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West's Ann.Cal.Civ.Code § 2224

West's Annotated California Codes Currentness

Civil Code (Refs & Annos)
Division 3. Obligations (Refs & Annos)

Part 4. Obligations Arising from Particular Transactions (Refs & Annos)

Title 8. Involuntary Trusts (Refs & Annos)

§ 2224. Wrongful act

One who gains a thing by fraud, accident, mistake, undue influence, the violation of a trust, or
other wrongful act, is, unless he or she has some other and better right thereto, an involuntary
trustee of the thing gained, for the benefit of the person who would otherwise have had it.

CREDIT(S)

(Added by Stats.1986, c. 820, § 8, eff. Sept. 15, 1986, operative July 1, 1987.)

LAW REVISION COMMISSION COMMENTS

Section 2224 continues former Section 2224 without change. See also Prob. Code § 15003
(constructive and resulting trusts unaffected by new Trust Law). [18 Cal.L.Rev.Comm. Reports
501 (1986) ].

HISTORICAL AND STATUTORY NOTES

2010 Electronic Update

Former Notes

Former § 2224 was repealed by Stats.1986, c. 820, § 7, operative July 1, 1987. For disposition,
see table preceding Civil Code § 2215.

Derivation

Former § 2224, enacted 1872.

CROSS REFERENCES

Actual and constructive fraud defined under contract law, see Civil Code §§ 1572, 1573.

Influence to obtain advantage from beneficiary, see Probate Code § 16004.

Rights of trustees, involuntary trustee as lacking, see Civil Code § 2275.

LAW REVIEW AND JOURNAL COMMENTARIES

Breach of oral agreement to divide realty purchased as giving rise to constructive trust. 22
Cal.St.B.J. 454 (1947).

Confidential relation between parties as basis for constructive trust. 13 Cal. L. Rev. 174, 176
(1925).

Constructive and resulting trusts distinguished. 19 Cal. L. Rev. 70 (1930).

Constructive trust, grantor's remedies for breach of invalid promise to reconvey. 40 Cal. L. Rev.
621 (1953).

Constructive trust arising from breach of grantee's oral promise to hold for grantor. 13 Cal. L.
Rev. 174 (1925).

Constructive trusts based on fraud. 16 Cal. L. Rev. 19 (1927).

Creation of an express or constructive trust by contract for joint bank account. 29 Cal. L. Rev. 90
(1940).

Devise of property in reliance upon agreement of devisee to hold it in trust or convey it to third
person. 20 Cal.St.B.J. 423 (1945).

Effect of bankruptcy on homestead which is subject to claim of defrauded creditor. 45 S. Cal. L.

Rev. 914 (1972).

Enforcement of constructive trust against grantee for breach of oral promise to reconvey realty
at request of grantor. 40 Cal. L. Rev. 621 (1952).

Enforcing constructive trusts based on oral promise to convey to third party. 24 Cal. L. Rev. 609
(1936).

Felonious heir in California. Nelson H. Wild, 49 Cal.St.B.J. 528 (1974).

Liability of life insurer to beneficiary convicted of manslaughter of insured. 26 S. Cal. L. Rev. 333
(1953).

Middleman escrows as a mecca for judgment creditors. 11 Santa Clara L. Rev. 484 (1971).

Misappropriation of funds by fiduciaries and liability of bank. 6 Cal. L. Rev. 171 (1918).

Necessity for unjust enrichment in a constructive trust in California: Elliott v. Elliott. 19 Hastings
L.J. 1268 (1968).

Necessity of segregation of trust fund. 4 Cal. L. Rev. 510 (1916).

Necessity of segregation of trust fund in determining whether trust was declared. 4 Cal. L. Rev.
167 (1916).

Observations on the state, etc., of the California Laws of Uses and Trusts. Orrin B. Evans, 28 S.
Cal. L. Rev. 111 (1955).

Part performance of oral contract raising constructive or resulting trust. 19 Cal. L. Rev. 70
(1930).

Purchaser's rights in the middleman escrow. 22 Hastings L.J. 1390 (1971).

Recent developments in tentative trust doctrine in California. 28 Cal. L. Rev. 202 (1940).

Running of a statute of limitations against enforcement of a voluntary constructive trust. 12 Cal.

L. Rev. 244 (1924).

Statute of frauds, exception in case of constructive trust, confidential or fiduciary relationship as

element of constructive trust. 36 Cal. L. Rev. 494 (1947).

Tortfeasor's profits--A brief survey. Graham Douthwaite, 19 Hastings L.J. 1071 (1968).

LIBRARY REFERENCES

1985 Main Volume

Criminal Law 1220.

Trusts 95 to 105.
C.J.S. Criminal Law § 2007.
C.J.S. Trusts §§ 146 to 153.

RESEARCH REFERENCES

ALR Library

17 ALR, Federal 2nd Series 33. Who is Acting in “Fiduciary Capacity” Within Meaning of Fraud or
Defalcation Discharge Exception in Bankruptcy (11 U.S.C.A. S523(A)(4))--Fiduciary Capacity of
Debtors Other Than Sales, Purchasing, or Leasing Agent...

3 ALR 5th 590, What Constitutes Contest or Attempt to Defeat Will Within Provision Thereof
Forfeiting Share of Contesting Beneficiary.

5 ALR 5th 132, Computation of Net “Loss” for Which Fidelity Insurer is Liable.

121 ALR 12, Right to Abandon and Effect of Abandonment of Eminent Domain Proceedings.

Encyclopedias

Cal. Jur. 3d Criminal Law: Crimes Against Justice § 168, Third Party Claim to Seized Property--
Standing of Claimant.

CA Jur. 3d Family Law § 122, Resulting and Constructive Trusts; Equitable Liens.
CA Jur. 3d Intestate Succession § 61, Killer of Decedent.

CA Jur. 3d Logs and Timber § 17, Liens.

CA Jur. 3d Monopolies and Restraints of Trade § 80, Summary Judgment.

CA Jur. 3d Trusts § 2, Classification.

CA Jur. 3d Trusts § 343, Trust as Remedy Against Unjust Enrichment.

CA Jur. 3d Trusts § 347, Generally; Statutory Grounds.

CA Jur. 3d Trusts § 353, Mistake.

CA Jur. 3d Trusts § 365, Agreement With Transferor to Hold for or Convey to Third Person.

Cal. Civ. Prac. Family Law Litigation § 20:33, Resulting and Constructive Trusts; Equitable Liens.

Cal. Civ. Prac. Family Law Litigation § 5:105, Additional Remedies.

Cal. Civ. Prac. Probate & Trust Proceedings § 24:9, Constructive Trusts.

Forms

West's California Code Forms, Civil § 2224 Form 1, Complaint--Establishing Involuntary Trust--
Wrongful Act.

Treatises and Practice Aids

Bogert - The Law of Trusts and Trustees § 471, Definition of Constructive Trusts.

2 California Affirmative Defenses 2d § 40:1, Mistake--In General.

2 California Affirmative Defenses 2d § 45:9, Resulting Trust Actions.

Cal. Common Interest Devs.: Law and Practice § 21:115, Restitution.

California Community Property Law § 13:63, The Murderer-Beneficiary Rule.

Rutter, Cal. Practice Guide: Enforcing Judgments/Debts Ch. 3-C, C. Prelawsuit Considerations.

Rutter, Cal. Practice Guide: Family Law Ch. 20-A, A. Nonmarital “Marvin” Cohabitation
Relationships.

Rutter, Cal. Practice Guide: Insurance Litigation Ch. 6C-A, A. Life Insurance.

Miller and Starr California Real Estate § 10:31, Other Situations.

Miller and Starr California Real Estate § 34:114, Constructive Trusts.

Miller and Starr California Real Estate § 34:115, Requirements to Enforce the Trust.

Restatement (3d) of Restitution § 55, Constructive Trust.

13 Witkin, California Summary 10th Trusts § 319, Nature of Constructive Trust.

13 Witkin, California Summary 10th Trusts § 323, (S 323) Where No Benefit is Obtained.

NOTES OF DECISIONS

I. GENERALLY 1-80
II. FRAUD 81-180
III. UNDUE INFLUENCE 181-240
IV. VIOLATION OF TRUST 241-320
V. ACCIDENT, MISTAKE, NEGLIGENCE AND OTHER WRONGFUL ACT 321-340

I. GENERALLY

<Subdivision Index>

In general 1
Adequacy of remedies 21
Amendment of pleadings 25
Assignment 10
Bankrupt as involuntary trustee 11
Better right to thing 5
Burden of proof 29
Civil actions 22
Community of interest, persons with 12
Community property 13
Considerations without constructive trust consequences 20
Construction with other laws 2
Constructive and testamentary trusts beneficiaries distinguished 7
Enhanced value 19
Estoppel 28
Evidence 30
Factors 4.5
Failure of express trusts 8
Foreign probate proceedings 14
Judgment or decree 31
Lien 15
Limitations and laches 26
Necessary conditions 4
Particular involuntary trusts 32
Parties 23
Pleadings 24
Public policy 3
Purchase money resulting trust 9.5
Purpose 3.5
Restoration of benefits received 27
Resulting trusts 9
Review 33
Situs of trust res 6
Specific performance of contract 16
Standing 23.5
Statute of frauds 17
Summary judgment 31.5
Taxes 18
Tracing funds 30.5
Transfer of trust 14.5
Unclean hands 28.5
Running of statute limiting enforcement of constructive trusts, see Notes of Decisions under Code
of Civil Procedure § 343.

Judgment for possession, see Notes of Decisions under § 3375 et seq.

Co-tenants, prohibited from taking advantage of defects in common title by purchasing adverse
claim and asserting it against his co-owners, see Notes of Decisions under § 685; Code of Civil
Procedure § 725a.

1. In general

To create a constructive or involuntary trust only three conditions are necessary: existence of a
res, i.e. property or some interest in property, plaintiff's right to that res and defendant's gain of
the res by fraud, accident, mistake, undue influence, violation of the trust or other wrongful act.
Kraus v. Willow Park Public Golf Course (1977) 140 Cal.Rptr. 744, 73 Cal.App.3d 354; Cramer v.
Biddison (1968) 65 Cal.Rptr. 624, 257 Cal.App.2d 720.

Under California law, constructive trust is equitable remedy imposed where defendant holds title
or some interest in certain property which it is inequitable for him to enjoy as against plaintiff.
Emard v. Hughes Aircraft Co., C.A.9 (Cal.)1998, 153 F.3d 949, certiorari denied 119 S.Ct. 903,
525 U.S. 1122, 142 L.Ed.2d 902. Trusts 91

Under California law, constructive trust may be imposed on property as remedy for things
wrongfully detained or for things gained by fraud, accident, mistake, undue influence, violation of
a trust, or other wrongful act. In re Advent Management Corp., C.A.9 (Cal.)1997, 104 F.3d 293.
Trusts 91

Under California law, a “constructive trust” is not a true trust but an equitable remedy available
to a plaintiff seeking recovery of specific property in a number of widely differing situations; the
cause of action is not based on the establishment of a trust, but consists of the fraud, breach of
fiduciary duty, or other act that entitles the plaintiff to some relief, and that relief, in a proper
case, may be to make the defendant a constructive trustee with a duty to transfer to the
plaintiff. Kenneally v. Bank of Nova Scotia, S.D.Cal.2010, 2010 WL 1734955. Trusts 91

Constructive trust is equitable remedy imposed to prevent unjust enrichment. In re Advent

Management Corp., 9th Cir.BAP (Cal.)1995, 178 B.R. 480, affirmed 104 F.3d 293. Trusts 91

Constructive trust is not same kind of interest in property as joint tenancy or remainder;
constructive trust is remedy, and as such, it is inchoate until its existence is established by court
order. In re Advent Management Corp., 9th Cir.BAP (Cal.)1995, 178 B.R. 480, affirmed 104 F.3d
293. Trusts 91

Constructive trust can only be established by litigation, and litigation must be successful before
property right stemming from constructive trust is absolute. In re Advent Management Corp.,
9th Cir.BAP (Cal.)1995, 178 B.R. 480, affirmed 104 F.3d 293. Trusts 91

Lessor who had obtained judgment against lessee for unpaid rent was not “person who would
otherwise have had” sale proceeds of property of lessee, within meaning of California statute
providing that one who gains things by fraud in violation of trust, or other wrongful act is
involuntary trustee of thing gained for benefit of person who would otherwise have had it, and
thus, lessor was not entitled to constructive trust on sale proceeds under California statute. In re
Sexton, Bkrtcy.N.D.Cal.1994, 166 B.R. 421. Trusts 95

Under California law, only equitable owner of trust res may obtain constructive trust, not creditor
of equitable owner. In re Sexton, Bkrtcy.N.D.Cal.1994, 166 B.R. 421. Trusts 347

Under California law, lessor of property who had obtained judgment against lessee for unpaid
rent was not entitled to claim sale proceeds of lessee's property pursuant to constructive trust
from bank account of controlling shareholders of lessee, where lessor was not equitable owner of
sale proceeds but was creditor of equitable owner and lessee was not entitled to constructive
trust due to unclean hands. In re Sexton, Bkrtcy.N.D.Cal.1994, 166 B.R. 421. Trusts 91

The essence of the theory of constructive trust is to prevent unjust enrichment and to prevent a
person from taking advantage of his or her own wrongdoing. PCO, Inc. v. Christensen, Miller,
Fink, Jacobs, Glaser, Weil & Shapiro, LLP (App. 2 Dist. 2007) 58 Cal.Rptr.3d 516, 150
Cal.App.4th 384. Trusts 91

A “constructive trust” is an involuntary equitable trust created by operation of law as a remedy

to compel the transfer of property from the person wrongfully holding it to the rightful owner.
PCO, Inc. v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP (App. 2 Dist. 2007) 58
Cal.Rptr.3d 516, 150 Cal.App.4th 384. Trusts 91

A constructive trust is an equitable remedy, not a substantive claim for relief. PCO, Inc. v.
Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP (App. 2 Dist. 2007) 58 Cal.Rptr.3d
516, 150 Cal.App.4th 384. Trusts 91

“Constructive trust” is involuntary equitable trust created by operation of law as remedy to

compel transfer of property from person wrongfully holding it to rightful owner. Communist Party
v. 522 Valencia, Inc. (App. 1 Dist. 1995) 41 Cal.Rptr.2d 618, 35 Cal.App.4th 980, rehearing
denied, review denied. Trusts 91

Imposition of constructive trust requires: res; right of complaining party to that res; and some
wrongful acquisition or detention of the res by another party who is not entitled to it. Communist
Party v. 522 Valencia, Inc. (App. 1 Dist. 1995) 41 Cal.Rptr.2d 618, 35 Cal.App.4th 980,
rehearing denied, review denied. Trusts 91

For every legal wrong there is a remedy and injured party should be compensated for all damage
proximately caused by wrongdoer unless departure from basic principle is mandated by
legislative exception or by strong public policy. Barbara A. v. John G. (App. 1 Dist. 1983) 193
Cal.Rptr. 422, 145 Cal.App.3d 369. Damages 15

“Constructive trust” is equitable remedy to prevent unjust enrichment and enforce restitution,
under which one who wrongfully acquires property of another holds it involuntarily as
constructive trustee, and trust extends to property acquired in exchange for that wrongfully
taken. Coppinger v. Superior Court of Orange County (App. 4 Dist. 1982) 185 Cal.Rptr. 24, 134
Cal.App.3d 883. Trusts 91

When one acquires proceeds from sale of property belonging to another, imposition of
constructive trust on proceeds is proper remedy. A & M Records, Inc. v. Heilman (App. 2 Dist.
1977) 142 Cal.Rptr. 390, 75 Cal.App.3d 554, 198 U.S.P.Q. 425, appeal dismissed, certiorari
denied 98 S.Ct. 3063, 436 U.S. 952, 57 L.Ed.2d 1118, 198 U.S.P.Q. 640, rehearing denied 99
S.Ct. 228, 439 U.S. 884, 58 L.Ed.2d 198. Trusts 95

A “constructive trust” is an equitable remedy imposed where defendant holds title or some
interest in certain property which it is inequitable for him to enjoy as against the plaintiff. Kraus
v. Willow Park Public Golf Course (App. 1 Dist. 1977) 140 Cal.Rptr. 744, 73 Cal.App.3d 354.
Trusts 91

A constructive trust is a remedial device, primarily created to present unjust enrichment; equity
compels restoration to another of property to which the holder thereof is not justly entitled.
Kraus v. Willow Park Public Golf Course (App. 1 Dist. 1977) 140 Cal.Rptr. 744, 73 Cal.App.3d
354. Trusts 91

In view of fact that foreclosure of deed of trust held by savings and loan association on
corporation's ranch property would render moot any claim of right of former stockholders of
corporation to have validity of deed determined, and stockholders sought to have deed set aside
as fraudulent conveyance and to have constructive trust in assets of corporation declared,
foreclosure pending trial would cause irreparable injury and granting of preliminary injunction
against foreclosure was not abuse of discretion. Weingand v. Atlantic Sav. & Loan Ass'n (1970)
83 Cal.Rptr. 650, 1 Cal.3d 806, 464 P.2d 106. Corporations 481

If vendors, who falsely represented to purchaser that house was built on unfilled land, had
settled with and paid purchaser full purchase price of property, beneficiary of deed of trust would
be entitled to impose constructive trust to extent of its debt on such settlement on theory that
vendors had mistakenly paid money to purchaser that properly should have been paid to
beneficiary. American Sav. & Loan Ass'n v. Leeds (1968) 68 Cal.Rptr. 453, 68 Cal.2d 611, 440
P.2d 933. Trusts 95

Where son of husband who killed his wife and then committed suicide would, absent the killing
and absent change of will or wills, have taken wife's separate property either by will of wife or
husband, depending on which survived, he was “the person who would otherwise have had it”
within this section and was beneficiary of constructive trust to which property was subject while
in husband's estate. Whitfield v. Flaherty (App. 4 Dist. 1964) 39 Cal.Rptr. 857, 228 Cal.App.2d
753. Trusts 124

Wrongdoer acquiring title to property through fraud, undue influence, breach of trust, or other
improper manner may be declared constructive trustee thereof for benefit of rightful owner.
Security First Nat. Bank v. Ross (App. 4 Dist. 1963) 29 Cal.Rptr. 538, 214 Cal.App.2d 424.
Trusts 95

Element of fraud, accident, mistake, undue influence, violation of a trust, or other wrongful act is
a prerequisite to creation of constructive trust. Dini v. Dini (App. 1 Dist. 1961) 10 Cal.Rptr. 570,
188 Cal.App.2d 506. Trusts 91

A constructive trust is a remedial device, primarily created to prevent unjust enrichment, and is
imposed not because of intention of parties but because person holding property would profit by
his own wrong. Clark v. Pullins (App. 1959) 171 Cal.App.2d 703, 341 P.2d 73. Trusts 91
Where sister had been in undisputed ownership of land for more than five years, and her deed to
brother was procured by brother's threats and sister's fear induced thereby, deed was properly
canceled by court and it was not necessary that it be determined who was real owner, of
property, in absence of son's showing some other and better right in himself than the legal title
acquired by his wrongful act. Jue v. San Tong Jue (App. 1958) 163 Cal.App.2d 231, 329 P.2d
560. Deeds 71

Agent, who has duty to take title to property for or in name of his principal, and who takes it for
himself, holds under a constructive trust. South v. Wishard (App. 1956) 146 Cal.App.2d 276, 303
P.2d 805. Trusts 101

Theory of the constructive trust was adopted by equity as a remedy to compel one to restore
property to which he is not justly entitled to another, and a constructive trust is imposed, not
because of intention of parties, but because person holding title to the property, would profit by
a wrong or would be unjustly enriched if he were permitted to keep the property. Monica v.
Pelicas (App. 1955) 131 Cal.App.2d 700, 281 P.2d 269.

