a thesis - Institute of Advanced Legal Studies

CONSTRUCTIVE TRUSTS. 107
B.—Constructive Trusts.
CHAPTER XVI.
CONSTRUCTIVE TRUST WHERE TRUSTEE OR PART OWNER
GAINS ADVANTAGE FROM HIS POSITION AS SUCH.
(1) WHERE a person—
(a) Being in a fiduciary relation to another, or
(b) Being one of several persons entitled to property
jointly in succession, or otherwise, so as to
place him under a duty to the other persons
entitled,
gains for himself any proprietary or pecuniary advantage
by virtue of such relation or title, he holds the
advantage so gained as trustee for the person or persons
to whom he is in the fiduciary relation, or who are
entitled to the property in respect of which it is gained.
(2) The trustee is entitled to repayment by the
persons in the last paragraph mentioned of any costs
and expenses properly incurred by him in obtaining such
advantage, together with interest thereon and the value
of any permanent improvements made to it by him, and
to an indemnity against any liabilities properly contracted
in respect thereof, and to a charge therefor on
the trust property in his control.
"A constructive trust," said Lord Justice Bowen in Soar v.
Ashwell (1893, 2 Q,. B. at p. 396), "is one which arises when a
stranger to a trust already constituted is held by the court to be
bound in good faith and in conscience by the trust in consequence
of his conduct and behaviour. Such conduct and behaviour the