plaintiff, was clearly in violation of his fiduciary relations as such agent, and be, or his wife for him, became a trustee for the plaintiff of the property under the statute. It seems to be a well-settled rule in courts of equity that the plea of the statute of frauds can never be allowed to be used' as an instrument of fraud. In other words, the statute of frauds is to prevent frauds and perjuries, and not to protect frauds. In Luscombe v. Grigsby, 11 S. D. 408, 78 N. W. 357, this court held that sections 3915 and 3920, Comp. Laws 1887 (providing that “every one who voluntarily assumes a relation of personal confidence with another is deemed a truslee,” and one-who gains a thing by fraud, the violation of a trust, or other wrongful act, is an involuntary trustee of the thing gained), include an agent appointed to foreclose a mortgage for his principal, who bid in the property in his own name. The rule established in that case is clearly applicable to the case at bar. As above stated, the relation of Bertness to the plaintiff was that of an agent, and he therefore *302occupied a fiduciary relation, which, so long as it continued, prevented him from acquiring any rights to the property adverse to those of his principal.
It is contended on the part of the appellants that, as the price of the land exceeded $18 per acre, as mentioned in the original contract of agency, when Bertness failed to obtain the land at that price his agency terminated, but we cannot agree with counsel in this contention. Bertness could not consider the negotiations closed until he had informed the plaintiff of the price per acre for which the land could be purchased, and the plaintiff had either accepted the property or had declined to accept the same, and thus closed the agency transaction. Bertness failed to inform the plaintiff that McWilliams would not sell for the price mentioned in the telegram, but proceeded to purchase the property at a trifling advance over the price so mentioned, and took the title in the wife’s name.
It is also contended on the part of the appellants that the plaintiff lost nothing by the transaction, and that it was not placed in any different position from what it would have been had not these negotiations been entered into, but this contention cannot be sustained. The plaintiff as we have seen, had already commenced negotiations with McWilliams for the purchase of the property, and by reason of its agreement with Bertness omitted to continue them, and trusted to the defendant Bertness to carry on the same for it, and by reason of these negotiations it lost the opportunity of purchasing the property.
In Wood v. Rabe, 96 N. Y. 414, 48 Am. Rep. 640, the Court of Appeals of New York says: “There are two principles upon *303which a court of equity acts in exercising its remedial jurisdiction, which, taken together, in our opinion entitled the plaintiff to maintain this action. ‘ One is that it will not permit the statute of frauds to be used as an instrument of fraud, and the other that, when a person through the influence o.f a confidential relation acquires title to property, or obtains an advantage which he cannot conscientiously retain, the court, to prevent the abuse of confidence, will grant relief. x * * The principle that, when one uses a confidential -relation to acquire an- advantage which he ought not in equity and good conscience to retain, the court will convert him into a trustee, and compel him to restore what he has unjustly acquired or seeks to unjustly retain, has frequently been applied to transactions within the statute of frauds.” Massie v. Watts, 6 Cranch, 148, 3 L. Ed. 181; Church v. Sterling, 16 Conn. 388; Banks v. Judah, 8 Conn. 145; Ryan v. Dox, 34 N. Y. 307, 90 Am. Dec. 696; Church v. Kidd, 3 Hun. 254; Moore v. Crawford, 130 U. S. 122, 9 Sup. Ct. 447, 32 L. Ed. 878; Brison v. Brison, 75 Cal. 525, 17 Pac. 689, 7 Am. St. Rep. 189; Gruhn v. Richardson, 128 Ill. 178, 21 N. E. 18; U. P. R’y. Co. v. McAlpine, 129 U. S. 305, 9 Sup. Ct. 286, 32 L. Ed. 673; Rose v. Hayden, 35 Kan. 106, 10 Pac. 554, 57 Am. Rep. 145.
In Boswell v. Cunningham, 13 South, 354, 21 L. R. A. 54, the Supreme Court of Florida, in discussing, the duties of an agent, in the syllabus held: “Where' the agent employed to purchase for his principal purchases for himself, all the profits and advantage gained in the transaction belong to the principal, and the agent will be held to have taken the property as trustee for his principal. Such a trust comes within the exception provided for in the statute of frauds, as it arises out of *304the construction and operation of law, and may be established by parol.”
The case of Rose v Hayden, supra, is directly in point. In that case the Supreme Court of Kansas, in an exhaustive opinion, arrived at the conclusion that a party occupying the position of agent holds the property in trust for his principal, and the court in the course of the opinion says; “The controlling question in this case is not whether the principal advanced the purchase money or not, but it is whether, in equity and good conscience, the agent, who in fact purchased the property with his own money in his own name, in violation of his agreement with his principal, and in abuse of the confidence reposed in him by his principal, can be allowed to retain-the fruits of his perfidy. The weight of authority is, we think, that he cannot. Sanford v. Norris, 4 Abb. Dec. 144; Wellford v. Chancellor, 5 Grat. 39; Onson v. Cown, 22 Wis. 329; Winn v. Dillon, 27 Miss. 494; Cameron v. Lewis, 56; Gillenwaters v. Miller, 49 Miss. 150; Chastain v. Smith, 30 Ga. 96; Heard v. Pilley, 4 Ch. App. 548; Lees v. Nutall, 1 Russ. & M. 53, affirmed on appeal, 2 Mylne & K. 819; Taylor v. Salmon, 4 Milne & C. 134; Cave v. Mackenzie, Fisher, Ann. Dig. 1877, 400; Baker v. Whiting, 3 Sumn. 475 [Fed. Cas. No. 787]; Snyder v. Wolford, 33 Minn. 175, 22 N. W. 254 [53 Am. Rep. 22]; Peebles v. Reading, 8 Serg. & R. 484; Burrell v. Bull, 3 Sandf. Ch. 15. * * * * The facts that the defendant was the agent of the plaintiff for the purpose of negotiating for the purchase of the property; that in violation of his agency he purchased the property for himself, and took the title thereto in his own name; and the further facts that the plaintiff has elected to treat the defendant as a trustee holding the property for the plaintiff, and has *305tendered to the defendant the full amount which the defendant paid for the property, and an additional amount sufficient to compensate the defendant for all his services as agent — are, we think, sufficient to entitle the plaintiff to recover.”.
We are of the opinion that the findings of the court were fully sustained by the evidence, and that the exceptions? of the appellants thereto are without merit. We are also of the opinion that the court’s conclusions of law upon the findings are clearly correct, and the judgment of the court below and the order denying a new trial are affirmed.