Acceptance of realty by grantor's stepson and wife without payment of consideration, knowing he
was obligated and required to reconvey said realty upon demand, created at least an implied
promise to reconvey. McMillen v. McDonald (App. 1 Dist. 1954) 127 Cal.App.2d 302, 273 P.2d
683. Trusts 96

Statutory provisions relating to the fiduciary duty owed by trustee to beneficiary of trust are
broad enough to encompass not only individual transactions between trustee and beneficiary or
misappropriations of trust property for trustee's own purposes, but also other forms of activity or
patterns of behavior during stewardship of trust which bespeak an attitude adverse to
beneficiary's interests. Kenny v. Citizens Nat. Trust & Savings Bank of Los Angeles (App. 2 Dist.
1954) 269 P.2d 641, hearing granted, dismissed.

A “constructive trust” may be imposed when a party acquires property, to which he is not justly
entitled, by actual fraud, mistake, or violation of fiduciary or confidential relationship. Mazzera v.
Wolf (1947) 30 Cal.2d 531, 183 P.2d 649. Trusts 91

To establish a constructive trust based on fraud or wrongdoing, an oral promise is sufficient, and
the existence or absence of a confidential relationship between the parties, in the strict sense, is
not controlling. Rankin v. Satir (App. 1946) 75 Cal.App.2d 691, 171 P.2d 78. Trusts 91

Where oral trust in favor of transferor of land or oral agreement to reconvey land to transferor
are unenforceable under statute of frauds, and transferee refuses to perform trust or agreement,
a “constructive trust” arises if transfer was procured by fraud, misrepresentation, duress, undue
influence or mistake entitling transferor to restitution, if confidential relation existed or if transfer
was made as security for an indebtedness of transferor. Steinberger v. Steinberger (App. 1943)
60 Cal.App.2d 116, 140 P.2d 31. Trusts 94

A “constructive trust”, unlike an “express trust” or “resulting trust”, is remedial in character.

Sampson v. Bruder (App. 2 Dist. 1941) 47 Cal.App.2d 431, 118 P.2d 28. Trusts 1; Trusts
62; Trusts 91
Where owner of property transfers it, being induced by fraud, duress or undue influence of
transferee, the transferee holds property upon a “constructive trust” for transferor. Sampson v.
Bruder (App. 2 Dist. 1941) 47 Cal.App.2d 431, 118 P.2d 28. Trusts 95

In action to establish trust arising by operation of law, findings as to duration of trust and
interest of beneficiary and duties of trustee were unnecessary. Prussing v. Bates (App. 4 Dist.
1941) 46 Cal.App.2d 347, 115 P.2d 854. Trusts 373

A “constructive trust” is one of those designated by this section as involuntary trusts arising by
reason of fact that party sought to be charged with a trust has gained something by fraud,
accident, mistake, undue influence, the violation of a trust, or other wrongful act. Smith v. Bliss
(App. 1 Dist. 1941) 44 Cal.App.2d 171, 112 P.2d 30. Trusts 91

An “involuntary trust” must be predicated on acquisition of property which is impressed with a

trust knowing that it is so impressed, or upon wrongful acquisition of trust res under such
circumstances that equitable principles create a trust. Cook v. Cook (1941) 17 Cal.2d 639, 111
P.2d 322. Trusts 95

The theory of a “constructive trust” is adopted by equity as a remedy to compel one to restore
property to which he is not justly entitled to another. Bainbridge v. Stoner (1940) 16 Cal.2d 423,
106 P.2d 423. Trusts 91

Under a “constructive trust,” trustee is not charged with responsibility based upon either actual
or presumed intention of parties. Bainbridge v. Stoner (1940) 16 Cal.2d 423, 106 P.2d 423.
Trusts 91

Under a “constructive trust”, person holding property may have acquired it through fraud, undue
influence, breach of trust, or in any other improper manner, and the one whose property has
been taken from him is not relegated to a personal claim against wrongdoer, which might have
to be shared with other creditors of wrongdoer, but is given right to a restoration of property
itself. Bainbridge v. Stoner (1940) 16 Cal.2d 423, 106 P.2d 423. Trusts 95

Constructive trust is created when person taking property cannot hold it without violating some
principle of equity. McMillen v. Olmsted (App. 1 Dist. 1927) 85 Cal.App. 656, 259 P. 1104. Trusts
91

2. Construction with other laws

Sections 847 (repealed 1929), 857 (repealed 1929), related to express trusts only, and did not
preclude the establishment and enforcement of a constructive trust for a grantee's refusal to
perform a parol agreement to convey part of the property conveyed to her to plaintiffs. Lauricella
v. Lauricella (1911) 161 Cal. 61, 118 P. 430.

3. Public policy

The enforcement of a constructive trust is not against public policy, where the effect is to
indirectly carry out a parol trust to convey land. Lauricella v. Lauricella (1911) 161 Cal. 61, 118
P. 430. Trusts 96
3.5. Purpose, generally

Constructive trust's purpose under California law is to prevent person from taking advantage of
his own wrongdoing. Murphy v. T. Rowe Price Prime Reserve Fund, Inc., C.A.9 (Cal.)1993, 8 F.3d
1420. Trusts 91

“Constructive trust” is involuntary equitable trust created by operation of law as remedy to

compel transfer of property from person wrongfully holding it to rightful owner. Campbell v.
Superior Court (App. 4 Dist. 2005) 34 Cal.Rptr.3d 68, 132 Cal.App.4th 904, review denied.
Trusts 91

4. Necessary conditions, generally

To succeed on constructive trust claim under California law, plaintiff must demonstrate that
defendant was unjustly enriched by virtue of mistake, making it wrongful for defendant to keep
money. Murphy v. T. Rowe Price Prime Reserve Fund, Inc., C.A.9 (Cal.)1993, 8 F.3d 1420. Trusts
91

Imposition of constructive trust under California law requires: (1) existence of res; (2) right of
complaining party to that res; and (3) some wrongful acquisition or detention of res by another
party who is not entitled to it. In re Real Estate Associates Ltd. Partnership Litigation,
C.D.Cal.2002, 223 F.Supp.2d 1109. Trusts 91

In order to create a constructive or involuntary trust, as defined in this section, no conditions

other than those stated in this section are necessary. Rankin v. Satir (App. 1946) 75 Cal.App.2d
691, 171 P.2d 78. Trusts 91

Where defendant purchased a lot in controversy in his own name, in violation of an agreement to
purchase as the property of a firm of which plaintiff and defendant were members, and refused
to recognize plaintiff's interest in the property, plaintiff was not bound to make a formal tender
of one-half of the purchase price as a condition precedent to his right to enforce a trust in the
property. Koyer v. Willmon (1907) 150 Cal. 785, 90 P. 135. Trusts 361

4.5. Elements

Under California law, imposition of a constructive trust requires: (1) the existence of res, i.e.,
property or some interest in property; (2) the right of the complaining party to that res; and (3)
some wrongful acquisition or detention of the res by another party who is not entitled to it.
Cassirer v. Kingdom of Spain, C.D.Cal.2006, 461 F.Supp.2d 1157, affirmed in part, reversed in
part 580 F.3d 1048, rehearing en banc granted 590 F.3d 981. Trusts 91

5. Better right to thing

Where one party has acquired legal title to property to which another has a better right, a court
of equity will convert him into a “trustee” of the true owner, and compel him to convey the legal
title. Meader v. Norton, U.S.Cal.1870, 78 U.S. 442, 20 L.Ed. 184, 11 Wall. 442. Trusts 91

6. Situs of trust res

A creditor of a defendant, who has attempted to attach funds of such defendant by a notice of
garnishment, in a state which such funds are neither situated nor payable, is not a necessary
party to a suit to establish a trust in such funds. Shainwald v. Davids, N.D.Cal.1895, 69 F. 687.
Trusts 366(1)

Where all the funds arising out of settlement of client's personal injury action against insured
were paid by insurer to the client, there was no identifiable res in the hands of the insurer so
that attorney, who had been given a lien by the client on client's recovery, could not maintain
action against the insurer on theory that the insurer was a constructive trustee. Siciliano v.
Fireman's Fund Ins. Co. (App. 2 Dist. 1976) 133 Cal.Rptr. 376, 62 Cal.App.3d 745. Trusts 91

7. Constructive and testamentary trusts beneficiaries distinguished

A “constructive trust” is an equitable remedy to compel a person who has property to which he is
not justly entitled to transfer it to the person entitled thereto. Weiss v. Marcus (App. 2 Dist.
1975) 124 Cal.Rptr. 297, 51 Cal.App.3d 590. Trusts 91

The distinction between the position of the beneficiary of a testamentary trust and the position of
the beneficiary of a constructive trust under an agreement between a testator and his devisee
that devisee will hold the property devised as trustee is that the interest of a beneficiary of a
constructive trust does not arise under the will or laws of intestate succession. In re Loring's
Estate (1946) 29 Cal.2d 423, 175 P.2d 524. Trusts 96

8. Failure of express trusts

Where voluntary trust which testatrix sought to create failed, but it appeared that testatrix did
not intend to bequeath the subject matter thereof to trustee absolutely, a constructive trust
arose when the property was distributed to trustee. Sears v. Rule (1945) 27 Cal.2d 131, 163
P.2d 443, certiorari denied 66 S.Ct. 1022, 328 U.S. 843, 90 L.Ed. 1617. Trusts 96

Where attempt is made to create trust, and basic elements of intent, purpose and subject matter
are present, but trust is unenforceable because of statute of frauds or some other invalidating
cause, trustee cannot keep the property individually but will be declared a constructive trustee.
In re Gaines' Estate (1940) 15 Cal.2d 255, 100 P.2d 1055. Trusts 94

Where the trustee orally agreed to carry out a trust and to make a written declaration thereof, a
constructive trust enforceable in equity arose, although the oral trust was void. Willats v.
Bosworth (App. 1917) 33 Cal.App. 710, 166 P. 357. Trusts 96

9. Resulting trusts

Under California law, “resulting trust” is judicial recognition that parties' relationship is and was
always intended to be that of trustee and beneficiary, not debtor and creditor, and for that
reason, property subject to resulting trust never belongs to titleholder, and does not become
property of the estate if titleholder files for bankruptcy. In re Cedar Funding, Inc.,
Bkrtcy.N.D.Cal.2009, 408 B.R. 299. Bankruptcy 2543; Trusts 62

Under California law, a resulting trust arising from the purchase of property can be extinguished
by an oral conveyance or surrender of his interest by the beneficiary of the resulting trust to the
trustee. In re Cecconi, Bkrtcy.N.D.Cal.2007, 366 B.R. 83. Trusts 63.9
Under California law, a resulting trust ordinarily arises in favor of the payor of the purchase price
of the property where the purchase price, or a part thereof, is paid by one person and the title is
taken in the name of another; the trust arises because it is the natural presumption in such a
case that it was their intention that the ostensible purchaser should acquire and hold the
property for the one with whose means it was acquired. In re Cecconi, Bkrtcy.N.D.Cal.2007, 366
B.R. 83. Trusts 72

Under California law, a resulting trust arises by operation of law from a transfer of property
under circumstances showing that the transferee was not intended to take the beneficial interest.
In re Cecconi, Bkrtcy.N.D.Cal.2007, 366 B.R. 83. Trusts 63.9

Judgment creditor's allegations, that judgment debtor had transferred his interest in dwelling to
a third party with the intent to retain an equitable interest in the dwelling, were sufficient to
state a cause of action under theory of resulting trust, so as to allow creditor to attach judgment
lien to debtor's alleged equitable interest. Fidelity Nat. Title Ins. Co. v. Schroeder (App. 5 Dist.
2009) 101 Cal.Rptr.3d 854, 179 Cal.App.4th 834. Trusts 371(2)

A resulting trust arises by operation of law and does not implicate the personal liability of the
purported trustee; rather, the trustee's sole purpose is to hold or convey the property according
to the beneficiary's demands. In re Estate of Yool (App. 1 Dist. 2007) 60 Cal.Rptr.3d 526, 151
Cal.App.4th 867. Trusts 62; Trusts 136

In a resulting trust, the law implies an obligation on the part on the trustee in whom title to
property has vested to hold the property for the owner's benefit and eventually convey it to the
owner; the trustee has no duties to perform, no trust to administer, and no purpose to pursue
except the single purpose of holding or conveying the property according to the beneficiary's
demands. In re Estate of Yool (App. 1 Dist. 2007) 60 Cal.Rptr.3d 526, 151 Cal.App.4th 867.
Trusts 136

Ordinarily a resulting trust arises in favor of the payor of the purchase price of the property
where the purchase price, or a part thereof, is paid by one person and the title is taken in the
name of another; the trust arises because it is the natural presumption in such a case that it was
their intention that the ostensible purchaser should acquire and hold the property for the one
with whose means it was acquired. In re Estate of Yool (App. 1 Dist. 2007) 60 Cal.Rptr.3d 526,
151 Cal.App.4th 867. Trusts 72; Trusts 86

A “resulting trust” arises by operation of law from a transfer of property under circumstances
showing that the transferee was not intended to take the beneficial interest; such a resulting
trust carries out and enforces the inferred intent of the parties. In re Estate of Yool (App. 1 Dist.
2007) 60 Cal.Rptr.3d 526, 151 Cal.App.4th 867. Trusts 63.9

Settlement-resulting trust procedure by which insurer attempted to impose resulting trust upon
proceeds received by injured party was improper where stipulation signed by parties did not
constitute agreement or acquiescence in imposition of trust by injured party. American Motorists
Ins. Co. v. Cowan (App. 4 Dist. 1982) 179 Cal.Rptr. 747, 127 Cal.App.3d 875. Trusts 362

Where plaintiffs conveyed undivided one-half interest in property, except for life estate in part of
property, without consideration, without intending to convey beneficial interest, and without full
comprehension of nature of document they signed, transfer created resulting trust with plaintiffs
as beneficiaries. Lehmann v. Kamp (App. 5 Dist. 1969) 77 Cal.Rptr. 910, 273 Cal.App.2d 701.
Trusts 63.9

A remainderman's interest in land could not be considered held in a resulting trust for
remainderman on basis of provision in instrument creating a life estate to the effect that land
was purchased for account where loan in question was satisfied by grant of a life estate, and
instrument so recited. Haskell v. Wood (App. 3 Dist. 1967) 64 Cal.Rptr. 459, 256 Cal.App.2d
799. Trusts 72

Where aged father who was unable to refinance and prevent foreclosure executed quitclaim deed
to his son and daughter-in-law so that they might obtain loan and prevent foreclosure, and it
was understood that he would make payments on loan and that they would reconvey property if
he were still living at time loan was paid in full, father could compel reconveyance on theory of
either resulting or constructive trust. Novak v. Novak (App. 2 Dist. 1967) 57 Cal.Rptr. 564, 249
Cal.App.2d 438. Trusts 81(4); Trusts 103(2)

In action to establish resulting trust, evidence was sufficient to support findings that son and his
mother together owned and operated a dairy on the real estate and that they possessed
livestock thereon and that mother conveyed her interests in realty to son on condition that he
hold realty in trust for himself and mother's other heirs and to distribute to her heirs at the time
that two of her grandchildren reached their majority. Teixeira v. Domingos (App. 1959) 171
Cal.App.2d 196, 339 P.2d 863. Trusts 110

Where parties living together as man and wife purchased property jointly, each paying one-half
of purchase price, and trustees, to whom property had been conveyed as security for payment of
purchase-money note, reconveyed property by deed designating defendant as grantee and
reciting that estate was conveyed to defendant as her separate property, and such recital was
inserted without plaintiff's knowledge, and defendant subsequently refused to convey to plaintiff
one-half of the property, a “resulting trust”, rather than a “constructive trust”, existed in
plaintiff's favor. Padilla v. Padilla (App. 1 Dist. 1940) 38 Cal.App.2d 319, 100 P.2d 1093. Trusts
79; Trusts 102(1)

9.5. Purchase money resulting trust

In case ancillary to insolvency proceedings in the United Kingdom, under California law, debtor's
nondebtor wife did not eliminate her purchase money resulting trust in California real property
by placing the property into an express trust; there was no evidence that wife's execution of the
residential trust was an agreement to a different trust from what would have been implied by
law, the evidence showed that the property was held as a purchase money resulting trust for
wife's benefit prior to execution of the residential trust, and wife's execution of the residential
trust did not transmute her full beneficial interest in the property. In re Cecconi,
Bkrtcy.N.D.Cal.2007, 366 B.R. 83. Trusts 63.9

In case ancillary to insolvency proceedings in the United Kingdom, under California law, debtor's
nondebtor wife did not extinguish the purchase money resulting trust that she held with respect
to California real property by obtaining a joint mortgage on the property; wife's, not debtor's,
financial statements were used to obtain the joint mortgage, the property was not community
property simply because debtor's name was on the title, and, while the joint mortgage did
reimburse wife for her separate funds which she had used for the initial purchase price and all
improvements to the property, wife merely exchanged her separate funds for a mortgage which
she repaid from her own funds. In re Cecconi, Bkrtcy.N.D.Cal.2007, 366 B.R. 83. Bankruptcy
2341

Under California law, a “purchase money resulting trust” arises when another's name is placed
on legal title but that entity is not intended to hold a beneficial interest in the property. In re
Cecconi, Bkrtcy.N.D.Cal.2007, 366 B.R. 83. Trusts 72

10. Assignment

Where corporate defendant's predecessor in interest assigned to plaintiff for an indebtedness a

royalty interest of 3 per cent of the gross total of oil and gas produced from a particular well, the
assignment constituted defendant a “trustee” of the funds derived from the sale of oil and gas,
and plaintiff was entitled to rely on the belief that defendant as its trustee was faithfully
performing its services under the assignment until the contrary appeared. Heaston & Glimpse v.
West American Oil Co. (App. 1941) 44 Cal.App.2d 107, 111 P.2d 905. Trusts 101

Where life tenant, who was entitled to net income from trust property and who, although not a
trustee, was permitted to manage trust property, assigned, as security for life tenant's
obligations, leases to a bank, a stranger to trust, which life tenant, as lessor, had outstanding on
trust property, and bank accepted leases in good faith and without knowledge of legal status of
property described therein, and bank did not undertake to act as a trustee under trust, bank did
not, by reason of assignment, become a “constructive trustee” and was not liable to
remaindermen for damages to trust corpus and alleged conversion of trust income. Church v.
Security-First Nat. Bank of Los Angeles (App. 2 Dist. 1940) 40 Cal.App.2d 529, 105 P.2d 148.
Trusts 104

In an action to impress a constructive trust upon an assigned contract of sale of an automobile

on the installment plan, finding was sufficient to negative the issue tendered by the answer that
the assignee purchased the car from the seller by an independent contract after it had
repudiated the original contract. Carter v. Holt (App. 1915) 28 Cal.App. 796, 154 P. 37. Trusts
373

11. Bankrupt as involuntary trustee

A bankrupt who had gained possession of money belonging to bankrupt estate became an
“involuntary bailee” or “trustee” thereof for which judgment should be entered in order to effect
a judicial sale of property thereafter found. Sampsell v. Gittelman (App. 2 Dist. 1942) 55
Cal.App.2d 208, 130 P.2d 486. Bankruptcy 2152.1; Trusts 95

12. Community of interest, persons with

Private benefit obtained by one of two parties interested together by mutual agreement renders
him trustee for benefit of both. McMillen v. Olmsted (App. 1 Dist. 1927) 85 Cal.App. 656, 259 P.
1104. Trusts 102(1)

Part owner of option, purchasing it without notice to co-owner, becomes trustee as to co-owner.
McMillen v. Olmsted (App. 1 Dist. 1927) 85 Cal.App. 656, 259 P. 1104. Trusts 102(1)

