| Miss. | Oct 15, 1876
delivered the opinion of the court.
We are satisfied that the several demurrers to the bill were properly sustained. We have given much attention to the question whether the bill states a case against Yerger which can be maintained. The charge made against him is that he “ undertook, promised, and agreed, as her agent and attorney, to attend the sale and bid in one-half of said property ” for the complainant, who had made arrangements to obtain from Mr. Helm the money to pay for such interest; and that Yerger, instead of doing as he promised, bought the property for himself, and had title made to himself instead of to the complainant. It is laid down, generally, by law-writers and judges, that, if one is employed to purchase for another and he purchases for himself, he will be held to be a trustee; that no one can hold a benefit acquired by fraud or a breach of his duty; that all the knowledge of the agent belongs to the principal for whom he acts ; and that, if the agent uses it for his own benefit, he will become a trustee for his principal. “ If he takes a conveyance in his own name, he is a trustee ex maleficio.” Perry on Trusts, § 206, and cases cited.
Again, it is announced, in an equally authoritative manner and with decided emphasis, that no trust in land can be set up by mere parol agreement, that no trust results from the breach of a mere parol contract, and that parol proof cannot be received to establish a resulting trust in lands purchased by an agent, and paid for by his own funds, no money of .the principal being used for the payment; for the relation of principal and agent depends upon the agreement existing between them, and the trust in such a case must arise from the agreement and not from the transaction, and where a trust arises from an agreement, it is within the Statute of Frauds and must be in writing. Perry on Trusts, §§ 134, 135. The distinction which reconciles the apparent contradiction in the foregoing principles is between a claim that a trust arises from the transaction of one who sustains a fiduciary relation to the claimant, and a claim that it arises or results from an agreement between
It is plain that the appellant’s assertion of right against Yerger to the land bought by him rests upon her allegation of the existence and the breach by Yerger of a parol agreement to attend the sale and buy the property for her. Such an agreement is not enforceable in the courts of this State, because it is in the teeth of the Statute of Frauds, and is not saved by the proviso. Code 1871, § 2896. The point is that the complainant’s claim is not to a trust arising or resulting by implication of law, but to one created by express agreement.
The Chancellor rightly refused to allow the amended bill to be filed. It “ would have changed the frame and essential character of the bill.” Clark v. Hull, 31 Miss. 5200. The decrees of the court below will be affirmed, but the bill will be dismissed without prejudice to any right of the complainant which she may hereafter assert.