11 Utah 51 | Utah | 1895
The facts disclosed by the record are that plaintiff is the executor of Hector C. Haight, and is one of his heirs;; that Alma D. Haight was a brother of plaintiff, and also an heir of Hector C. Haight; that the estate of Hector 0». Haight was in process of settlement in the probate court;, that defendant, Charles E. Pearson, was an attorney at. law, who had long been acquainted with plaintiff, and had often been employed by him; that Alma D. Haight was-desirous of selling his interest in his father’s estate, but. would only sell to some one interested in the estate, — that-is, to some other brother or sister; that plaintiff employed, the defendant to purchase the interest of Alma D. Haight,, and defendant accepted this employment; that subsequently defendant bought the interest of said Alma D. Haight, and paid his own money therefor, but at the time of the purchase, in order to induce Alma JD. Haight to sell, the defendant represented and said to him that he (defendant), was buying the property for plaintiff; that in a short timo thereafter the plaintiff tendered defendant the amount of the purchase price, together with ample compensation for his services, but defendant refused to accept either sum, and claimed that he personally owned the interest of Alma D. Haight in the estate of Hector C. Haight, he having taken the conveyance in his own name from Alma D. Haight. The plaintiff brings this suit, claiming that de
The first error assigned is that the court failed to find on the affirmative issue in the answer, as the fact therein-alleged, to wit: “That plaintiff was the executor of Hector C. Haight, deceased, was admitted to be true on the argument. We have treated it as an established fact in the case, and shall decide the case on this assumption.” Upon the facts so stated, the defendant raises two questions: First. The plaintiff was incapable of purchasing an interest in the estate, because he was executor. Being incompetent to purchase himself, he could not have another purchase in trust for him, and cannot, therefore, enforce any trust. Second. The defendant purchased with his own money; and while it is true that he agreed, both with plaintiff and the vendor, that he would purchase and hold for plaintiff, still this agreement was oral, and void under the statute of frauds. Upon the first point defendant relies on section 4196, p. 513, 2 Comp. Laws Utah, which provides: “No executor * * * must directly ■or indirectly, purchase any property of the estate he represents, nor must he be interested in any sale.” This section was construed by this court in the case of Ayres v. Jack, 7 Utah, 249, 26 Pac. 300, where it was held, in substance, that sales under it were not void, but voidable only, when the purchase was the interest of an heir. We are of opinion that this statute simply declares, in the case of executors and administrators, that which was, long
Now, as to the second point made by appellant, he relies upon the provisions of section 2831 of the Compiled Laws, which provides: “ No estate or interest in real property, other than leases for a term, not exceeding one year, nor any trust or power, over or concerning it, or in •any manner relating thereto, can be created, granted, •assigned, surrendered or declared, otherwise than by operation of law, or a conveyance in writing,” etc. Identically the same language is found in section 3916. Section 3917 provides: “ The preceding section must not be construed -* * * to prevent any trust from arising or being -extinguished by implication or operation of law,” etc. It is conceded by respondent that his only claim is that there ;is in this case a trust by implication or operation, of law; in other words, that the defendant, by his fraudulent •conduct, has created a trust, as some authors term it, ■“ eco maleficio,” in favor of the plaintiff. . On behalf of
Notwithstanding our statutes above cited, we hold that this case presents a trust arising constructively and by operation of law. Browne, St. Frauds, pp. 108, 104, speaking of this character of case, says: “Upon similar principles, if one falsely represent himself to be purchasing for another, and by that means * * * get the land at a cheaper rate, he shall be held a trustee for him in whose behalf he pretended to act. * * * 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; and this doctrine has been extended to cover those cases where