13. Community property

Judgment in second wife's divorce action, quieting her title to property as against husband, who
allegedly had fraudulently concealed purchase of the property with community funds when he
negotiated property settlement with first wife, was only step in execution of plan to deprive first
wife of property and did not bar action by her against second wife to declare a trust in the
property, and for an accounting. Flores v. Arroyo (1961) 15 Cal.Rptr. 87, 56 Cal.2d 492, 364
P.2d 263. Divorce 890

Under joint will converting joint tenancy property into community property, treasury department
regulations relating to inter vivos transfer of government bonds did not prevent transmutation of
series G bonds standing in the names of husband and wife as joint owners into community
property, and even if the regulations prevented a holding that title to the bonds was changed,
widow could be ordered to act so as to carry out her agreement. Chase v. Leiter (App. 1 Dist.
1950) 96 Cal.App.2d 439, 215 P.2d 756. United States 91; Wills 92

14. Foreign probate proceedings

Heirs of defendant's deceased wife were entitled to maintain a plea to have him declared a
constructive trustee of certain of the assets of her estate which he obtained by foreign probate
proceedings. Patterson v. Dickinson, 1912, 193 F. 328, 113 C.C.A. 252. Descent And Distribution
90(1); Trusts 95

14.5. Transfer of trust

Under California law, money fraudulently collected by fraudster was impressed with constructive
trust, and United States, in repatriating bank accounts in Liechtenstein controlled by fraudster,
acquired the money with same trust imposed. U.S. v. $4,224,958.57, C.A.9 (Cal.)2004, 392 F.3d
1002. Trusts 95

15. Lien

Under California law, while both resulting trusts and equitable liens by agreement arise out of
similar belief that equity can be used to fulfill intent of parties, they are two distinct concepts,
and their differences are critical, in bankruptcy context, in determining whether bankruptcy
policy of ratable distribution among creditors takes precedence. In re Cedar Funding, Inc.,
Bkrtcy.N.D.Cal.2009, 408 B.R. 299. Bankruptcy 2543; Bankruptcy 2572; Bankruptcy
3442.1; Liens 7; Trusts 62

Whether remedy for brewery corporation whose dominant stockholder had entered into contract
to sell certain assets to investment corporation which was also owned by dominant stockholder
to detriment of minority stockholders of brewery corporation, should be imposition of trust or
imposition of equitable lien or money judgment or combination of these remedies depended on
evidence that there was a profit and amount thereof and that profit could be traced into fund or
into specific properties either in whole or in part. Efron v. Kalmanovitz (App. 2 Dist. 1967) 57
Cal.Rptr. 248, 249 Cal.App.2d 187. Corporations 190; Liens 7; Trusts 374

It was within province of trial court in proceeding for forfeiture of automobile used to transport
marijuana to conclude that mother of registered owner who had tendered sum for purchase or
automobile with understanding that automobile would be registered in her name was in position
of such an owner and therefore not entitled to equitable lien. People v. One 1960 Ford
2DHTTHBD (App. 1 Dist. 1964) 39 Cal.Rptr. 636, 228 Cal.App.2d 571. Controlled Substances
186; Forfeitures 5

Lien of resulting trust attached as of date when plaintiffs paid purchase price for land conveyed
to defendants, and lien was converted into an equitable lien on date when defendants executed
memorandum, reciting that if plaintiffs were unable to pay balance still owing under contract for
construction of house defendants could sell property and return total amount paid under contract
to plaintiffs, and such lien continued thereafter to be impressed upon property, subject to
enforcement by foreclosure, and homestead, filed a few days prior to rendition of judgment
judicially recognizing equitable lien, would not take precedence over plaintiffs' lien. Holder v.
Williams (App. 1959) 167 Cal.App.2d 313, 334 P.2d 291. Liens 7

Decree imposing constructive trust upon realty was properly declared to be lien on realty as
security for satisfaction thereof. West v. Stainback (App. 2 Dist. 1952) 108 Cal.App.2d 806, 240
P.2d 366. Trusts 375(2)

In action, by promisee to impress constructive trust upon certain real property to effect
performance of oral promise of defendant's predecessor in interest to will to promisee equivalent
of estate of promisee's wife, wherein promisee was seeking to enforce by quasi specific
performance oral agreement to make will against defendant, who had wrongfully prevented
promisor from carrying out agreement, judgment awarding promisee $30,000 and imposing lien
as security for satisfaction thereof was proper. West v. Stainback (App. 2 Dist. 1952) 108
Cal.App.2d 806, 240 P.2d 366. Trusts 375(1)

Divorced wife was entitled to lien to extent of trust interest on realty purchased by former
husband. Harris v. Hensley (App. 2 Dist. 1927) 83 Cal.App. 283, 256 P. 832. Trusts 374

Neither at common law, nor under this section, may the court decree judgment for damages to
be an equitable lien upon specific property and direct its sale under execution to enforce such
lien, especially in view of C.C.P. former § 671. Westervelt v. McCullough (App. 2 Dist. 1924) 68
Cal.App. 198, 228 P. 734. Judgment 776

16. Specific performance of contract

Where father-in-law and daughter-in-law owned undivided interests in realty and father-in-law
executed conveyance to create joint tenancy, as any interest received by daughter-in-law
thereunder returned to the father-in-law on her death in his lifetime, a suit by his heirs to
establish title on the theory that there was a contract to vest entire title in two parties as joint
tenants was not a suit, under this section, to impress a trust on real estate secured from the
father-in-law, but rather, a suit for specific performance of an alleged contract to transfer an
interest in the real estate. Chamberland v. Whitney (App. 2 Dist. 1937) 19 Cal.App.2d 660, 66
P.2d 220. Specific Performance 102

17. Statute of frauds, generally

Agreement which is basis for a constructive trust action on ground of estoppel or resulting or
constructive trust does not have to be in writing. Dini v. Dini (App. 1 Dist. 1961) 10 Cal.Rptr.
570, 188 Cal.App.2d 506. Trusts 92.5
The statute of frauds does not apply where a constructive trust is imposed. Edwards v. Edwards
(App. 1 Dist. 1949) 90 Cal.App.2d 33, 202 P.2d 589. Trusts 92.5

Where plaintiff, acting as defendant's agent, took a contract for the purchase of realty in his own
name and later repudiated his fiduciary duty to hold the land for defendant, plaintiff became
“constructive trustee” of the equitable title to the property, and statute of frauds was not a bar
to recovery of land by defendant. Stromerson v. Averill (1943) 22 Cal.2d 808, 141 P.2d 732.
Trusts 101

18. Taxes

A mistake of law that causes erroneous computation of tax reimbursements and payment gives
rise to an involuntary trust. Decorative Carpets, Inc. v. State Bd. of Equalization (1962) 23
Cal.Rptr. 589, 58 Cal.2d 252, 373 P.2d 637. Trusts 91

Person involuntarily paying taxes, for which another is legally or equitably bound, may recover
amount paid from latter. Page v. Podol (App. 2 Dist. 1935) 4 Cal.App.2d 229, 41 P.2d 167.
Taxation 2768

19. Enhanced value

Obligor on fidelity bond, having reimbursed obligee for loss, was entitled by reason of right of its
subrogation to pursue remedy of constructive trust possessed by obligee with respect to property
acquired by obligee's employee with embezzled funds, and such remedy reached the enhanced
value of real property acquired by the embezzler to the extent that the enhanced value was
necessary to obligor's recoupment, despite contentions that obligation of surety was coextensive
with that of the employee as principal and that reaching the enhanced value of the real property
would unjustly enrich the embezzling employee by reducing the amount that surety could
recover from him. Haskel Engineering & Supply Co. v. Hartford Acc. & Indem. Co. (App. 2 Dist.
1978) 144 Cal.Rptr. 189, 78 Cal.App.3d 371. Insurance 3517

20. Considerations without constructive trust consequences

Judgment which failed to impress constructive trust on house in favor of woman against man
with whom she had lived for seven years was supported by findings, themselves supported by
evidence, that parties agreed that house belonged to man during his lifetime and woman
acquired no interest in it, that woman would pay man rent while she and her children lived with
him, that woman and children could live in house only so long as man and woman maintained
their relationship, that man contributed to support of woman and her children, enabling them to
enjoy standard of living superior to that which they experienced before residing with him in
house, and that his contributions were equal to, if not greater than, contributions to household
made by woman in form of services and money. Taylor v. Polackwich (App. 2 Dist. 1983) 194
Cal.Rptr. 8, 145 Cal.App.3d 1014. Trusts 110

Where remedy imposed for undervaluation of stock redeemed from nonmarital trust to meet that
trust's obligation to pay death taxes did not attach to shares in possession of the redeeming
corporation, where the original trust property was reposed, but to shares in the marital trust,
which was required to transfer shares to the nonmarital trust to adjust the undervaluation, the
remedy was not properly labeled a “constructive trust.” Copley v. Copley (App. 4 Dist. 1981) 178
Cal.Rptr. 842, 126 Cal.App.3d 248. Trusts 91
A mere violation of an unenforceable contract does not raise a constructive trust as to realty and
that a party promises to buy land for another and thereafter purchases it for himself with his own
money does not establish a basis for a constructive trust. Elliott v. Wood (App. 1 Dist. 1949) 95
Cal.App.2d 314, 212 P.2d 906. Trusts 96

In action for declaration that defendants held land in trust for plaintiff, evidence that plaintiff was
to receive land if he made certain payments which were only made in part sustained finding that
agreement was never consummated and sustained judgment against plaintiff. Eisenmenger v.
Eisenmenger (App. 1 Dist. 1943) 59 Cal.App.2d 536, 139 P.2d 63. Trusts 110

Chautauqua corporation having acquired both legal and beneficial title to funds paid by lessees of
lots in tract purchased by it, its subsequent dealings in relation to such funds gave rise to no
constructive trust for lessees. Simpson v. Gillis (1934) 1 Cal.2d 42, 32 P.2d 1071. Trusts 95

Where defendants agreed to deliver title to property exchanged with plaintiff free from $10,000
mortgage, which was nonexistent, defendants to get “present” crop worth less than $10,000,
nonexistence of mortgage authorized no relief for plaintiff, suing for accounting on theory of
constructive trust. Bird v. Thompson (1932) 215 Cal. 70, 8 P.2d 481. Trusts 95

Corporation from which officer obtained moneys advanced to another company cannot recover
amount on trust theory in action for money received. Live Oak Cemetery Ass'n v. Adamson
(Super. 1930) 106 Cal.App.Supp. 783, 288 P. 29. Implied And Constructive Contracts 71;
Trusts 352

Evidence showed no act by which persons to whom property had been conveyed by deed
absolute in form became involuntary trustees. Borton v. Joslin (App. 1 Dist. 1928) 88 Cal.App.
515, 263 P. 1033. Trusts 110

Though defendant purchased land, taking title thereto in his name and giving his note, secured
on the property, for the money he borrowed for the purchase, with an oral understanding with
plaintiff that he was merely to permit the use of his name for plaintiff's benefit, and thereafter
without objection saw plaintiff make payments on the note and improvements on the property,
no constructive trust arose in plaintiff's favor. Lincoln v. Chamberlain (App. 2 Dist. 1923) 61
Cal.App. 399, 214 P. 1013. Trusts 99

In an action to hold defendant, taking possession under a mortgage and other express authority,
liable as a trustee, evidence supported a court finding that defendant took possession of property
solely to protect his own interests, and that plaintiff received adequate compensation. Brittan v.
Fisher (App. 1917) 32 Cal.App. 616, 163 P. 874. Trusts 372(3)

Where plaintiff sold a fractional interest in a vessel to T. and received back an option to
repurchase, and T. sold the interest to defendant, who took with notice, defendant was not a
constructive trustee and in case of a sale to another was at most only liable to plaintiff in
damages. Young v. Matthew Turner Co. (1914) 168 Cal. 671, 143 P. 1029. Trusts 91

Where plaintiff verbally contracted with defendant to join him in the purchase of certain land
which defendant had contracted to purchase by a certain time and on plaintiff's failure to pay his
share of the money, defendant purchased the land in his own name, defendant could not be
compelled to convey half the land to plaintiff on the ground that there was a constructive trust in
favor of plaintiff. Taylor v. Kelly (1894) 103 Cal. 178, 37 P. 216. Trusts 99

Where plaintiff and defendant purchase land as tenants in common, and afterwards divide it,
conveying one to the other by deed absolute, but plaintiff receives less land than defendant, who
agrees to hold the excess in trust for plaintiff, no trust arises in favor of plaintiff, defendant
having gained possession by none of the wrongful means enumerated. Barr v. O'Donnell (1888)
76 Cal. 469, 18 P. 429, 9 Am.St.Rep. 242.

21. Adequacy of remedies

Count seeking recovery of $60,000 commission by real estate brokers, who had successfully
negotiated a lease of property from vendors to corporate purchaser, on theory that as result of
tortious, wrongful, and collusive action purchaser became unjustly enriched in amount of
commission by purchasing the land at less than fair market value by amount of the commission
was insufficient for lack of allegation of inadequacy of remedy at law and was also insufficient to
state common count whereby brokers waived interference with contract and sued in assumpsit.
Allen v. Powell (App. 1 Dist. 1967) 56 Cal.Rptr. 715, 248 Cal.App.2d 502. Brokers 82(1)

The remedy of imposition of constructive trust is equitable in nature, and plaintiff's remedy at
law must be inadequate. Allen v. Powell (App. 1 Dist. 1967) 56 Cal.Rptr. 715, 248 Cal.App.2d
502. Trusts 359(2)

Neither the remedy of an action at law for damages for breach of contract nor quasi-contractual
remedy for value of services rendered is adequate for breach of a contract to leave property by
will in exchange for services of a peculiar nature involving the assumption or continuation of a
close family relationship, and a suit to establish a constructive trust is not precluded on ground
that such other remedies are adequate. Monarco v. Lo Greco (1950) 35 Cal.2d 621, 220 P.2d
737. Trusts 359(3)

Where husband and wife entered into oral agreement with husband's stepson and wife's son that
if he would remain with them and work diligently in a family venture they would leave all of their
property to him except for small devises to his brother and sister, and husband and wife placed
all of their property in joint tenancy and executed wills in accordance with oral agreement, and
husband's stepson labored 20 years in accordance with oral agreement, but husband shortly
before his death terminated joint tenancies and executed a new will leaving all of his property to
his grandson, and probate court distributed property to grandson, and wife by cross-complaint
sought to have grandson declared a constructive trustee, rule that neither remedy of action at
law for damages for breach of contract nor quasi-contractual remedy for value of services
rendered is adequate for breach of contract to leave property by will, was applicable. Monarco v.
Lo Greco (1950) 35 Cal.2d 621, 220 P.2d 737. Trusts 359(3)

Allegations of complaint, which sought recovery against executor of plaintiff's deceased

employer, on theory of a constructive trust, showed that plaintiff had a remedy at law to sue for
compensation, and hence equity would not take jurisdiction of the action. Smith v. Bliss (App. 1
Dist. 1941) 44 Cal.App.2d 171, 112 P.2d 30. Trusts 371(1)

22. Civil actions

Where will unequivocally named two persons as legatees, thereby excluding extrinsic evidence
that testatrix intended in fact to make them trustees for benefit of nieces and nephews, an oral
agreement with testatrix by which such persons were to hold the property in trust could be
proved by extrinsic evidence and a constructive trust would arise in favor of such beneficiaries,
but such trust, if any, could not be established in probate court, but only by an independent
proceeding in equity. In re Sargavak's Estate (1953) 41 Cal.2d 314, 259 P.2d 897. Trusts 96

An independent action in equity would be necessary to develop a secret testamentary trust, and
such a trust could not be shown on an appeal from a decree of distribution. In re Purcell's Estate
(1914) 167 Cal. 176, 138 P. 704. Trusts 359(2)

Heirs of a testator seeking to establish a secret and invalid trust were required to bring an
independent action in equity against the trustee; the probate court having no jurisdiction. In re
Sharp's Estate (App. 1911) 17 Cal.App. 634, 120 P. 1079. Trusts 359(2)

23. Parties, generally

Under California law, creditor of nondebtor subsidiary's parent company had no right to seek
imposition of constructive trust, on subsidiary's behalf, on funds that had allegedly been
transferred from subsidiary to debtor and then to creditor; only subsidiary, as equitable owner of
trust res, could seek constructive trust. In re Advent Management Corp., C.A.9 (Cal.)1997, 104
F.3d 293. Trusts 347

Corporation, and not corporation's creditor, would be entitled to seek to establish constructive
trust in property conveyed by corporation to grantees who allegedly used corporate funds to pay
for property in violation of grantees' fiduciary duty to corporation. T W M Homes, Inc. v.
Atherwood Realty & Inv. Co. (App. 1 Dist. 1963) 29 Cal.Rptr. 887, 214 Cal.App.2d 826. Trusts
347

A corporation, to which land was conveyed on understanding that it would issue all of its stock to
grantors concurrently, became “constructive trustee” for grantors on total failure of consideration
for deed because of revocation of corporation's permit to issue stock before transfer thereof to
grantors, so that they were “real parties in interest” and “proper parties plaintiff” in suit to enjoin
trustee's sale under trust deed securing corporation's note for money subsequently borrowed by
it from bank. Hall v. Citizens Nat. Trust & Savings Bank of Los Angeles (App. 1 Dist. 1942) 53
Cal.App.2d 625, 128 P.2d 545. Mortgages 338; Trusts 94

Persons having common interest in establishing involuntary trust were properly named as
defendants, where they refused to join as plaintiffs. Apablasa v. Sepulveda (App. 1 Dist. 1928)
91 Cal.App. 232, 267 P. 105. Parties 35

Where an administrator was made, in the same action, a defendant in his representative
capacity, and in his personal capacity with others, plaintiffs being creditors of the estate whose
claims had been rejected, and the purpose of the action being to compel a transfer to the estate
of property which it was charged that his co-defendants and himself held on a constructive trust
for the estate, there was a misjoinder of parties defendant. Mesmer v. Jenkins (1882) 9 P.C.L.J.
730, 61 Cal. 151. Trusts 366(3)

23.5. Standing

Claimant and her husband were not the equitable owners of certain assets and real property in
their company, which were subject to government forfeiture, pursuant to a constructive trust
theory under California law, and thus claimant lacked standing to assert any claim in the
government forfeiture proceedings against the disputed assets and real property; the funds in
question had not been gained by any wrongful act, nor had the funds been wrongfully detained.
U.S. v. $3,124,977.28 in U.S. Currency, C.A.9 (Cal.)2007, 237 Fed.Appx. 271, 2007 WL
1814273, Unreported. Forfeitures 5

24. Pleadings

Municipal corporation failed to state cause of action against the state for impressing constructive
trust in an effort to prevent the state from building any other freeways in the state as to which
freeway agreements had been entered more recently than original 1962 agreement in question
and to compel the state to build municipal corporation's freeways without delay since nothing
was wrongfully detained. City of Fresno v. California Highway Commission (App. 3 Dist. 1981)
173 Cal.Rptr. 671, 118 Cal.App.3d 687. Trusts 371(2)

Allegations that defendants, which had been engaged as counsel following client's dismissal of
plaintiff as his attorney, acquired and detained specified sum from proceeds of settlement in
derogation of plaintiff's right to receive that amount pursuant to his lien stated cause of action
for relief in form of a constructive trust. Weiss v. Marcus (App. 2 Dist. 1975) 124 Cal.Rptr. 297,
51 Cal.App.3d 590. Trusts 371(2)

Complaint filed by purported buyers of interest in poker parlor against defendant, who agreed to
purchase for them another's interest in parlor, failed to state a cause of action to impress a
constructive trust in favor of buyers on defendant's 45 percent interest on theory that since
defendant failed to perform his agreement to buy another's interest for buyers, he should be
deemed to hold a portion of his own interest in trust for buyers, and failed to state cause of
action for declaratory relief on same theory. Broffman v. Klassman (App. 2 Dist. 1960) 6
Cal.Rptr. 717, 183 Cal.App.2d 117. Declaratory Judgment 314; Trusts 371(2)

