This is a family case, an effort to impose a constructive trust on one of the daughters.. It involves a piece of land, the ownership of which is disputed. The mother of the children here involved was Mrs. Barbara Klein. She owned real estate in Oakland county. She had 6 children, but she was going to split her property only 5 ways. The reason for this was that the 6th child, a daughter living in California, had been helped in other ways.
Actually, however, there were only 4 grantees toiler real property. The son who would normally have been the 5th grantee, John, was not well. . Tie had undergone treatment, at times, in various mental institutions. His mother felt it would be unwise to vest title in him. Consequently, acting upon the advice of another son, Harold, and a son-in-law, she put the title to certain acreage intended for John (according to the proofs and the findings of the trial chancellor) in the name of his sister, Edith Klein, defendant here. On the same date she conveyed to Edith other acreage, in fact intended for her, and concerning which no question is raised. Thus on the same date the mother conveyed to her daughter, Edith, by 2 separate deeds, 2 separate parcels of real estate, one admittedly intended for her, the other allegedly for her at-times incompetent brother, John. Edith was selected as titleholder, it was testified, because she had no creditors.
Edith’s deed was delivered to her. The one allegedly intended for John was not. Although the latter deed was recorded, it was. kept in Harold’s possession. Edith was not present when the arrangement was worked out and the proofs do not disclose whether or not she knew anything about it right away. She did riot take the stand. She did know about it, however, at the time of John’s death, because she was told of it by Harold, who later asked her to convey the land to John’s widow. She re *655 fused. Plaintiffs (John’s widow and only son) brought this bill in chancery to impress a constructive trust upon the property and “to obtain specific performance of said trust.” The trial chancellor found that it was the intention on the part of the mother to have the property held for the benefit of the brother and “for that purpose only,” that a valid trust had been established and “that the deed was given for the benefit of the incompetent son.” Conveyance was accordingly decreed to plaintiffs. Defendant appeals.
The appellant sets up the statute of frauds
*
as preventing the imposition of an express trust and asserts that the record does not support the imposition of a constructive trust. It is said that there is no evidence of a confidential or fiduciary relationship, and that mere family ties are not enough, citing
Funk
v.
Engel,
But what of the statute of frauds? Defendant urges again and again that she made no promise whatever to hold in trust, that nothing was sgid about a trust, and, as a clincher, that even if she had so orally promised the promise would have been unenforceable under the statute of frauds. Her conclusion is that she keeps the land.
What is overlooked in all of this is the fact that the constructive trust is not a trust at all, any more than a quasi-contract is a contract. See 4 Scott on the Law of Trusts, § 462.1. Both are remedial devices. The constructive trust, as it was put by Mr. Justice Cardozo, “is the formula through which the conscience of equity finds expression. When property has been acquired in such circumstances that the holder of the legal title may not,' in good conscience, retain the beneficial interest, equity converts him into a trustee.”
Beatty
v.
Guggenheim Exploration Co.,
It is enough, to compel the surrender, that one feed and grow fat on that which in good conscience belongs to another, that he enjoy a windfall resulting-in his unjust enrichment, that he reap a profit in a situation where honor itself furnishes rich reward, where profit, the mainspring- of the market place, is both foreign and inimical to the trust reposed. These principles have been firmly established in this jurisdiction for many years and we do not propose to depart therefrom. Our holding in
Stephenson
v.
Golden,
“In Weir v. Union Trust Co.,188 Mich 452 , 463, it is said:
“ ‘Constructive trusts arise by operation of law. The following is found in 39 Cyc, p 169:
“ ‘ “Constructive trusts do not arise by agreement or from intention, but by operation of law; and fraud, active or constructive, is their essential element. Actual fraud is not necessary, but such a trust will arise whenever the circumstances under which property was acquired make it inequitable that it should *658 be retained by him who holds the legal title. Constructive trusts have been said to arise through the application of the doctrine of equitable estoppel,, or under the broad doctrine that equity regards and treats as done what in good conscience ought to be done. Such trusts are also known as trusts ex male-ficio or ex delicto, or involuntary trusts, and their forms and varieties are practically without limit, being raised by courts of equity whenever it becomes necessary to prevent a failure of justice.” ’ ”
Finally, appellant argues, even if she be found to be holding the land as constructive trustee, she should be ordered to convey it back to the estate of the mother, rather than to plaintiffs. Conveyance to them, we are told, “would be taking the constructive trust doctrine too far toward enforcement of an oral agreement concerning land.” This journey, if, indeed, it be such, does not appall us. When the remedial device of the constructive trust is employed, chancery orders whatever conveyance will remedy the wrong suffered, whether back to transferor, or to some intended third person. See Restatement, Restitution, §§ 169 and 123. Here, as the trial chancellor held, the land was intended for John. It shall, to his heirs, the plaintiffs, be conveyed.
Affirmed. Costs to appellees.
Notes
CL 1948, § 566.106 (Stat Ann 1953 Eev § 26.906) :
“No estate or interest in lands, other than leases for a term not exceeding 1 year, nor any trust or power over or concerning lands, or in any manner relating thereto, shall hereafter he created, granted, assigned, surrendered or declared, unless by aet or operation of law’, or by a deed or conveyance in writing, subscribed by the party creating, granting, assigning, surrendering or declaring the same, or by some person thereunto by him lawfully authorized by writing.”