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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-
CONSTRUCTIVE TRUSTS. 109 quences of letting trustees have the lease on refusal to renew to cestui que use." The rule is not confined to the renewal of leases nor to trustees. It is stated in the notes to Keech v. Sandford in White and Tudor's Leading Cases in Equity (7th ed. 695) in the following terms:— " Whenever a person clothed with a fiduciary or quasi-fiduciary character or position gains some personal advantage by availing himself of such character or position a constructive trust is raised by courts of equity, such person becomes a constructive trustee, and the advantage gained must be held by him for the benefit of his cestui que trust" However, it appears from the case of In re Biss (1903, 2 Ch. 40) that it is not correct to say that if a person not having a fiduciary character, but only partly interested in an old lease, obtains a renewal, he is a constructive trustee of the new lease, whatever may be the nature of his interest or the circumstances under which he obtained the new lease. On inquiry into the cases where the person renewing the lease does not clearly occupy a fiduciary position, " it appears to me," said Romer, L. J. (p. 61 of the report), "that a person renewing is only held to be a constructive trustee of the renewed lease if, in respect of the old lease, he occupied some special position, and owed by virtue of that position a duty towards the other persons interested." A tenant for life owes such a duty towards the remainderman; a partner owes such a duty to his co-partners; a mortgagee owes such a duty towards his mortgagor, and vice versa. But one of several tenants in common does not owe any such duty to the other tenants in common. The following are cases in which constructive trusts of this kind have been held to be created:— Illustrations. 1. A. by his will gives 1,000/. to his daughters, and makes B. and others his executors. A.'s estate comprises a lease which is renewed by the executors. The daughters are entitled to the renewed lease so far as may be necessary to secure their 1,000/. Holt v. Holt (1671), 1 Ch. Ca. 190. 2. A. mortgages a lease to B. ; B. renews the lease. A. is
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UNIVERSITY OF LONDON INSTITUTE OF A
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A THESIS UPON THE DEFINITION, CLASS
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TABLE OF CONTENTS. PAOK INTRODUCTOR
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INTRODUCTORY. THE term "trust" has
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Part L—TBUSTS IN GENEBAL. CHAPTEE
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DEFINITION OF A TRUST. 3 active or
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DEFINITION OF A TEUST. 5 owner. Thi
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DEFINITION OF A TEUST. 7 Mr. Justic
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DEFINITION OF A TRUST. 9 courts the
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DEFINITION OF A TRUST. 11 since the
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CLASSIFICATION OF TRUSTS. 13 constr
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CAPACITY OF PARTIES. 15 CHAPTEE III
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CAPACITY OF PARTIES. 17 The sanctio
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CAPACITY OF PARTIES. 19 party to it
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CAPACITY OF PARTIES. 21 Lunacy also
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THE TRUST PROPERTY. 23 CHAPTER IV.
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THE TRUST PROPERTY. 25 expectancy o
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CREATION OF EXPRESS TRUSTS OF LAND.
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CREATION OF OTHER EXPRESS TRUSTS. 2
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RULES DETERMINING INTENTION TO CREA
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ENFORCEABILITY OF EXPRESS TRUSTS. 5
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ENFOECEABILITY OF EXPRESS TRUSTS. 5
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Page 73 and 74: DISCLAIMER OF EXPRESS TRUST, 61 CHA
Page 75 and 76: DISCLAIMER OF EXPRESS TRUST. 63 hav
Page 77 and 78: CONSTRUCTION OF EXPRESS TRUSTS. 65
Page 83 and 84: CONSTRUCTION OF EXPEESS TRUSTS. 71
Page 87 and 88: INVALIDATING CAUSES. 75 CHAPTER XI.
Page 89 and 90: INVALIDATING CAUSES. 77 Guardian an
Page 91 and 92: INVALIDATING CAUSES. 79 upon good (
Page 93 and 94: INVALIDATING CAUSES. 81 ment is not
Page 95 and 96: INVALIDATING CAUSES. 83 UNLAWFUL PU
Page 97 and 98: INVALIDATING CAUSES. 85 7. Testator
Page 99 and 100: INVALIDATING CAUSES. 87 Immoral Tru
Page 101 and 102: RESULTING TRUSTS. 89 Part IIL—IMP
Page 103 and 104: RESULTING TRUSTS. 91 to give the tr
Page 105 and 106: RESULTING TRUSTS. 93 satisfied with
Page 107 and 108: RESULTING TRUSTS. 95 tion of A.'s e
Page 109 and 110: RESULTING TRUSTS. 97 or successive,
Page 111 and 112: RESULTING TRUSTS. 99 4. Copyhold la
Page 113 and 114: RESULTING TRUSTS. 101 Lastly, if A.
Page 115 and 116: RESULTING TRUSTS. 103 It does not s
Page 117 and 118: RESULTING TRUSTS. 105 CHAPTER XV.
Page 119: CONSTRUCTIVE TRUSTS. 107 B.—Const
Page 123 and 124: CONSTRUCTIVE TRUSTS. Ill (1857), 8
Page 125 and 126: CONSTRUCTIVE TRUSTS. 113 40 Ch. D.
Page 127 and 128: CONSTRUCTIVE TRUSTS. 115 4. A. and
Page 129 and 130: CONSTRUCTIVE TRUSTS. 117 The follow
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