In action to impose a constructive trust on real property, where plaintiffs specifically set forth the
links in their alleged chain of title, general allegation of ownership would be treated as a
conclusion of law from the facts alleged, and hence would not cure defects, if any in the specific
facts pleaded. Shive v. Barrow (App. 1948) 88 Cal.App.2d 838, 199 P.2d 693. Pleading 9;
Trusts 371(2)

Allegations that decedent shortly before death had granted and assigned to plaintiff a joint
tenancy interest with right of survivorship in $20,000 held by executor of deceased husband's
estate subject to court order of distribution and had promised that if decedent survived
operation, when her legacy from husband's estate was received, the $20,000 would be deposited
in a specified joint account of decedent and plaintiff and that, if she did not survive, the deposit
would be made by decedent's executor, did not state facts sufficient to show a “constructive
trust” in decedent's executor. Smith v. Bliss (App. 1 Dist. 1941) 44 Cal.App.2d 171, 112 P.2d 30.
Trusts 371(2)

In action to enforce resulting and constructive trusts on two tracts of land, because of plaintiff's
payment of part of purchase price for one tract and of payment of trust deed on another tract,
allegations concerning mutuality or value of the property were unnecessary. Juranek v. Juranek
(App. 1 Dist. 1938) 29 Cal.App.2d 276, 84 P.2d 195. Trusts 371(1)
Complaint by borrower against finance company, as holder of deed of trust, and directors
thereof, was sufficient to state cause of action for enforcement of promise to bid in property for
plaintiff's benefit and hold title subject to redemption, notwithstanding allegations as to loan,
notice of default and sale, and plaintiff's failure to obtain bidders. Penziner v. West American
Finance Co. (App. 1 Dist. 1933) 133 Cal.App. 578, 24 P.2d 501. Trusts 371(2)

Complaint purporting to plead constructive trust in realty and breach thereof, and alleging
sufficient facts, though some were insufficiently pleaded, was sufficient. Wilson v. Cole (App. 1
Dist. 1927) 80 Cal.App. 729, 252 P. 757. Trusts 371(2)

While it would be better for one seeking to establish constructive trust to plead necessary facts,
he may allege his ownership and that defendant without right withholds possession, and, if
defendant sets up title, may then show that he is equitable owner, and that defendant holds title
in trust for him. Calkins v. Calkins (App. 3 Dist. 1923) 63 Cal.App. 292, 218 P. 611. Trusts
371(2)

Complaint was insufficient to show trust by operation of law in favor of debtor under which
judgment creditor could claim, under §§ 852, 2217, 2223 and this section. Tainter v. Broderick
Land & Investment Co. (1918) 177 Cal. 664, 171 P. 679. Trusts 371(2)

Complaint was insufficient to excuse plaintiff from the consequences of recognizing the validity of
a mortgage by accepting its benefits. Bram v. Christopher (App. 1915) 27 Cal.App. 741, 151 P.
172. Trusts 371(1)

The action being to compel defendants, as trustees under a constructive trust, to deliver to
plaintiff, the equitable owner, certain shares of stock, the complaint need not allege the value
thereof. Kinard v. Jordan (App. 1909) 10 Cal.App. 219, 101 P. 696. Trusts 371(1)

25. Amendment of pleadings

In action to establish constructive trust as to certain oil properties, complaint alleging that
according to plaintiff's best information and belief the oil properties involved 105 described
parcels of land, and that plaintiffs did not know the exact nature of the oil interests in such lands
because records of complicated dealings were in exclusive possession of defendants, and
requested leave to amend to include more exact descriptions when plaintiffs discovered the
precise nature of the described lands, sufficiently excused and explained want of allegations
describing with more particularity the interest originally acquired by plaintiffs. Dabney v. Philleo
(1951) 38 Cal.2d 60, 237 P.2d 648. Trusts 371(2)

26. Limitations and laches, generally

A delay of 19 years by a complainant and his predecessors in interest before bringing a suit to
have defendants decreed to hold the title to an undivided interest in land in trust for complainant
was such laches as to bar the right to relief in equity. Carpenter v. M.J. & M. & M., Consol., 1914,
212 F. 868, 129 C.C.A. 388. Trusts 365(2)

Chapter 7 trustee's claim against members of debtor-limited liability company (LLC) for
imposition of constructive trust necessarily failed, under California law, where underlying claim
for fraudulent transfer was time-barred. In re JMC Telecom LLC, C.D.Cal.2009, 416 B.R. 738.
Trusts 365(5)
Right to constructive trust, because it is a remedy, is subject to statute of limitations on
underlying action that gives rise to right to constructive trust. In re Advent Management Corp.,
9th Cir.BAP (Cal.)1995, 178 B.R. 480, affirmed 104 F.3d 293. Trusts 365(5)

Neither statute of limitations nor doctrine of laches precluded bringing of action against
decedent's sister to impress constructive trust on realty held by sister, in view of fact that action
was brought within two years of decedent's death, and that there was no evidence that prior to
decedent's death, sister repudiated her trust, duty and obligation. Adams v. Young (App. 2 Dist.
1967) 62 Cal.Rptr. 877, 255 Cal.App.2d 145. Limitation Of Actions 103(2); Trusts 365(5)

Where promisee sought to impress constructive trust upon realty to effect performance of oral
promise of defendant's predecessor in interest to will equivalent of promisee's wife's estate in
consideration of promisee's dismissal of contest of wife's will and petition to have promisor
removed as guardian of wife's estate, action was not barred by laches. West v. Stainback (App. 2
Dist. 1952) 108 Cal.App.2d 806, 240 P.2d 366. Trusts 92.5

Where owner of one-quarter interest in land received deed from owner of another one-quarter
interest only for purpose of procuring a loan, obligation to make restitution was a continuing one,
and statute of limitations on action to cancel deed and require a reconveyance did not begin to
run until first party repudiated her trust. Strausburg v. Connor (App. 3 Dist. 1950) 96 Cal.App.2d
398, 215 P.2d 509. Limitation Of Actions 103(2)

The statutes of limitations and the equitable doctrine of laches do not begin to operate against
action for declaration of voluntary constructive trust or positive voluntary trust resting in parol
until trustee begins to act in hostility to continuing obligation imposed by parol agreement or
understanding. O'Brien v. O'Brien (App. 1 Dist. 1942) 50 Cal.App.2d 658, 123 P.2d 877.
Limitation Of Actions 103(3); Trusts 365(5)

A prior executrix of estate of which mortgage was an asset could not complain that successor
administrator who was appointed on March 26, 1936, was “estopped” by “laches” from bringing
action on January 20, 1940, against executrix to establish trust in mortgaged property which
owners conveyed to executrix, where administrator proceeded shortly after his appointment in
an endeavor to realize something from the mortgage, and without undue delay filed three
separate actions in which innumerable technicalities were raised by executrix to prevent
recovery. Prussing v. Bates (App. 4 Dist. 1941) 46 Cal.App.2d 347, 115 P.2d 854. Trusts
365(5)

Where plaintiff, after having, with full knowledge of all facts, disclaimed any intention of
asserting title to a fund, did not attempt to assert any title for over three years, his right to
maintain an action to charge defendants as trustees, under this section, as to involuntary trust
resulting from gaining a thing by accident, mistake, etc., is barred by laches; there being no
excuse for delay. Cowan v. Union Trust Co. of San Francisco (App. 1918) 38 Cal.App. 203, 175
P. 799. Trusts 365(4)

27. Restoration of benefits received

As beneficiaries of constructive trust under California law, defrauded investors had cognizable
interest in bank accounts which had been controlled by fraudster and repatriated from
Liechtenstein, and thus had Article III standing to enter claims against funds in government's
forfeiture proceeding. U.S. v. $4,224,958.57, C.A.9 (Cal.)2004, 392 F.3d 1002. Forfeitures 5

Where, as fiduciary, it was church building committee and administrative council chairman's duty
concerning sale of church property and purchase by church of additional church property to use
his best efforts to secure most beneficial deal possible for his principal, the church, and instead
chairman used his best efforts to see that his friend, a real estate broker, received commission
on such transactions, amount of such commissions was proper measure of church's recovery
from such fiduciary. St. James Armenian Church of Los Angeles v. Kurkjian (App. 2 Dist. 1975)
121 Cal.Rptr. 214, 47 Cal.App.3d 547. Religious Societies 9

Where a constructive trust is imposed court should require beneficiary of trust to do equity, and
under such rule beneficiary will ordinarily be required to repay benefits received. Steinberger v.
Steinberger (App. 1943) 60 Cal.App.2d 116, 140 P.2d 31. Trusts 374

28. Estoppel

Where judgment of divorce incorporated a stipulation that husband would maintain insurance on
his own life with death benefits of not less than $15,000 for each of minor children, but husband
changed beneficiary to his estate on all policies except one, and former wife brought action to
have husband's executors declared constructive trustees of proceeds from policies, husband's
executors were estopped by husband's stipulation from challenging insurance provision of
divorce judgment. Cramer v. Biddison (App. 2 Dist. 1968) 65 Cal.Rptr. 624, 257 Cal.App.2d 720.
Estoppel 79; Estoppel 98(3)

In action to impose a constructive trust on realty, evidence sustained finding that plaintiff had
committed no fraud which would prevent recovery, on probate court in negotiating and
effectuating a loan from estate of mentally incompetent father of one of the defendants to
plaintiff, who was guardian of the father. Stobie v. Stobie (App. 3 Dist. 1953) 116 Cal.App.2d
360, 253 P.2d 765. Trusts 110

Where husband and wife took title to dwelling as joint tenants, and wife was forced to borrow
and give note for $150 when husband failed to furnish necessaries, and husband promised to
pay note and subsequently wife obtained a divorce decree which required husband to keep up
payments on incumbrances on the house, judgment was obtained against wife on her note, and
judgment creditor purchased her interest in dwelling at sheriff's sale and assigned certificate of
purchase to husband, husband became an involuntary trustee for benefit of wife and was
estopped to take advantage of his acts as against wife. Sellman v. Sellman (App. 2 Dist. 1947)
82 Cal.App.2d 192, 185 P.2d 846. Divorce 1359

A dwelling house which deceased purchased as home for friend and title to which deceased
stated she held as trustee for friend was subject to constructive trust in favor of friend under
principle of equitable estoppel, where friend and her family moved into house and occupied it
rent free and made substantial and permanent improvements and paid insurance and taxes.
Haskell v. First Nat. Bank (App. 1 Dist. 1939) 33 Cal.App.2d 399, 91 P.2d 934. Trusts 99

28.5. Unclean hands, generally

Lessee was not entitled to constructive trust on proceeds of sale of certain of lessee's real
property which had been deposited into personal bank account of controlling shareholders and
officers of lessee to pay judgment debt in favor of lessor due to lessee's unclean hands. In re
Sexton, Bkrtcy.N.D.Cal.1994, 166 B.R. 421. Equity 65(1)

29. Burden of proof, generally

Under California law, where the legal title rests in one person, to establish a resulting trust for
the benefit of another against a presumption in favor of the legal title, the evidence must be
clear and convincing, especially when an attempt is made to establish a resulting trust after the
lapse of many years or where parol evidence alone is relied upon. In re Cecconi,
Bkrtcy.N.D.Cal.2007, 366 B.R. 83. Trusts 89(5)

Under California law, to prevail on her claim of a purchase money resulting trust, wife had to
show by clear and convincing evidence that she paid for the property and that she did not intend
to give her husband a beneficial interest in the property when his name was placed on record
title. In re Cecconi, Bkrtcy.N.D.Cal.2007, 366 B.R. 83. Trusts 81(2); Trusts 89(5)

Under California law, one who claims a resulting trust in property has the burden of proving the
facts establishing his beneficial interest by clear and convincing evidence. In re Cecconi,
Bkrtcy.N.D.Cal.2007, 366 B.R. 83. Trusts 89(5)

Under California law, party seeking constructive trust remedy has burden of showing by clear
and convincing evidence that it is entitled to relief sought. In re Goldberg, Bkrtcy.E.D.Cal.1993,
158 B.R. 188, affirmed 168 B.R. 382. Trusts 110

In suit to establish constructive trust, burden rests on plaintiffs to show by clear and convincing
evidence that deed or other transfer absolute on its face is not what it purports on its face to be,
but such evidence need not be conclusive and may be indirect, consisting of acts, conduct, and
circumstances; and question as to whether showing is clear and convincing is primarily one for
trial court. Grace v. Rodrigues (App. 1952) 111 Cal.App.2d 131, 243 P.2d 906. Trusts 110

Where plaintiff based claim to land on contract requiring defendants to transfer land to plaintiff
upon plaintiff's performance of certain conditions, plaintiff had burden to show terms of contract
and his performance thereof. Eisenmenger v. Eisenmenger (App. 1 Dist. 1943) 59 Cal.App.2d
536, 139 P.2d 63. Trusts 107

30. Evidence, generally

In case ancillary to insolvency proceedings in the United Kingdom, debtor's nondebtor wife
established a purchase money resulting trust by clear and convincing evidence under California
law, such that the California real property was wife's sole and separate property and debtor had
no beneficial interest therein; although record title to the property was taken in names of debtor
and wife as community property, initial purchase price and all costs of improvement were
financed solely by wife, as certain promissory notes evidenced legitimate loans between wife and
debtor and funds transferred by debtor were used to pay principal and interest on the loans, not
to pay costs of improvements, and, in allowing debtor's name to appear on the title, wife did not
intend to gift debtor a beneficial interest in the property but, instead, intended to retain full
beneficial interest for herself, consistent with the parties' practice of conducting their financial
affairs separately. In re Cecconi, Bkrtcy.N.D.Cal.2007, 366 B.R. 83. Bankruptcy 2341
Under California law, a resulting trust is established by “clear and convincing evidence” if the
evidence has satisfied the conscience of the chancellor before whom the trial was had, and the
appellate court cannot say that the evidence clearly preponderates against the finding. In re
Cecconi, Bkrtcy.N.D.Cal.2007, 366 B.R. 83. Trusts 89(5)

Under California law, parol evidence is admissible to prove the existence of a resulting trust, and
such evidence does not violate the statute of frauds since such a trust is based in part on the
fact that there is no writing. In re Cecconi, Bkrtcy.N.D.Cal.2007, 366 B.R. 83. Trusts 63.5;
Trusts 88

Under California law, unpaid workers were not entitled to constructive trust in accounts
receivable generated by their efforts, given complete lack of evidence that bank with security
interest in accounts receivable had acquired its interest by fraud, accident, mistake, undue
influence, violation of trust or other wrongful act. In re USM Technology Corp.,
Bkrtcy.N.D.Cal.1993, 158 B.R. 821. Trusts 95

Trier of fact properly considered defendant's manslaughter conviction in determining truth and
veracity of his testimony in suit to have him declared constructive trustee of property for benefit
of plaintiff. Clark v. Pullins (App. 1959) 171 Cal.App.2d 703, 341 P.2d 73. Witnesses 336

In action to establish constructive trust in decedents' property for her children and their spouses,
evidence supported trial court's finding that no such trust including spouses was created.
Sukiasian v. Shakarian (App. 1 Dist. 1953) 115 Cal.App.2d 798, 252 P.2d 956. Trusts 110

In action to establish constructive trust in decedent's property for her children and their spouses,
including plaintiff husband of one of decedent's daughters, evidence supported trial court's
finding that there was no agreement between plaintiff and his wife that all property acquired by
either of them, including property inherited by wife from decedent, would be their common
property. Sukiasian v. Shakarian (App. 1 Dist. 1953) 115 Cal.App.2d 798, 252 P.2d 956. Trusts
110

Parol evidence that titles to specified bank accounts came to defendants subject to a trust in
favor of plaintiff was not inadmissible as varying the terms of written agreement entered into
with bank. Jarkieh v. Badagliacco (App. 1946) 75 Cal.App.2d 505, 170 P.2d 994. Trusts 109

Evidence was sufficiently clear and convincing to authorize judgment determining that defendant
held one-half of certain bank accounts in trust for plaintiff. Jarkieh v. Badagliacco (App. 1946) 75
Cal.App.2d 505, 170 P.2d 994. Trusts 110

One who would claim ownership of property of which the legal title stands of record in another,
or that the same is held by such person in trust for the one so claiming, must establish such
claim by evidence that is clear, satisfactory, and convincing, and whether the evidence in any
particular case is of this character must be determined by the trial court, which determination
thereon will be accepted on appeal as conclusive. Redsted v. Weiss (App. 1946) 73 Cal.App.2d
889, 167 P.2d 735. Trusts 89(5); Trusts 110

One who claims ownership of property of which legal title stands of record in another, or that
property is held by such person in trust for claimant, must establish claim by evidence that is
clear, satisfactory, and convincing. Palmer v. Burnham (App. 1 Dist. 1946) 72 Cal.App.2d 626,
165 P.2d 50. Trusts 110

Evidence was not sufficiently clear and convincing to establish that funds used by plaintiff's
sister, since deceased, in purchase of realty, were part of a joint tenancy bank account of
plaintiff and sister, so as to impress a trust on the realty after sister's death. Palmer v. Burnham
(App. 1 Dist. 1946) 72 Cal.App.2d 626, 165 P.2d 50. Trusts 110

In action to establish constructive trust in land, evidence showed that language of trustor was
not precatory, but conveyed direction and command. Taylor v. Bunnell (App. 3 Dist. 1933) 133
Cal.App. 177, 23 P.2d 1062. Trusts 110

In action to establish constructive trust in land under deed alleged to have been made by
defendant conveying remainder interest to plaintiff at time defendant's wife conveyed land to
defendant, evidence showed that defendant owned only life estate and held legal title to
remainder in trust for plaintiff. Taylor v. Bunnell (App. 3 Dist. 1933) 133 Cal.App. 177, 23 P.2d
1062. Trusts 110

In action against husband and wife to establish trust in lands, document comprising
acknowledgement of plaintiff's interest, which defendant wife refused to sign, was admissible as
part of conversation with plaintiff's agent. Hannah v. Canty (1917) 175 Cal. 763, 167 P. 373.
Trusts 108

30.5. Tracing funds, generally

California law as well as bankruptcy law requires that where constructive trust is sought to be
imposed against property of insolvent debtor, strict tracing is required. In re Goldberg,
Bkrtcy.E.D.Cal.1993, 158 B.R. 188, affirmed 168 B.R. 382. Bankruptcy 2927; Trusts 358(1)

Rules regarding tracing where trust funds have been commingled with personal funds generally
favor beneficiaries and are premised upon preventing unjust enrichment of trustee. In re
Goldberg, Bkrtcy.E.D.Cal.1993, 158 B.R. 188, affirmed 168 B.R. 382. Trusts 352

Under California law, rationale for strict tracing where debtor is insolvent is to protect unsecured
creditors from being prejudiced by creditor with similar claim from receiving priority payment
from assets that would otherwise be available to pay all creditors pro-rata. In re Goldberg,
Bkrtcy.E.D.Cal.1993, 158 B.R. 188, affirmed 168 B.R. 382. Trusts 353

Under California law, in order to assert constructive trust on property acquired from property
initially subject to constructive trust, tracing must be established; without tracing, beneficiary is
relegated to position of general unsecured creditor. In re Goldberg, Bkrtcy.E.D.Cal.1993, 158
B.R. 188, affirmed 168 B.R. 382. Trusts 358(1)

Strict tracing necessary for imposition of constructive trust requires creditor to demonstrate that
property subject to constructive trust was specifically and directly exchanged for property sought
to be recognized as trust property. In re Goldberg, Bkrtcy.E.D.Cal.1993, 158 B.R. 188, affirmed
168 B.R. 382. Trusts 358(1)
Under California law, strict tracing of proceeds of escrow refund check, mistakenly paid to
debtor, to debtor's current residence was not mandated, and liberal tracing would be permitted
to preserve interest of bank as assignee of title company's claim, despite debtor's insolvency,
where debtor's schedules showed that he claimed $45,000 equity in his residence as exempt
under California law and evidence established that $15,000 of that equity came from bank
accounts in which debtor commingled proceeds of check and which were subject to bank's
constructive trust under liberal tracing rules. In re Goldberg, Bkrtcy.E.D.Cal.1993, 158 B.R. 188,
affirmed 168 B.R. 382. Trusts 358(2)

