a thesis - Institute of Advanced Legal Studies

108 IMPLIED TRUSTS.
court considers as involving him in the duties and responsibilities
of a trustee, although but for such conduct or behaviour he would
be a stranger to the trust. A constructive trust is therefore, as
has been said, ' a trust to be made out by circumstances.' "
The term, however, is used in a wider sense than is covered by
this statement. There need be no trust "already constituted" at
all. For instance, a vendor of land after contract, but before
conveyance, is said to be a constructive trustee for the purchaser,
as in Shaw v. Foster (1872, L. E. 5 H. L. C. 338), and other cases
cited below. Again, if one of three partners entitled to a lease
surrenders the old lease and takes a new one to himself, he is a
constructive trustee for the others, as the case of Featllerstonhaugh
v. Fenwick (1810, 17 Ves. 298) shows. Again, if a vendor executes
a conveyance before he has received his purchase-money, the
purchaser is a constructive trustee for him, as the leading case of
Mackreth v. Symmons (1808, 15 Yes. 329) shows, and so on. A
constructive trust, as has been shown, is a species of trust created
by implication or operation of law, being distinguished from the
other sub-class of such trusts, namely, resulting trusts, by the
characteristic of being independent of any intention of the parties.
Constructive trusts arise in three classes of cases:—
1. When a trustee or part owner of property gains an advantage
from his position as such ;
2. Agents employed by trustees become constructive trustees
in certain cases; and
3. Where the legal and beneficial interests in property are not
combined in the same person.
The leading illustration of constructive trusts of the first class
is the case of Keech v. Sandford (1726, Select Ca. in Ch. 61),
commonly known as the Eumford Market Case, in which Lord
Chancellor King decided that a trustee of a lease who had renewed
the lease in his own name and for his own benefit was a constructive
trustee for his cestui que trust of the renewed lease, although
there was no proof of fraud and the lessor had declined to renew
for the benefit of the cestui que trust. The Chancellor said that
the trustee should rather have let it run out than have had the
lease to himself. " This may seem hard, that the trustee is the
only person of all mankind who might not have the lease; but it
is very proper that rule should be strictly pursued, and not in the
least relaxed ; for it is very obvious what would be the conse-