31. Judgment or decree, generally

In action by successor administrator against former executrix of estate of which mortgage was
an asset, to establish trust in mortgaged property which owners conveyed to executrix,
inconsistency between conclusion of law that executrix had held legal title to property in trust for
estate since May 8, 1936, and statement in judgment that executrix had held legal title in trust
for estate since 1932 was immaterial, where statement in judgment was surplusage and was not
essential to the judgment. Prussing v. Bates (App. 4 Dist. 1941) 46 Cal.App.2d 347, 115 P.2d
854. Trusts 373

A parol agreement by one recovering a judgment for land to share the land with others having
an interest therein, may be enforced in equity as a trust. Lamb v. Lamb (1915) 171 Cal. 577,
153 P. 913. Trusts 92.5

31.5. Summary judgment

Fact questions existed as to limited partners' interest in subject of managing general partner's
retention of funds and breach of fiduciary duty action against local general partner, and as to
whether managing general partner had wrongfully acquired from limited partners funds it sought
to recover from local general partner, precluding summary judgment in limited partners' claim
for establishment of constructive trust. In re Real Estate Associates Ltd. Partnership Litigation,
C.D.Cal.2002, 223 F.Supp.2d 1109. Federal Civil Procedure 2507.8

32. Particular involuntary trusts, generally

Evidence justified action of trial court in imposing a constructive trust on realty. Stobie v. Stobie
(App. 3 Dist. 1953) 116 Cal.App.2d 360, 253 P.2d 765. Trusts 110

In action to recover for legal services rendered to defendants by plaintiff's assignor, an attorney
at law, under alleged agreement whereby defendants were to hold note payable to one of the
defendants in trust for plaintiff's assignor who was to receive one half of the proceeds, evidence
warranted finding that defendants became voluntary, as well as involuntary trustees for
plaintiff's assignor, and in such capacity were required to hold the note in trust for plaintiff's
assignor. Niles v. Louis H. Rapoport & Sons (App. 2 Dist. 1942) 53 Cal.App.2d 644, 128 P.2d 50.
Trusts 44(1); Trusts 110

Where court, on competent evidence, found that after defendants obtained note, half of the
proceeds of which were to be paid to the plaintiff's assignor for legal services, defendants denied
that plaintiff's assignor had any interest in the note, and wrongfully retained the note and the
proceeds received therefrom, a finding that an “involuntary trust” or “constructive trust” was
created in favor of plaintiff's assignor was justified. Niles v. Louis H. Rapoport & Sons (App. 2
Dist. 1942) 53 Cal.App.2d 644, 128 P.2d 50. Trusts 110
Where letter, under which dissatisfied stockholders in oil and gas company assigned stock to
stockholders' protective committee, which was to exchange such stock for oil royalties and
royalties for stock in oil company to be organized, expressly provided that a share of the
royalties was to belong to members of the committee for their services, and committeeman,
who, as officer of a corporation, assigned corporation's stock in oil and gas company to
committee, no “express trust” was created with reference to committeeman's royalty share, and,
if there were a trust, committee member held his royalty share for corporation under
“involuntary” or “constructive trust.” Bell v. Bayly Bros. of California (App. 2 Dist. 1942) 53
Cal.App.2d 149, 127 P.2d 662. Trusts 30.5(1); Trusts 102(1)

Where defendants, in return for paying off mortgage on land and supplying funds for
improvements thereon, received oral promise by grantor not to convey remaining joint interest
held by grantor so that codefendant, who was a joint tenant with grantor, would become sole
owner at grantor's death, and defendants were entitled to rely upon grantor's promise, equity
would intervene to impose a “constructive trust” for defendants' benefit after grantor attempted
to convey land to his second wife, who did not part with consideration for deed, and whether
second wife had knowledge of grantor's promise to defendants and of the supplying of funds by
defendants was immaterial. Pellerito v. Dragna (App. 3 Dist. 1940) 41 Cal.App.2d 85, 105 P.2d
1011. Trusts 105

Where lessees of oil interest in land orally agreed to pay attorneys one-fourth of amount
recovered on lessees' claims against an assignee of oil lease and, after attorneys obtained
judgments against assignee, lessees obtained reconveyance of oil interest in settlement of
judgment debts and re-leased such interest, a “resulting trust” or “constructive trust” arose in
favor of attorneys as to property recovered as result of their efforts and lessees could not avoid
liability to attorneys on ground that agreement was unenforceable because it was oral. Harvey v.
Ballagh (App. 4 Dist. 1940) 38 Cal.App.2d 348, 101 P.2d 147. Trusts 63.5; Trusts 63.9;
Trusts 92.5; Trusts 103(4)

Evidence showed realty was purchased by incompetent's guardian with trust funds, not personal
funds, warranting imposition of trust. Mitchell v. Dunn (1930) 211 Cal. 129, 294 P. 386. Trusts
102(2)

That defendant utilized property in which plaintiff had half interest to raise purchase price for
other property vested in plaintiff interest in latter property. Bowman v. Carroll (App. 1 Dist.
1928) 91 Cal.App. 56, 266 P. 840. Trusts 105

Chancellor's finding for plaintiff, in action to declare trust in realty, was warranted. Wilson v. Cole
(App. 1 Dist. 1927) 80 Cal.App. 729, 252 P. 757. Trusts 110

Grantee acquiring record title after conveying interest by virtue of directorate in defunct
corporation, which took over grantor's property, and allowing forfeiture of mining claims, which
he subsequently relocated without aid of funds advanced by grantor for assessment work, was
mere trustee for grantor, and creditor, knowing of claim of grantor's creditor, could not subject
property to grantee's debts. Goldberg, Bowen & Co. v. Demick (App. 1 Dist. 1926) 77 Cal.App.
535, 247 P. 261. Trusts 95

Where plaintiff agreed to select timber lands, defendant to furnish price, and both to divide
proceeds of sales, after deduction of expenses, etc., plaintiff could maintain suit to establish trust
in lands purchased by him previously to sale there by defendant. Hannah v. Canty (1917) 175
Cal. 763, 167 P. 373. Trusts 99

Under this section, a grantee under a deed of land by a grantor, not possessing legal capacity to
execute a deed, is an “involuntary trustee” of the land for the benefit of the owner thereof. Clapp
v. Vatcher (App. 1908) 9 Cal.App. 462, 99 P. 549.

In a proceeding to have land which had been conveyed without consideration on an agreement
to reconvey on demand adjudged to be held in trust, evidence was sufficient to sustain a finding
that plaintiff had requested the reconveyance of the premises. Chamberlain v. Chamberlain (App.
1908) 7 Cal.App. 634, 95 P. 659. Trusts 110

Where money was deposited in bank under the mistaken belief of the depositor that it belonged
to a partnership composed of the depositor and a decedent, and it was subsequently judicially
determined that the partnership never existed, and that the money belonged to the estate of the
decedent, the bank in which the money was deposited was an involuntary trustee thereof for the
benefit of the decedent's estate, under § 2223, and this section, defining an involuntary trustee
as one who wrongfully detains a thing or gains the same by fraud, accident, mistake, or other
wrongful act. First Nat. Bank of Modesto v. Wakefield (1906) 148 Cal. 558, 83 P. 1076. Trusts
104

Where a trustee invested the trust fund in a business, which he thereafter conducted in his own
name, the fact that credit was extended to him on the strength of his apparent ownership does
not give to his creditors an equity in the property superior to that of the cestui que trust. Byrne
v. McGrath (1900) 130 Cal. 316, 62 P. 559. Trusts 342

Where Y., who had been the clerk of S., deceased, and Mrs. S.'s rent collector, took an
assignment of mortgage from S., foreclosed it, and took title to the land in his own name, and
Mrs. S. thereafter claimed the land as having bought the mortgage from her husband, and had it
assigned to Y. to foreclose, but Y. maintained that he had bought and foreclosed the mortgage
for himself, the record of the foreclosure case showing that Y., cross-examined, had admitted his
agency for Mrs. S. in the matter, and that the price of the mortgage was applied on a debt due
from S. to his wife, the court was justified in finding him a trustee, who could have no possession
adverse to Mrs. S. Hunt v. Swyney (1893) 4 Cal.Unrep. 108, 33 P. 854. Adverse Possession
61; Trusts 110

Where testatrix gave by will all her money and property in France to one B., to be distributed
“according to private instructions I give him” and at the same time she verbally instructed B. to
distribute the property among certain relations in France and B. carried out his instructions, in a
suit by an heir to whom nothing had been left to have it declared that B. held the property in
trust for all the heirs, and for an accounting and distribution, that, though the laws of California
require a will to be in writing, yet equity would charge the legatee with a constructive trust in
favor of the beneficiaries intended by the testatrix, and B. properly distributed the property in
accordance with the instructions given him, which he at the time promised to fulfill. Curdy v.
Berton (1889) 79 Cal. 420, 21 P. 858, 12 Am.St.Rep. 157. Wills 677

Where K. purchased land of B., paying therefor money received from the defendant, his mother,
with the understanding that he should purchase the land for her benefit, taking the deed in his
own name and plaintiff, the wife of K., knowing the facts, procured B. to make a deed of gift to
her of the premises, the plaintiff took the legal title in trust for the defendant. Wormouth v.
Johnson (1881) 8 P.C.L.J. 362, 58 Cal. 621. Vendor And Purchaser 210

When a person received a grant of land from the Mexican government, and, on his dying
intestate, it descended to his brother and sister, and his wife, in ignorance of the rights of the
heirs, granted away a portion, and she and her grantee presented their claims to the land
commissioners in good faith, and received patents therefor, by way of confirmation, from the
United States, the ignorance of the rights of the heirs at law did not deprive them of their rights
and interest in the property, but the property was held in trust for them, which a court of equity
would enforce. Wilson v. Castro (1866) 31 Cal. 420. Trusts 93

33. Review

Mislabeling of involuntary trust as “resulting” rather than “constructive” was not reversible error,
especially where complainants, who drafted findings and conclusions, invited the error by
selecting the wrong term. Kraus v. Willow Park Public Golf Course (App. 1 Dist. 1977) 140
Cal.Rptr. 744, 73 Cal.App.3d 354. Appeal And Error 882(17)

II. FRAUD

<Subdivision Index>

In general 81
Actual fraud 87
Agent, fraud by 99
Agreements to defraud 93
Allegations of fraud 111-114
Allegations of fraud - Extrinsic fraud 114
Allegations of fraud - Inducements and representations 113
Allegations of fraud - Knowledge and intent 112
Allegations of pleadings generally in fraud cases 110
Amendment of pleadings 115
Burden of proof, fraud cases 121
Concealment as factor in fraud cases 97
Confidential and fiduciary relationship, fraud cases 94
Constructive or implied fraud 88
Damages, fraud cases 126
Deeds obtained by fraud, legal documents 103
Defenses, fraud cases 116
Equitable relief without fraud 127
Evidence, fraud cases 122
Extrinsic fraud 89
Extrinsic fraud - Allegations in fraud cases 114
Forged or fraudulent wills, legal documents 104
Forged wills 104
Fraud cases, amendment of pleadings 115
Fraudulent wills 104
Implied fraud 88
Implied or resulting trusts, fraud respecting 83
Inducements and representations, allegations of fraud 113
Inducements and representations in fraud cases 95, 96
Inducements and representations in fraud cases - In general 95
Inducements and representations in fraud cases - Reliance 96
Intent to defraud 92
Involuntary or charitable trusts 82
Joint tenant, fraud by 100
Judgment or decree, fraud cases 123
Jurisdiction, fraud cases 108
Knowledge and intent, allegations of fraud 112
Knowledge respecting fraud 91
Legal documents 102-104
Legal documents - Deeds obtained by fraud 103
Legal documents - Forged or fraudulent wills 104
Legal documents - Worthless documents 102
Legal documents in fraud cases 102-104
Limitations and laches, fraud cases 118
Necessary conditions in connection with fraud 90
Particular fraudulent cases 124
Particular involuntary trusts
Particular involuntary trusts - Fraudulent cases 124
Particular involuntary trusts - Nonfraudulent cases 125
Particular nonfraudulent cases 125
Parties, fraud cases 109
Persons without rights, fraud upon 98
Pleadings in fraud cases 110
Presumptions of fraud 120
Price, adequacy of in fraud cases 105
Reliance on inducements and representations 96
Repudiation of trust, fraud cases 85
Secret profits in fraud cases 106
Set-off, fraud cases 119
Species of fraud 86
Spouse, fraud by 101
Statute of frauds 117
Treasury department regulations, fraud by 107
Trust res in fraud cases 84
Worthless documents 102-104

81. In general

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Trusts arising from transactions within scope of this section providing that one who gains a thing
by fraud or other wrongful act is involuntary trustee of thing gained, fall within class of trusts
created by operation of law, and are constructive trusts. West v. Stainback (1952) 240 P.2d 366,
108 Cal.App.2d 806; Strausburg v. Connor (1950) 215 P.2d 509, 96 Cal.App.2d 398.

Even if there was fraud in inducement of transaction whereby purchaser of property was to
assign certain notes and deeds of trust as consideration but instead retained them under an
uncompleted pledge arrangement, no constructive trust could be imposed on the notes and
deeds under this section imposing trust where one “gains” a thing by fraud, since the notes and
deeds of trust were not “gained” by purchaser as result of fraud but as result of an earlier,
unrelated transaction. In re Bruce Farley Corp., C.A.9 (Cal.)1980, 612 F.2d 1197. Trusts 95

One who acquires property of another by fraud holds that property as an involuntary trustee for
the other. Asher v. Reliance Ins. Co., N.D.Cal.1970, 308 F.Supp. 847. Trusts 95

The holder of the legal title to lands will in equity be charged as trustee, where it was acquired
by fraud or under such circumstances as to render it inequitable for him to retain it. Norton v.
Meader, 1866, 4 Sawy. 603, 18 F.Cas. 420, No. 10351, affirmed 78 U.S. 442, 20 L.Ed. 184, 11
Wall. 442. Trusts 95

Where husband and wife in selling their house fraudulently induced purchasers to purchase
house for $3,900 in excess of its true value, and thereafter wife died, and her one-half interest in
note and trust deed given by purchasers was inherited by son and daughter, they became
involuntary trustees of $3,900 by which note exceeded value of house. Birch v. Ciria (App. 1
Dist. 1962) 22 Cal.Rptr. 798, 205 Cal.App.2d 1. Trusts 95

A constructive trust arises by operation of law from relation of parties and is usually imposed to
prevent unjust enrichment and to accomplish an equitable purpose. Ornbaun v. Main (App. 1
Dist. 1961) 17 Cal.Rptr. 631, 198 Cal.App.2d 92. Trusts 91

Where some member of the family or other confederate of the owner of realty acquires a tax
deed thereto from the State or other taxing agency, equity will examine the transaction to see
whether it was a fraudulent conveyance, and, if it is ascertained to be such, the purchaser will be
held a trustee, or the entire transaction will be held a redemption by the original owner. Carberry
v. Trentham (App. 1956) 143 Cal.App.2d 83, 299 P.2d 966. Taxation 2965

Constructive trust, which is based upon fraud or wrong, is founded on principle that no one can
take advantage of his own wrong and extends to practically any case where there is a wrongful
acquisition or detention of property to which another is entitled. Estrada v. Garcia (App. 1955)
132 Cal.App.2d 545, 282 P.2d 547. Trusts 95
A constructive trust may be imposed when a party has acquired property to which he is not
justly entitled, if property was obtained by actual or constructive fraud through the violation of
some fiduciary or confidential relationship. Walter H. Leimert Co. v. Woodson (App. 1 Dist. 1954)
125 Cal.App.2d 186, 270 P.2d 95. Trusts 102(1)

Where property is obtained by means of fraud, either actual or constructive, the transfers will be
set aside at the instance of the owner or his representative and the grantee will be held to hold
the title thereto as a “constructive trustee”, and if the property has been sold by the grantee, the
owner or his representative will be entitled to recover the proceeds of sale, or he may be entitled
to judgment for the reasonable value of the property so converted, and such rule is peculiarly
applicable where a parent conveys all of her estate to one child to the exclusion of other children
without monetary consideration. Hatch v. Penzner (App. 3 Dist. 1941) 44 Cal.App.2d 874, 113
P.2d 295. Trusts 103(2)

Where a transfer of property has been obtained through fraud, the transfer will be set aside at
the instance of transferor, and the transferee may be deemed to hold title as “constructive
trustee” for the transferor, and where property has been sold by the transferee, transferor may
recover the proceeds of sale or sue for the reasonable value of property so converted. Forman v.
Goldberg (App. 1941) 42 Cal.App.2d 308, 108 P.2d 983. Trusts 110

“Constructive trust” arises from acts of one wrongfully detaining property or obtaining it by
fraud, in violation of trust or other wrongful act. Simpson v. Gillis (1934) 1 Cal.2d 42, 32 P.2d
1071. Trusts 91

Fundamental theory of equity in creating involuntary trust is to restore defrauded party to

position he occupied before fraud was committed. Reay v. Reay (App. 1 Dist. 1929) 97 Cal.App.
264, 275 P. 533. Trusts 91

“Constructive trust” arises, regardless of intention, whenever by fraud or breach of fiduciary duty
one accepts property of another to make purchase in own name. Borton v. Joslin (App. 1 Dist.
1928) 88 Cal.App. 515, 263 P. 1033. Trusts 91

Constructive trusts are creatures of equity, formed to prevent fraud. Holstrom v. Mullen (App. 2
Dist. 1927) 84 Cal.App. 1, 257 P. 545. Trusts 91

A “constructive trust” is a creature of equity, and takes form whenever title is obtained by fraud,
actual or constructive; in such cases equity acting on the substance, regarding that as done
which should have been done. Sanguinetti v. Rossen (App. 1906) 12 Cal.App. 623, 107 P. 560.
Trusts 95

One who procures title to land by fraud, misrepresentation, and without consideration, acquires
only a naked legal title, which he holds under a constructive trust in favor of his grantor. De
Leonis v. Hammel (App. 1905) 1 Cal.App. 390, 82 P. 349. Trusts 95

Generally, where legal title to property has been obtained through actual fraud,
misrepresentations, concealments, taking advantage of one's necessities, or under circumstances
rendering it unconscientious for holder of legal title to retain beneficial interest, equity impresses
a constructive trust. Plummer v. Brown (1886) 70 Cal. 544, 12 P. 464. Trusts 95
Principal may proceed against agent, acquiring title to property for his own use in violation of
trust, to avoid purchase as fraudulent, or treat agent as trustee and claim benefit of purchase.
Hardenbergh v. Bacon (1867) 33 Cal. 356. Trusts 101

82. Involuntary or charitable trusts

Where minority members of religious association, purporting to act for association, caused
corporation to be formed and property transferred without actual authority to do so, corporation
received property not as rightful owner, but as involuntary trustee and should be compelled to
reconvey. Barber v. Irving (App. 2 Dist. 1964) 38 Cal.Rptr. 142, 226 Cal.App.2d 560. Religious
Societies 4

The fraudulent acquisition of property by a corporation which had been organized by relatives of
deceased to acquire property of his estate as part of a plan to defraud the heirs at law, although
corporation was organized for the avowed purpose as stated in its by-laws of effectuating the
decedent's desire to aid the American Indians, created an “involuntary trust” for the benefit of
the heirs, rather than a “charitable trust.” Young v. Young Holdings Corp. (App. 4 Dist. 1938) 27
Cal.App.2d 129, 80 P.2d 723. Charities 1; Trusts 95

83. Implied or resulting trusts, fraud respecting

Where lower court found a resulting trust in favor of plaintiff of property allegedly purchased by
defendant partially with money received from plaintiff, and the finding supported plaintiff's
theory of resulting trust and there was no proof of fraud, plaintiff could not contend that
defendant held property under a constructive trust or because of fraud or other wrongful act.
Bradley v. Duty (App. 2 Dist. 1946) 73 Cal.App.2d 522, 166 P.2d 914. Appeal And Error
882(3)

Constructive trusts are implied by law to prevent fraud in absence of agreement for a trust.
Johnson v. Clark (1936) 7 Cal.2d 529, 61 P.2d 767. Trusts 91

84. Trust res in fraud cases

When a fraudulent vendee has conveyed property or any interest therein to a third party who by
reason of his innocence acquires a good title as against equity of original vendor, latter has
remedy against substituted property. Haserot v. Keller (App. 2 Dist. 1924) 67 Cal.App. 659, 228
P. 383. Trusts 354

Fact that oral promises by defendant to convey land were made in bad faith and were false and
were to deceive plaintiff and to receive the fruits of his labor through fraud did not create a trust,
as the thing gained by the alleged fraud was plaintiff's labor, and not title to the land. Viau v.
Viau (App. 1 Dist. 1922) 57 Cal.App. 66, 207 P. 39.

85. Repudiation of trust, fraud cases

Grantee's repudiation of parol trust in realty is deemed fraud cognizable in equity where
appropriate relief will be afforded, and like rule applies to parol trust to have joint tenancy funds
distributed to specified persons after trustor's death. Wallace v. Riley (App. 1 Dist. 1937) 23
Cal.App.2d 654, 74 P.2d 807. Trusts 359(2)
Constructive trust may arise out of fraud upon repudiation by trustee of parol trust made when
he acquired title. Martin v. Diaz (App. 1 Dist. 1932) 124 Cal.App. 200, 12 P.2d 57. Trusts 96

Evidence was insufficient to establish parol trust at time alleged trustee acquired title, within rule
that constructive trust arises out of fraud upon repudiation of parol trust. Martin v. Diaz (App. 1
Dist. 1932) 124 Cal.App. 200, 12 P.2d 57. Trusts 110

86. Species of fraud

Constructive trusts based on fraud or wrongdoing are creatures of equity, and take form
whenever title is obtained by means of chicanery, deceit or other variety of fraud actual or
constructive. West v. Stainback (App. 2 Dist. 1952) 108 Cal.App.2d 806, 240 P.2d 366. Trusts
95

Where there is duty to speak because of trust or confidential relation, failure to do so is species
of fraud for which equity may afford relief. Blair v. Mahon (App. 2 Dist. 1951) 104 Cal.App.2d 44,
230 P.2d 832. Trusts 94.5

87. Actual fraud

Upon proof of a transfer made in reliance upon an oral agreement to hold in trust and upon proof
of the subsequent repudiation of the agreement, the trier of facts may infer that maker of
promise had intention not to perform at time promise was made, which is actual fraud. Jarkieh v.
Badagliacco (App. 1946) 75 Cal.App.2d 505, 170 P.2d 994. Trusts 107

Proof of actual fraud as between attorney and client is not requisite to maintenance of action for
moneys intrusted to attorney. Zeller v. Knapp (App. 1931) 115 Cal.App. 486, 1 P.2d 1071.
Attorney And Client 127

Where an aged and helpless grantor conveyed all his property to a sister in reliance on her
promise to care for him for life, made without any intention to perform, the conveyance was
obtained by the grantee's actual fraud, and a subsequent grantee of the grantor could compel a
conveyance from the grantee or one claiming under him with notice and without consideration.
Tench v. McMeekan (App. 1911) 17 Cal.App. 14, 118 P. 476. Trusts 103(2)

Where a person prevailed upon plaintiff to deed his land to her without consideration, falsely
pretending that suits were about to be brought which would result in plaintiff's liability for certain
indebtedness as a stockholder in a company, and that his land might be taken for the debt, and
that she would upon demand reconvey the land which she subsequently refused to do, she was
guilty of actual fraud within § 1572, subds. 1, 4, 5, providing that actual fraud within the
meaning of the chapter relating to contracts consists of the suggestion as a fact of that which is
not true by a party to a contract with intent to deceive another party thereto, or to induce him to
enter into the contract or promise made by such a person without any intention to perform it, or
any other act fitted to deceive, and under this section, she became an involuntary trustee for
plaintiff, in the absence of an affirmative showing that his purpose in conveying the land was
unlawful or immoral. Chamberlain v. Chamberlain (App. 1908) 7 Cal.App. 634, 95 P. 659. Trusts
95

Where a deed is delivered by an aged mother, at a time when she is severely ill, to her son, by
reason of trust reposed in him by her, and in reliance on his promise to pay her a stipulated sum
monthly in consideration thereof, his acceptance and retention of the deed with no intention of
keeping his promise constitute actual fraud, entitling her to have a trust declared in the property
so conveyed to him. Becker v. Schwerdtle (1903) 141 Cal. 386, 74 P. 1029. Trusts 103(2)

88. Constructive or implied fraud

While under California law a constructive trust was imposed by law and arose immediately with
defendant's acquisition of the proceeds of the fraud, apparent victims' interest pursuant to the
constructive trust was not superior, as would preclude criminal forfeiture, to government's
interest in the proceeds of the fraud, which interest arose upon commission of fraudulent act
giving rise to criminal forfeiture; apparent victims' interest pursuant to the constructive trust and
government's interest arose simultaneously. U.S. v. Wilson, E.D.Cal.2009, 640 F.Supp.2d 1257.
Forfeitures 3; Trusts 94.5

Under California law, a constructive trust is imposed by law and arises immediately with the
fraudster's acquisition of the proceeds of the fraud. U.S. v. Wilson, E.D.Cal.2009, 640 F.Supp.2d
1257. Trusts 94.5

In absence of finding as to profits realized by investment corporation in operation of brewery

which had been transferred pursuant to desire of dominant stockholder of brewery corporation in
fraud of rights of minority stockholders therein and in absence of finding that these profits were
invested in assets upon which court had imposed trust in minority stockholders' derivative suit
against investment corporation, judgment imposing trust on real property acquired by
investment corporation subsequent to execution of contract and on other property owned or held
by investment corporation could not be sustained. Efron v. Kalmanovitz (App. 2 Dist. 1967) 57
Cal.Rptr. 248, 249 Cal.App.2d 187. Trusts 373

Evidence was sufficient to sustain finding in brewery corporation's minority stockholders'

derivative suit against investment corporation and dominant stockholder of both that real
property which was sold by brewery pursuant to desire of dominant stockholder to investment
corporation was obtained by the investment corporation through constructive fraud and that the
investment corporation held property in trust for brewery. Efron v. Kalmanovitz (App. 2 Dist.
1967) 57 Cal.Rptr. 248, 249 Cal.App.2d 187. Trusts 110

This section providing that one who gains thing by fraud is involuntary trustee of thing gained is
brought into operation either by actual fraud which induced conveyance or constructive fraud
issuing from breach of verbal promise by promisor who was in confidential relationship with
promisee. Briggs v. Nilson (App. 2 Dist. 1964) 38 Cal.Rptr. 68, 226 Cal.App.2d 342. Trusts 95;
Trusts 103(1)

Failure of executrix who had known remainderman's address to send notice of probate
proceedings to remainderman and executrix' obtention of undue advantage over remainderman
by making erroneous statement in probate petition that executrix was decedent's next of kin and
sole surviving heir and was entitled to succeed to all of decedent's estate constituted
“constructive fraud.” Cardozo v. Bank of America Nat. Trust & Savings Ass'n (App. 1 Dist. 1953)
116 Cal.App.2d 833, 254 P.2d 949. Fraud 6

The law of constructive trusts applies equally to land conveyed under a promise to furnish
support as well as to land conveyed under an agreement for reconveyance although in each case
a fiduciary or confidential relationship must have existed between grantor and grantee, and such
relationship must appear as an ingredient of the constructive fraud practiced. Ampuero v. Luce
(App. 1 Dist. 1945) 68 Cal.App.2d 811, 157 P.2d 899. Trusts 103(1)

Where defendant promised plaintiff's wife that defendant would provide for plaintiff under certain
circumstances and upon receiving such oral promise plaintiff's wife executed a joint tenancy deed
to plaintiff and defendant, defendant's breach of oral promise after death of plaintiff's wife did
not create a constructive fraud relating to transaction so as to make defendant a constructive
trustee of premises for plaintiff's benefit. Ampuero v. Luce (App. 1 Dist. 1945) 68 Cal.App.2d
811, 157 P.2d 899. Trusts 94.5

A trustee's fraud in procuring trust property is implied, where he obtained title thereto with
definite promises to carry out trustor's wishes respecting its management and reconvey it to
trustor on request, but failed and refused to do so. Fernald v. Lawsten (App. 3 Dist. 1938) 26
Cal.App.2d 552, 79 P.2d 742. Trusts 48

All benefits from principal to one occupying fiduciary or confidential relation to him are
constructively fraudulent and void. Burrows v. Burrows (App. 1934) 136 Cal.App. 323, 28 P.2d
1072. Contracts 99(1)

Breach of promise to spouse, after obtaining absolute deed without consideration other than
parol promise to convey or hold land to carry out trust in favor of grantor, is constructive fraud,
making grantee involuntary trustee for grantor. Taylor v. Bunnell (App. 3 Dist. 1926) 77 Cal.App.
525, 247 P. 240. Trusts 99

If a grantee by means of a parol promise to reconvey obtains an absolute deed without

consideration from one to whom he stands in a confidential relation, the breach of the promise is
constructive fraud, although at the time it was made there was no intention not to perform.
Bradley Co. v. Bradley (App. 1918) 37 Cal.App. 263, 173 P. 1011. Trusts 103(1)

A gift by one person to another, occupying towards each other confidential relations, is
constructively fraudulent, and is only upheld on a showing of special circumstances. Nobles v.
Hutton (App. 1907) 7 Cal.App. 14, 93 P. 289. Gifts 47(3)

89. Extrinsic fraud

“Extrinsic fraud” permitting a court to set aside a settlement agreement arises where the
defrauded party was deprived of the opportunity to present his or her claim or defense to the
court, that is, where he or she was kept in ignorance or in some other manner, other than his or
her own conduct, fraudulently prevented from fully participating in the proceeding. Home Ins.
Co. v. Zurich Ins. Co. (App. 3 Dist. 2002) 116 Cal.Rptr.2d 583, 96 Cal.App.4th 17, review
denied. Compromise And Settlement 8(3)

Where distributees, through extrinsic fraud practiced in probate proceedings, obtain property to
which they are not entitled, equity will do justice not by overthrowing decree of distribution but
by declaring that distributees hold the property in trust for rightful owners. Ferguson v. Ferguson
(App. 1 Dist. 1943) 58 Cal.App.2d 811, 137 P.2d 735. Trusts 95

The mere filing of false claim against testator's estate for excessive amount was “intrinsic fraud”,
not warranting equitable relief, but claimant's acts, as executor and trustee under will, in willfully
suppressing material evidence and using undue influence on testator's minor heirs, named as
trust beneficiaries, not to protect their rights, thereby depriving them of estate assets,
constituted “extrinsic fraud” warranting imposition of trust for them in their subsequent
independent action against deceased claimant's estate for amount received in payment of claim.
Rosenbaum v. Tobias' Estate (App. 1 Dist. 1942) 55 Cal.App.2d 39, 130 P.2d 215. Trusts
102(2)

Where an heir knows of the existence of other heirs, and for the purpose of defrauding such
heirs and benefiting himself, he fails to notify the court of the existence of such heirs, and
knowingly files false petitions with the court representing that there are no such heirs, he is
guilty of “extrinsic fraud” warranting the imposition of a trust under this section on the
fraudulent distributee's interest. Hewett v. Linstead (App. 1 Dist. 1942) 49 Cal.App.2d 607, 122
P.2d 352. Trusts 95

In action by heirs of deceased wife of intestate who died after the wife, to impress a trust on
intestate's property, which was distributed to defendants as intestate's sole heirs, evidence that
many years prior to intestate's death, a defendant, who was intestate's niece and who was
subsequently appointed his administratrix, visited intestate's home, and saw a woman come out
of the home and shortly after go back into the home, and that such defendant thereafter made
no effort to learn who the woman was or what relation if any she sustained to the intestate, was
insufficient to establish that such defendant was guilty of “extrinsic fraud” within this section as
would justify declaring defendant to be an involuntary trustee of share bequeathed her for
plaintiffs. Hewett v. Linstead (App. 1 Dist. 1942) 49 Cal.App.2d 607, 122 P.2d 352. Trusts 110

Where, through extrinsic fraud practiced in probate proceedings, distributees have improperly
obtained property, equity will declare that distributees hold property in trust for rightful owners.
In re Madsen's Estate (App. 4 Dist. 1939) 31 Cal.App.2d 240, 87 P.2d 903. Trusts 95

Alleged beneficiaries must show extrinsic fraud to prove person receiving property became
involuntary trustee. Apablasa v. Sepulveda (App. 1 Dist. 1928) 91 Cal.App. 232, 267 P. 105.
Trusts 95

Where an administrator, by falsely representing to the court that he and his sister were the sole
heirs of decedent, procured a decree of distribution to be made on that basis, and it appeared
that, by sending a remittance to a third person according to a custom of decedent, he prevented
other heirs living in the vicinity of such third person from discovering the fact of death and
administration, his act constituted such extrinsic fraud as to justify a decree imposing upon the
decedent's property in administrator's hands a trust in favor of such omitted heirs. Monk v.
Morgan (App. 1 Dist. 1920) 49 Cal.App. 154, 192 P. 1042. Trusts 102(2)

90. Necessary conditions in connection with fraud

To create constructive or involuntary trust under this section providing that one who gains a
thing by fraud or other wrongful act is involuntary trustee of thing gained, no conditions other
than those stated in this section are necessary. West v. Stainback (App. 2 Dist. 1952) 108
Cal.App.2d 806, 240 P.2d 366. Trusts 95

The heirs at law of an estate who had been fraudulently induced to convey property acquired
from the estate to a corporation organized by relatives of deceased to acquire property of the
estate as part of a plan to defraud all the heirs at law were not required to repay to the relatives
money spent on the affairs of the corporation before being entitled to reconveyances and an
accounting. Young v. Young Holdings Corp. (App. 4 Dist. 1938) 27 Cal.App.2d 129, 80 P.2d 723.
Trusts 361

91. Knowledge respecting fraud

Knowledge on the part of one who caused property to be placed in name of another, that after
transfer, holder of legal title was claiming property to be his own in order to obtain credit, cannot
be implied from mere recordation or representation by holder of the legal title. In re Rogal,
S.D.Cal.1953, 112 F.Supp. 712. Trusts 357(2)

92. Intent to defraud

Constructive trusts based on fraud or other wrongdoing are not based primarily on the intention
of the parties but are forced on the conscience of trustee by equitable construction and operation
of law. West v. Stainback (1952) 240 P.2d 366, 108 Cal.App.2d 806; Rankin v. Satir (1946) 171
P.2d 78, 75 Cal.App.2d 691.

A suit to establish a trust in funds alleged to be fraudulently appropriated may be maintained

without the presence of an assignee of such funds, when the assignment is merely colorable, and
made with intent to defraud. Shainwald v. Davids, N.D.Cal.1895, 69 F. 687. Trusts 366(1)

Where when defendants assigned lease, without consideration, to limited partnership such
defendants were acting under mistaken belief that they possessed unrestricted right to convey
the lease from golf course corporation, to which lease had been transferred by financially
troubled investment corporation, an involuntary or constructive trust was properly imposed on
the assignors for benefit of those who were fraudulently induced to pay money to the investment
corporation on mistaken belief they that would become limited partners in golf course; trust was
properly imposed not because of an intention of the parties but because the person holding title,
having wrongfully come into possession, whether by mistake or otherwise, would be unjustly
enriched. Kraus v. Willow Park Public Golf Course (App. 1 Dist. 1977) 140 Cal.Rptr. 744, 73
Cal.App.3d 354. Trusts 95

Under will giving widow-executrix life estate with power to sell, convey or expend and giving
entire remainder to testator's nephew, where widow wrote letter telling nephew that he had one-
half interest in remainder of testator's estate and, thereafter, without having sent notice of
probate proceedings to remainderman, procured distribution of entire estate to executrix, widow
held property in trust for nephew, although widow had not intended to defraud remainderman.
Cardozo v. Bank of America Nat. Trust & Savings Ass'n (App. 1 Dist. 1953) 116 Cal.App.2d 833,
254 P.2d 949. Trusts 102(2)

Claimant was not precluded from establishing resulting trust upon ground of unclean hands in
that title to realty was placed in transferee's name with intent to defraud welfare board, where
no fraud was in fact perpetrated and evidence established that transaction was so handled at
vendor's suggestion, for his additional security. Stone v. Lobsien (App. 1952) 112 Cal.App.2d
750, 247 P.2d 357. Equity 65(2)

Constructive trusts are not based primarily on intention of parties, but are forced on conscience
of trustee by equitable construction and operation of law; and in such trusts based on fraud or
wrongdoing, an oral promise is sufficient, and the existence or absence of confidential
relationship between parties in a strict sense is not controlling. Strausburg v. Connor (App. 3
Dist. 1950) 96 Cal.App.2d 398, 215 P.2d 509. Trusts 91
Evidence that fraternal lodge member, who sustained a confidential relationship to lodge, was
informed by lodge's attorney that to enable lodge to make loan to member lodge would have to
acquire member's property by friendly foreclosure suit, that member was not informed that a
creditor was to bid at foreclosure sale, and that purchaser at sale had knowledge of
circumstances, justified holding that purchaser held property in trust for the member,
notwithstanding purchaser had no intent to defraud such member. Lucas v. Associacao
Protectora Uniao Madeirense Do Estado Da California (App. 1 Dist. 1943) 61 Cal.App.2d 344, 143
P.2d 53. Trusts 372(3)

93. Agreements to defraud

If a bank, pursuant to an agreement with owners of property to defraud attaching creditor,

purchased and foreclosed a trust deed, and through its officer purchased the land at foreclosure
sale and subsequently sold land to third person at a big increase in price, an action would lie
against the bank and officer to establish a trust in the surplus fund, and make it subject to
attachment creditor's claim, in view of this section. Arakelian v. Sears (App. 3 Dist. 1921) 53
Cal.App. 646, 200 P. 757. Fraudulent Conveyances 182(5)

94. Confidential and fiduciary relationship, fraud cases

If fraternal lodge was in a confidential and fiduciary relationship to a lodge member, lodge's
failure to carry out agreement regarding obtaining of member's property by friendly foreclosure
suit so as to enable member to obtain a loan from lodge constituted a fraud on the member.
Lucas v. Associacao Protectora Uniao Madeirense Do Estado Da California (App. 1 Dist. 1943) 61
Cal.App.2d 344, 143 P.2d 53. Trusts 100

Where confidential relationship exists between parties to transfer of land upon an oral agreement
to reconvey, breach of agreement by transferee or his administrator constitutes sufficient “fraud”
to create a “constructive trust.” Steinberger v. Steinberger (App. 1943) 60 Cal.App.2d 116, 140
P.2d 31. Trusts 103(1)

Where a close bond of friendship existed between father and daughter, whose husband was
about to die of cancer, and daughter, unaccustomed to business, transferred all her property to
father, who was in real estate business, to be invested for daughter's benefit and restored on
request, and after handling property for six years without an accounting father refused on
demand to restore property except for a small sum, there was a “confidential relationship”
between father and daughter and evidence established that transfer of property was procured by
fraud. Forman v. Goldberg (App. 1941) 42 Cal.App.2d 308, 108 P.2d 983. Trusts 110

In suit to establish a constructive trust in assets held by bank as trustee under a trust, created
by plaintiff's son, which plaintiff attacked on ground that she had been fraudulently induced by
her son, his agents and attorneys, in violation of duties arising out of a fiduciary relation to
relinquish a contingent remainderman's interest in a prior trust, evidence that plaintiff had
considerable business experience, that she dominated son to a large extent, and that she
distrusted him sustained finding that son did not occupy a position of a fiduciary character.
McMurray v. Sivertsen (App. 2 Dist. 1938) 28 Cal.App.2d 541, 83 P.2d 48. Trusts 110

In suit to establish a constructive trust in assets held by bank as trustee under a trust, created
by plaintiff's son, which plaintiff attacked on ground that she had been fraudulently induced by
her son, his agents and attorneys in violation of duties arising out of a fiduciary relation to
relinquish a contingent remainderman's interest in a prior trust, evidence that lawyer fully
explained to plaintiff, before subsequently appearing as her attorney in a suit by prior trustee,
that her contingent interest would be extinguished, sustained finding that no fiduciary relation
existed between plaintiff and lawyer on which she could rely to establish the constructive trust.
McMurray v. Sivertsen (App. 2 Dist. 1938) 28 Cal.App.2d 541, 83 P.2d 48. Trusts 110

Relation of trust and confidence existed between Indians who lived together as husband and
wife; hence she could recover proceeds of sale of her farm which she, because of his
misrepresentations, allowed him to deposit in his name. Piper v. Somerville (App. 4 Dist. 1933)
128 Cal.App. 667, 17 P.2d 1027. Trusts 103(3)

A husband and father cannot claim that his daughter stood in a fiduciary relationship to him so
as to render a conveyance by himself to the wife and daughter constructively fraudulent so as to
have a trust declared where the trial court found upon sufficient evidence that he had no interest
in the property conveyed, but that it belonged to the wife, and that he merely joined in the
conveyance as the husband of the owner. Parshall v. Parshall (App. 1 Dist. 1922) 56 Cal.App.
548, 205 P. 1081. Trusts 103(2)

95. Inducements and representations in fraud cases--In general

Where defendant settled on railroad land under an application to purchase, but plaintiff
subsequently applied for and secured the same land by fraudulently representing to the railroad
company that defendant had abandoned it, plaintiff held the same in trust for defendant, though
the offers under which defendant settled on the land were not absolute, but provided that
settlers who in good faith cultivated and improved lands belonging to the company would
“generally” be given the preference. Crosby v. Ahart (1901) 63 P. 1125; Crosby v. Clark (1901)
63 P. 1022, 132 Cal. 1.

Where defendant in ejectment, who had settled on railway land under application to purchase,
alleged that plaintiff, who subsequently purchased the same land, obtained his deed by
fraudulently representing that defendant had abandoned the land, and the testimony showed
that plaintiff's deed was withheld by the railway until they should obtain a relinquishment from
defendant, and that plaintiff subsequently told the railway agent that defendant had left, and his
whereabouts were unknown, a finding that plaintiff, knowing all the facts, for the purpose of
defrauding defendant, induced the railway to sell to plaintiff, was sufficient to support a
judgment for defendant, though it did not state that plaintiff, on making application, falsely
represented that defendant had abandoned the land; since this section declares that one who
gains a thing by fraud is, unless he has some better right thereto, an involuntary trustee for the
benefit of the person who would otherwise have had such property. Crosby v. Ahart (1901) 63 P.
1125; Crosby v. Clark (1901) 63 P. 1022, 132 Cal. 1.

Where a grantor conveys property to another in reliance on oral promise of the latter to hold
property in trust for grantor or a third person, and grantee subsequently repudiates the trust, a
constructive trust may be enforced against grantee if conveyance was induced by fraud or if
there was a confidential relationship between parties. Orella v. Johnson (1952) 38 Cal.2d 693,
242 P.2d 5. Trusts 96

In action by stepfather against stepdaughter to impress a trust on property which stepfather had
conveyed to stepdaughter upon alleged promise of stepfather's wife that property would be held
for stepfather and would be reconveyed upon request, evidence whether the conveyance was
induced by fraud was sufficient for trier of facts. Orella v. Johnson (1952) 38 Cal.2d 693, 242
P.2d 5. Trusts 111
Where owner of one-fourth interest in land desired to purchase another one-half interest, and
received a deed from person owning the remaining one-quarter interest on representation that
first person needed whole title to borrow sufficient funds to complete the purchase, and
thereafter first person refused to reconvey, first person acquired and retained interest of party
owning the remaining one-quarter interest by fraud, and became a trustee thereof for her
benefit. Strausburg v. Connor (App. 3 Dist. 1950) 96 Cal.App.2d 398, 215 P.2d 509. Trusts 95

Violation of parol promise to reconvey to promisees realty conveyed by them to promisor

constitutes fraud on which voluntary constructive trust or positive voluntary trust resting in parol
arises. Svistunoff v. Svistunoff (App. 1 Dist. 1949) 94 Cal.App.2d 651, 211 P.2d 352. Trusts
96

Where action to recover money advanced pursuant to fraudulent misrepresentations and to

impress a trust on proceeds of funds turned into improvements on realty resulted in judgment
for plaintiff which did not provide for sale of realty or means by which decree could be carried
into effect, receiver could subsequently be appointed to carry judgment into effect and order sale
of realty. First Nat. Trust & Savings Bank of San Diego v. Cerveny (App. 4 Dist. 1949) 93
Cal.App.2d 255, 208 P.2d 1018. Trusts 375(1)

The mere failure of a grantee to perform his oral promise to reconvey does not create a
constructive trust, unless he was guilty of fraud in procuring the grant. O'Melia v. Adkins (App. 2
Dist. 1946) 73 Cal.App.2d 143, 166 P.2d 298. Trusts 96

Defendant who obtains conveyance of plaintiff's interest in realty by fraudulent representations

was invested in equity with character of a trustee. Ramos v. Pacheco (App. 2 Dist. 1944) 64
Cal.App.2d 304, 148 P.2d 704. Trusts 95

Ordinarily the inducement, irrespective of number of promises, is the test in determining creation
of “constructive trust”. Adams v. Bloom (App. 1 Dist. 1943) 61 Cal.App.2d 315, 142 P.2d 775.
Trusts 91

Where defendant not only sold certificates of interest in a purported limited partnership and oil
and gas lease without complying with Corporate Securities Act, Stats.1917, p. 673, as amended,
but also obtained money for certificates by means of false representations, an “involuntary trust”
was created in favor of the investors paramount to any alleged interest of defendant in lease or
profits therefrom. Churchill v. Peters (App. 4 Dist. 1943) 57 Cal.App.2d 521, 134 P.2d 841.
Trusts 95

An heir at law who had been fraudulently induced to convey her interest in deceased's estate to
a corporation which had been organized by relatives of deceased to acquire property of the
estate as part of a plan to defraud all the heirs at law was entitled to equitable relief, though the
deed by which she conveyed her property to the corporation was voluntarily executed. Young v.
Young Holdings Corp. (App. 4 Dist. 1938) 27 Cal.App.2d 129, 80 P.2d 723. Trusts 347

Decedent's former partner and business associate was required to deal with decedent's executor
as if fiduciary of decedent, making void, as against heirs, obtention of property by
misrepresentations. Thompson v. Thompson (App. 1 Dist. 1928) 91 Cal.App. 554, 267 P. 375.
Trusts 103(5)
Surviving partner, procuring decedent's corporation stock by misrepresentation, was involuntary
trustee for heirs. Thompson v. Thompson (App. 1 Dist. 1928) 91 Cal.App. 554, 267 P. 375.
Trusts 103(5)

Where wife in consideration of love and affection transferred to her husband a half interest in
money owing her solely by reason of the husband's false representation that he had always been
and would always be true to her, a court of equity will set aside such transfer or gift under §§
1572, 1667, 1708, 1709, 3523, and this section in view of § 158 (repealed; see, now, § 5103).
Murdock v. Murdock (App. 3 Dist. 1920) 49 Cal.App. 775, 194 P. 762. Husband And Wife 52

Where holder of option on mining claim transferred it to plaintiff, representing that purchase
price was $15,000, whereas it was only $11,000, intending to keep the difference as a
commission for himself without plaintiff's knowledge, and taking title in his own name, such
holder became a trustee of the property for plaintiff. Hope Mining Co. v. Burger (App. 1918) 37
Cal.App. 239, 174 P. 932. Trusts 95

In an action to declare real estate to be held in trust for plaintiff on the ground that one of
defendants was plaintiff's agent for its sale, and, pretending to have found a purchaser, procured
a conveyance to the pretended purchaser for the purpose of purchasing it for himself,
misrepresentations necessarily involving facts bearing on the constructive fraud alleged were
properly admitted, though a confidential relation between the parties being shown, the
conveyance would be constructively fraudulent, and the burden of affirmatively proving good
faith on defendants. Curry v. King (App. 1907) 6 Cal.App. 568, 92 P. 662. Trusts 107

Where complainant conveyed certain property which she had acquired from the estate of her
deceased husband to her daughter-in-law, and permitted her and her husband to live on the land
and use it as their own for nearly nine years, and until after the death of the grantee's husband,
a finding in favor of defendants in an action to establish a trust in the land in favor of
complainant, founded on alleged misrepresentations of the grantee's husband with reference to
other claims concerning it, was not error, though complainant's evidence with reference to such
trust and misrepresentations was uncontradicted. De Galindo v. De Galindo (1905) 147 Cal. 77,
81 P. 279. Trusts 110

An administrator who procures the heir of his intestate to convey to him all the heir's interest in
the estate, by representations which are actually untrue, though not made with a fraudulent
intent, is an involuntary trustee of the property conveyed, for the benefit of the heir, under this
section. Wingerter v. Wingerter (1886) 71 Cal. 105, 11 P. 853. Trusts 102(2)

Where a party, while negotiating for the purchase of certain mortgages, obtained possession of
them, and then, fraudulently representing himself to the mortgagors to be the owner, obtained
from them a deed in fee of the premises, the title so obtained must be held in trust for the
mortgagees. De Leon v. Higuera (1860) 15 Cal. 483. Trusts 95

96. ---- Reliance on inducements and representations, fraud

Purchaser under land sale contracts that had assigned his interest to limited partnership was
seeking equitable remedy of imposition of constructive trust, under California law, where
purchaser claimed he would not have assigned his interest in properties had he known of
partnership's misrepresentations; purchaser was effectively alleging that partnership had
wrongfully acquired properties from him and was seeking judicial determination that because of
partnership's misconduct, property was transferred to purchaser as beneficiary of constructive
trust. In re Hathaway Ranch Partnership, Bkrtcy.C.D.Cal.1990, 127 B.R. 859. Trusts 95

Under this section providing that one who gains a thing by fraud is an involuntary trustee of the
thing gained, for benefit of person who would otherwise have had it, where grantor conveys
property to another in reliance on oral promise of the latter to hold property in trust for grantor
or a third person, and grantee subsequently repudiates trust, the trust is enforced in favor of the
intended beneficiary. Orella v. Johnson (1952) 38 Cal.2d 693, 242 P.2d 5. Trusts 96

In constructive trusts based on fraud or wrongdoing, oral promise is sufficient and existence or
absence of confidential relationship between parties, in strict sense, is not controlling. West v.
Stainback (App. 2 Dist. 1952) 108 Cal.App.2d 806, 240 P.2d 366. Trusts 95

A fraternal lodge member, who was advised by lodge's attorney that only way to obtain a clear
title so as to enable member to obtain a loan was through a friendly foreclosure suit by the
lodge, did not fail to show fraud on theory that advice given was only an expression of opinion on
question of law, where there was a confidential relation between member and lodge and member
justifiably relied on the representation. Lucas v. Associacao Protectora Uniao Madeirense Do
Estado Da California (App. 1 Dist. 1943) 61 Cal.App.2d 344, 143 P.2d 53. Trusts 100

In action to compel reconveyance, evidence supported conclusion that conveyance was made on
defendants' promise to reconvey, thus creating trust. Burrows v. Burrows (App. 1934) 136
Cal.App. 323, 28 P.2d 1072. Trusts 110

In a husband's action, after his wife's death, to set aside conveyances to her, evidence was
sufficient to warrant findings that the property was conveyed to her on her express promise to
reconvey to plaintiff on his demand, and that such promise was made in bad faith and without
any intention of performing it. Kohn v. Kempner (App. 3 Dist. 1922) 59 Cal.App. 621, 211 P.
805. Trusts 110

A trust estate is created in behalf of a wife where she without consideration deeds an interest in
her separate property to her husband and permits him to take in his name an interest in other
property purchased with her separate funds, on his representation that he only desires to hold
an interest of record for the sake of his business and social credit and that he will convey to her
at any time she desires; she having parted with her title in reliance upon such representations,
made to her with bad faith and with intent to withhold the property from her. Ford v. Ford (App.
2 Dist. 1919) 44 Cal.App. 415, 186 P. 164. Trusts 103(3)

97. Concealment as factor in fraud cases

Executor who was also specific legatee cannot be charged as trustee for fraud by reason of
concealment of partnership interest with purchaser of specific legacy, estates in no wise suffering
loss. Lichtenberg v. Burdell (App. 1 Dist. 1929) 101 Cal.App. 20, 281 P. 518. Trusts 105

Where there was no fraud in defendant's procurement of a decree distributing to them the
residue of an estate, there was no ground for the impressment of a trust in favor of plaintiffs
because of subsequent concealment by defendants of their claim of title. Heydenfeldt v. Osmont
(1918) 178 Cal. 768, 175 P. 1. Trusts 95

98. Persons without rights, fraud upon

If a party who is in possession of land without right, legal or equitable, is fraudulently deprived of
possession by one who does not deprive him of any right at law resulting from his prior
possession, and the one who thus obtains possession then purchases the title from the true
owner, he does not hold this title in trust for the prior possessor, and cannot be compelled to
convey it to him. Scott v. Umbarger (1871) 41 Cal. 410. Trusts 94.5

99. Agent, fraud by

An agent who fraudulently buys for himself land with his principal's money will be held a trustee,
if the money can be traced. Wells, Fargo & Co. v. Robinson (1859) 13 Cal. 133. Trusts 101

100. Joint tenant, fraud by

Realty purchased by husband with spouses' joint tenancy funds and subsequently conveyed by
him to wife cannot be held to have retained its joint tenancy character on theory that husband
acted in fraud of wife's rights and hence held title to property in his name as trustee for joint
tenancy, in absence of evidence justifying finding of fraud on his part; right of either joint tenant
to convey his separate estate without cotenant's consent being presumptively within parties'
contemplation when joint tenancy was created. In re Harris' Estate (1937) 9 Cal.2d 649, 72 P.2d
873. Trusts 110

101. Spouse, fraud by

Under this section, providing that one who gains a thing by fraud, undue influence, or other
wrongful act is, unless he has a better right thereto, a trustee of the thing gained, a husband
who obtained his wife's money by fraud and with it purchased land was her trustee. Heinrich v.
Heinrich (App. 1905) 2 Cal.App. 479, 84 P. 326. Trusts 103(3)

102. Legal documents--Worthless documents

Where persons secured to themselves the legal title of a Mexican grant, by the presentation to
the board of land commissioners of a worthless document, as a transfer of the grantee's interest,
whereby a fraud was committed on the heirs of the grantee, the patentees are in equity
converted into trustees, and the statute of limitations does not commence to run against the
rights of the heirs until their discovery of the fraud. Hardy v. Harbin, 1865, 4 Sawy. 536, 11
F.Cas. 510, No. 6060. Limitation Of Actions 102(9); Public Lands 213; Trusts 256

103. ---- Deeds obtained by fraud, legal documents

Defendant, in action to annul deed obtained by fraud, holds land as involuntary trustee of
plaintiff from whom it was obtained. Bryson v. Luse (App. 1932) 122 Cal.App. 192, 9 P.2d 844.
Trusts 95

104. ---- Forged or fraudulent wills, legal documents

A court of equity will not give relief by charging the executor of a will or a legatee with a trust in
favor of a third person, alleged to be defrauded by the forged or fraudulent will, where the court
of probate could afford relief by refusing probate of the will in whole or in part and the same rule
applies to devises of real estate, of which the courts of law have exclusive jurisdiction, except in
those states in which they are subjected to probate jurisdiction. In re Broderick's Will,
U.S.Cal.1874, 88 U.S. 503, 22 L.Ed. 599, 21 Wall. 503; Langdon v. Blackburn (1895) 41 P. 814,
109 Cal. 19.

If defendant forged will of decedent, during and after probate proceedings represented to
plaintiffs that will was genuine last will and testament of deceased, and in reliance on blood and
trust relationship between parties and on representation of defendant, plaintiffs did not contest
probate nor discover fact that will was forged until after distribution of estate, actions of
defendant would constitute extrinsic fraud, and constructive trust would be imposed on estate.
Granzella v. Jargoyhen (App. 1 Dist. 1974) 117 Cal.Rptr. 710, 43 Cal.App.3d 551. Trusts 95

105. Price, adequacy of in fraud cases

Where realty which wife had deeded to husband at time of their divorce was foreclosed on for a
delinquent street assessment bond and was sold to city, and wife purchased certificate of sale
covering realty from city and served husband with 30-day notice of right of redemption, mere
inadequacy of price paid by wife was not ground for enforcing trust in husband's favor, in
absence of fraud. Philp v. Hobart (App. 1951) 103 Cal.App.2d 446, 229 P.2d 783. Trusts 91

106. Secret profits in fraud cases

Church building committee and administrative council chairman, who breached duty of full
disclosure to church concerning sale of church property and purchase of additional property by
church for church use, and who by such breach caused secret profits to flow to third party, was
liable for such profits even though chairman did not personally receive any of such profits. St.
James Armenian Church of Los Angeles v. Kurkjian (App. 2 Dist. 1975) 121 Cal.Rptr. 214, 47
Cal.App.3d 547. Religious Societies 9

Evidence showed that one employed to buy bonds obtained for himself a secret profit in the way
of a stock bonus, which could and should have been obtained for his principal. Bone v. Hayes
(1908) 154 Cal. 759, 99 P. 172. Trusts 110

107. Treasury department regulations, fraud by

Treasury department regulations prohibiting an inter vivos transfer of government bonds cannot
be used to perpetrate a fraud, and constructive trusts may be imposed on proceeds in order to
achieve a fair result. Chase v. Leiter (App. 1 Dist. 1950) 96 Cal.App.2d 439, 215 P.2d 756.
Trusts 94.5; United States 91

108. Jurisdiction, fraud cases

This section providing that one who gains a thing by fraud or other wrongful act shall be held a
trustee for the person who would otherwise have had it, does not enlarge the jurisdiction of
courts of equity to include the power to set aside decrees probating wills on the ground of fraud.
Stead v. Curtis, 1913, 205 F. 439, 123 C.C.A. 507, certiorari denied 34 S.Ct. 775, 234 U.S. 759,
58 L.Ed. 1580, appeal dismissed 36 S.Ct. 221, 239 U.S. 634, 60 L.Ed. 478. Wills 257

Equity retains exclusive jurisdiction of actions to establish trusts and those founded on fraud.
Woolsey v. Woolsey (App. 1932) 121 Cal.App. 576, 9 P.2d 605. Trusts 359(2)

109. Parties, fraud cases

Action to impress realty with resulting trust upon ground of fraud was not maintainable by
assignee of mere right to sue, where assignee did not receive transfer of interest in property.
Meldrim v. Doyle (App. 1 Dist. 1932) 124 Cal.App. 514, 12 P.2d 997. Trusts 346

110. Allegations of pleadings generally in fraud cases

Where complaint in action to impress constructive trust alleged facts which amounted to
allegation that defendant gained a thing by fraud, accident or mistake, plaintiffs' failure to allege
that defendant “gained” a thing by fraud, accident, etc., was not fatal to complaint. Ehret v.
Ichioka (App. 2 Dist. 1967) 55 Cal.Rptr. 869, 247 Cal.App.2d 637. Trusts 371(2)

Complaint alleging that plaintiff employed defendant to represent plaintiff in negotiating the
purchase of realty adjacent to realty recently purchased by plaintiff with defendant's help, that
defendant agreed to act as broker but did so without intending to carry out agreement but to
induce plaintiff to rely thereon thus preventing plaintiff from negotiating directly with owner and
that defendant purchased the realty in his own name, stated a cause of action on theory of either
actual or constructive fraud. Walter H. Leimert Co. v. Woodson (App. 1 Dist. 1954) 125
Cal.App.2d 186, 270 P.2d 95. Brokers 38(3)

Where complaint, seeking to quiet title to stock in company incorporated April 18, 1931, alleged
that stock was issued by corporation to defendant under agreement between plaintiff and
defendant that defendant was to transfer stock to plaintiff at later time, that defendant never
affirmatively repudiated his trust, that in May, 1936, defendant procured a purported
relinquishment of plaintiff's interest in stock by means of fraud, and that such fraud was not
discovered by plaintiff until December 19, 1939, and the suit was commenced within a few
months after date on which alleged fraud was discovered, complaint did not show on its face that
it was barred by statute of limitations or “laches”, regardless of whether facts alleged constituted
a voluntary or involuntary trust. Truesdail v. Lewis (App. 3 Dist. 1941) 45 Cal.App.2d 718, 115
P.2d 218. Limitation Of Actions 179(2); Quieting Title 29

Complaint alleging that in consideration of transfer of business to sister, sister agreed to pay
monthly allowance to plaintiff but reserved right to curtail allowance upon 30 days' notice, and
reciting agreement whereby sister in consideration of affection agreed to provide monthly
allowance to plaintiff, and that sister retained proceeds of sale of business with intent to defraud
plaintiff, stated cause of action as against general demurrer, notwithstanding plaintiff did not
allege whether sister had given notice of curtailment of allowance. Johnson v. Clark (1936) 7
Cal.2d 529, 61 P.2d 767. Trusts 371(2)

Complaint alleging that in consideration of transfer of business to sister, sister agreed to pay
plaintiff monthly allowance but reserved right to lower allowance upon 30 days' notice, and that
sister retained proceeds of sale of business with intent to defraud plaintiff, showed presumptive
fraud, since presumptions of law need not be averred in complaint. Johnson v. Clark (1936) 7
Cal.2d 529, 61 P.2d 767. Trusts 371(2)

Complaint alleging that decedent's husband, with intent to deceive, agreed with decedent to
waive claim to decedent's separate property, and thereby prevented decedent's conveyance of
her separate estate, and that husband fraudulently filed petition for letters of administration
asserting claim as heir, stated cause of action against him as involuntary trustee for use of
decedent's daughter. Miller v. Forster (App. 1933) 131 Cal.App. 509, 21 P.2d 678. Trusts
371(2)
Complaint seeking accounting and to declare trust, alleging fraud without explaining delay, did
not state cause of action. Baxter v. King (App. 1 Dist. 1929) 96 Cal.App. 415, 274 P. 610. Trusts
371(1)

Allegations of complaint by remaindermen that proceeds of sale of realty under collusive tax sale
were voluntarily given to defendants by purchaser who had resold land were sufficient to entitle
them to accounting. Newport v. Hatton (1924) 195 Cal. 132, 231 P. 987. Trusts 371(1)

In suit to establish constructive trust in land which plaintiff had contracted to purchase and to
which defendants had received a deed because of a forged assignment of plaintiff's contract,
complaint did not allege facts showing that any injury would result from delay in suing, so as to
render it demurrable on the ground of laches. Burns v. Ross (1923) 190 Cal. 269, 212 P. 17.
Trusts 365(5)

The complaint, in a suit in equity to obtain judgment that money was borrowed under false
representations that certain fixtures mortgaged to secure the loan belonged to defendants and
asking that a trust be declared, was demurrable as failing to state what such fixtures were or the
value thereof as represented by defendants, and as showing that the value thereof had been
realized on the debt. Bram v. Christopher (App. 1915) 27 Cal.App. 741, 151 P. 172. Trusts
371(1)

Complaint, in an action to enforce an alleged trust arising out of defendant's breach of an escrow
agreement and its possession of the deeds by false representations and before the conditions of
performance occurred, with prayer for general relief, was good as against a general demurrer.
Doran, Brouse & Price v. Bunker Hill Oil Mining Co. (App. 1914) 23 Cal.App. 644, 139 P. 93.
Trusts 371(2)

Where a complaint in a suit to declare that distributees under a will hold property as trustees for
plaintiff alleged that plaintiff resided in a foreign country, and for several years after the probate
of the will she had no knowledge of the forgery of the will, nor of any conspiracy between the
distributees and others to obtain for them by means of a forged will the property of decedent
and there was no allegation of want of actual knowledge within a year after the probate of the
will of such court proceedings as were evidenced by the records of the court, it must be
presumed that plaintiff had knowledge of the order admitting the will to probate, either at the
time it was made or very shortly thereafter and in time to contest the will, so that the complaint
did not state a cause of action. Tracy v. Muir (1907) 151 Cal. 363, 90 P. 832. Trusts 371(1)

Where complaint in a suit to declare that distributees under a will hold property received
thereunder as trustees for plaintiff alleged that plaintiff had been deprived of property to which
she would have succeeded as heir by means of a false and forged will, established in a court
having jurisdiction to determine its validity, by perjured testimony, and it also alleged a
conspiracy between the distributees and others to obtain for the distributees by means of a
forged will the property of the decedent, and the action was brought after the expiration of the
time within which to bring a suit to contest the will, the complaint did not state a cause of action,
for whether the forgery and perjury complained of were the result of a conspiracy was
immaterial to a determination of plaintiff's rights to pursue the property in the hands of the
distributees. Tracy v. Muir (1907) 151 Cal. 363, 90 P. 832. Trusts 371(1)

111. Allegations of fraud

Complaint alleging that in a joint enterprise to which nephew made substantial contributions,
uncle took title to oil properties in his own name, and that uncle fraudulently promised, contrary
to his secret intention, that he would hold a one-half interest therein in trust for nephew and his
wife, and that he kept control thereof while fraudulently representing to nephew and his wife
that the properties had become worthless and that he had abandoned them, and that after death
of uncle his widow took the properties with knowledge of fraud of the uncle and not for the
value, stated no cause of action involving a resulting trust, since a resulting trust arises to
enforce the inferred intent of the parties. Dabney v. Philleo (1951) 38 Cal.2d 60, 237 P.2d 648.
Trusts 371(2)

Complaint alleging written contract to share profits to be derived from sale of realty purchased
by defendants under option obtained by plaintiffs and transferred to defendants, failure of
defendants to pay purchase-money notes and sale of realty to defendants under trust deed given
as security for notes disclosed no basis for holding defendants accountable to plaintiffs for an
interest in realty or profits as constructive trustees, in absence of allegation of facts showing
fraud or that defendants had any contractual duty to protect plaintiffs' interest in the profits.
Mulligan v. Wilson (App. 1951) 103 Cal.App.2d 664, 229 P.2d 858. Trusts 99

In action to establish a trust in plaintiff's favor in an undivided half of his stepfather's estate,
allegation that stepfather, in disregard of his agreement with plaintiff's mother, conveyed and
devised property to others than those entitled to it under the agreement sufficiently alleged
“constructive fraud”, notwithstanding that the word “fraud” was not used. Ryan v. Welte (App. 1
Dist. 1948) 87 Cal.App.2d 897, 198 P.2d 357. Trusts 371(2)

In action to impress a trust on a legacy, plaintiff's allegation that defendant's claim under a will
was a violation of a property settlement agreement and constituted a fraud upon plaintiff, was
insufficient where no specific acts of fraud were alleged. Bennett v. Forrest (1944) 24 Cal.2d
485, 150 P.2d 416. Trusts 371(5)

A complaint which alleged that defendant, who was one of incorporators of yeast company, and
who held virtually all stock in company, agreed to give plaintiff, who was a research scientist and
chemist, one-eighth of common stock of company if he would conduct all scientific and chemical
experiments for his company and procure a $15,000 loan for company, that, upon representation
that plaintiff's reports would have greater weight with public if his name did not at first appear as
a stockholder, stock was issued to defendant under agreement to transfer stock to plaintiff at
later time, that plaintiff performed his part of agreement, and that thereafter defendant procured
a purported relinquishment of plaintiff's interest in stock by means of fraud, sufficiently stated a
good cause of action to quiet title to stock, on ground that facts alleged constituted either a
voluntary or an involuntary trust. Truesdail v. Lewis (App. 3 Dist. 1941) 45 Cal.App.2d 718, 115
P.2d 218. Quieting Title 34(1)

In an action for reconveyance of land which had been acquired by defendants through fraud and
for an accounting, where the complaint alleged facts showing a conspiracy constituting fraud and
deceit in acquisition of the property, title in which had been quieted in a corporation organized by
the defendants for the purpose of acquiring the property, complaint was sufficient though failing
to directly allege that the plaintiff had had a defense to the quiet title action on the merits.
Young v. Young Holdings Corp. (App. 4 Dist. 1938) 27 Cal.App.2d 129, 80 P.2d 723. Trusts
371(2)

The facts constituting a fraud or a fraudulent breach of duty so as to make the wrongdoer a
trustee of real estate must be clearly alleged, and cannot be left to depend on conjecture and
inference in the pleading. Perreau v. Perreau (App. 1909) 12 Cal.App. 122, 106 P. 728. Trusts
371(2)

In a complaint praying that the patentee of United States lands be declared trustee for plaintiff
on the ground that, in a contest regarding the land, the United States land officers decided
against plaintiff in consequence of the fraud and perjury of the patentee, the allegations of fraud
and perjury were in general terms and were bad, because no issue could be raised as to what
was fraudulent and perjured, but the complaint should have set forth the false and fraudulent act
and statements with particularity. Plummer v. Brown (1886) 70 Cal. 544, 12 P. 464. Trusts
371(2)

112. ---- Knowledge and intent, allegations of fraud

Bill to establish trust in property allegedly fraudulently concealed by administrator of estate of

brother of plaintiff's ancestress was defective in failing to allege that ancestress was without
knowledge of fraud. Freeman v. Hopkins, 1929, 32 F.2d 756, certiorari denied 50 S.Ct. 30, 280
U.S. 575, 74 L.Ed. 626. Trusts 371(1)

In suit by legatee to impress trust upon shares of stock allegedly bequeathed to legatee but
erroneously distributed in probate of estate and acquired by executrix, where it was alleged that
while legatee had been in England and about to depart for combat in France executrix had,
without revealing that value of stock bequeathed to him was $13,475, sent legatee document by
which he agreed to receive $5,000 in stocks and cash as his share of estate, facts alleged
showed fraudulent concealment on part of executrix, and complaint stated facts sufficient to
constitute cause of action. Blair v. Mahon (App. 2 Dist. 1951) 104 Cal.App.2d 44, 230 P.2d 832.
Trusts 371(2)

In an action to impress a constructive trust upon a contract of sale of an automobile on the

installment plan, the complaint, in the absence of special demurrer, sufficiently alleged that
before defendant assignee acquired the automobile and contract from the defendant charged
with fraud, he had knowledge of plaintiff's rights. Carter v. Holt (App. 1915) 28 Cal.App. 796,
154 P. 37. Trusts 371(2)

Where a general fiduciary relationship exists, and confidence was reposed in the grantee, it is
not necessary to allege or prove that the conveyance was taken with a fraudulent intent, in order
to establish a constructive trust. Alaniz v. Casenave (1891) 91 Cal. 41, 27 P. 521. Trusts
102(1)

113. ---- Inducements and representations, allegations of fraud

Complaint alleging that in a joint enterprise to which nephew made substantial contributions,
uncle took title to oil properties in his own name, and that uncle fraudulently promised, contrary
to his secret intention, that he would hold a one-half interest therein in trust for nephew and his
wife, and that he kept control thereof while fraudulently representing to nephew and his wife
that the properties had become worthless and that he had abandoned them, and that after death
of uncle his widow took the properties with knowledge of fraud of the uncle and not for the
value, sufficiently allege a cause of action to establish a constructive trust. Dabney v. Philleo
(1951) 38 Cal.2d 60, 237 P.2d 648. Trusts 371(2)

Under allegation that bank and purchaser thereof in suit for accounting falsely represented that
they had not collected stockholders' notes which were assigned to plaintiff, bank and its
purchaser were involuntary trustees and required to meet allegations of complaint on its merits.
Stenderup v. Broadway State Bank of Los Angeles (1933) 219 Cal. 593, 28 P.2d 14. Trusts
371(2)

Complaint, alleging son fraudulently induced mother to turn over her property to him, to deprive
her and other sons thereof, stated equitable cause of action. Reay v. Reay (App. 1 Dist. 1929)
97 Cal.App. 264, 275 P. 533. Trusts 359(2)

Complaint of children, alleging that mother procured deceased father's property on

representation that she would care for children, and that she afterwards refused to account,
alleged a trust. Apablasa v. Sepulveda (App. 1 Dist. 1928) 91 Cal.App. 232, 267 P. 105. Trusts
371(2)

A complaint in an action to have a trust declared in property deeded by an aged mother to her
son on a fraudulent promise on his part to pay her a stipulated sum per month is not bad for
uncertainty, as against an objection that it does not appear that the defendant ever promised to
comply with the request of plaintiff at the time the deed was delivered to him, the allegation
being “that at the time she delivered such deed she stated to defendant that in case of her
recovery she would expect him to pay her $20 per month for her support; that defendant did not
say whether or not he would comply with said request, but, having great trust and confidence in
him, she believed he would comply with it.” Becker v. Schwerdtle (1903) 141 Cal. 386, 74 P.
1029. Trusts 371(2)

114. ---- Extrinsic fraud, allegation in fraud cases

In action by beneficiary under will for a decree declaring that testatrix' son held property in trust
for the beneficiaries under the will, on ground that son was guilty of some fraud, it was
incumbent on beneficiary to allege facts sufficient to support a finding and judgment that decree
of distribution of the estate of testatrix' husband, distributing all of the property of that estate to
testatrix' son eleven days before testatrix' death, was obtained by extrinsic fraud. Crow v.
Madsen (App. 4 Dist. 1941) 111 P.2d 7, rehearing granted, vacated 111 P.2d 663.

115. Amendment of pleadings

Where the object sought by a bill was to establish a trust in complainant's favor in a tract of
land, and to compel the defendant to convey the title thereto to complainant, on the ground
that, through fraud and irregularities, defendant had been permitted to enter the land from the
United States, a second pleading, which seeks to quiet the complainant's title to the land, cannot
be regarded as an amendment of the original bill, which may be filed under leave to amend,
since it not only states a different cause of action, but one which depends for its support on a
different and inconsistent state of facts. Savage v. Worsham, 1892, 104 F. 18.

In equitable action by owners of auto stages to impress property of corporation with trust to
extent of value of rights which had been diverted by alleged fraudulent acts of plaintiffs' agent in
obtaining franchise to operate auto stages in name of the corporation of his own creation,
amended complaint stated a cause of action. Ernsting v. The United Stages (1924) 194 Cal. 171,
228 P. 4. Trusts 371(1)

116. Defenses, fraud cases

A vendee, whose fraud in purchasing realty through another from mortgagee, which purchased it
at foreclosure sale after vendee's breach of contractual obligation to pay vendor's mortgage
note, involved vendee's loss of title to and possession of land to such nominal purchaser as
vendee's secret trustee, is in no position to take advantage of fact that he was not in possession
thereof at time of such trustee's purchase in vendor's suit to declare vendee a constructive
trustee of plaintiff's interest in land. Kallmeyer v. Poore (App. 2 Dist. 1942) 52 Cal.App.2d 142,
125 P.2d 924. Trusts 362

Where corporation had been organized by relatives of deceased to acquire property of deceased's
estate as part of a plan to defraud the heirs at law, the corporation's avowed objective as stated
in the by-laws of carrying out decedent's desire to help the American Indians furnished no basis
for defense to action by heir to recover property or proceeds, of which she had been defrauded.
Young v. Young Holdings Corp. (App. 4 Dist. 1938) 27 Cal.App.2d 129, 80 P.2d 723. Trusts
362

Where person to whom plaintiff intrusted contract for purchase of land forged an assignment to
himself, and then made purported assignment to defendants, plaintiff's negligence in failing to
record her contract did not defeat her right to have a constructive trust declared in her favor.
Burns v. Ross (1923) 190 Cal. 269, 212 P. 17. Trusts 343

117. Statute of frauds

Where plaintiff allegedly employed real estate broker to purchase realty for plaintiff but real
estate broker purchased the realty for himself individually, such agreements are not within
statute of frauds and evidence of the employment would be admissible for the purpose of
showing the relation between the parties and the fiduciary duties that arose therefrom and to
establish a constructive trust based upon the violation of that fiduciary duty. Walter H. Leimert
Co. v. Woodson (App. 1 Dist. 1954) 125 Cal.App.2d 186, 270 P.2d 95. Trusts 92.5; Trusts
109

Where, by means of an oral promise made without any intention of performing it, one obtains an
absolute deed without giving consideration therefor, the statute of frauds does not bar relief.
Bradley Co. v. Bradley (App. 1918) 37 Cal.App. 263, 173 P. 1011. Trusts 92.5

Where there had been a foreclosure of a mortgage on an undivided interest, and pending an
action to foreclose another mortgage on another undivided interest, the attorney of the
undivided owners advised that they convey all their interest to a third person, who should
convey to the attorney, who should procure a loan to pay the outstanding mortgages and to
procure a reconveyance under the mortgage foreclosed and the attorney promised to execute a
writing reciting the terms of the trust as soon as the deed to him was executed and deeds were
executed, but the attorney failed to execute a declaration of the trust, and conveyed an
undivided part of the premises to a stranger, a constructive trust was created by operation of
law, and the attorney took only the naked legal title in trust for the undivided owners, which
trust equity would enforce notwithstanding the statute of frauds, which could not be invoked by
the attorney. Sanguinetti v. Rossen (App. 1906) 12 Cal.App. 623, 107 P. 560. Trusts 92.5

Where a grantor conveys land by deed absolute a mere failure to comply with the promise to
reconvey is not such evidence of fraudulent intent in procuring the conveyance as will take the
case out of the operation of the statute of frauds, so as to admit parol evidence to establish the
trust. Feeney v. Howard (1889) 79 Cal. 525, 21 P. 984, 12 Am.St.Rep. 162. Trusts 109

Where plaintiff, the owner of two pieces of land, a ranch and a town lot, which were mortgaged,
conveyed them to her son without consideration, that he might effect a sale, which he failed to
do, and the land was sold under the mortgages, the mortgagees becoming the purchasers; but
the legality of the sale being questioned, plaintiff continued in possession, the son managing the
property till a compromise was effected by which the ranch was sold to a third person, most of
the proceeds paid to the mortgagees, and the town lot conveyed by them to the son and another
sum was paid by the son to the mortgagees, the origin of which cannot be accounted for, except
as proceeds of the produce of the land, no express trust existed in the son as to plaintiff's land,
but a constructive trust, to which the statute of frauds did not apply. Mallagh v. Mallagh (1888)
77 Cal. 126, 19 P. 256. Trusts 63.5; Trusts 92.5

Judgment creditors' verbal agreement with execution debtor to take possession of property
levied on in their own name, purchase it at sheriff's sale for debtor's benefit, and reconvey
unsold portion to him after repaying themselves for such advances, with interest and amount of
their judgment demands, out of rents, profits, and proceeds of personalty sold by them, was not
within statute of frauds. Sandfoss v. Jones (1868) 35 Cal. 481. Trusts 92.5

118. Limitations and laches, fraud cases

Suit to declare trust in property alleged to have been fraudulently concealed by administrator
was properly dismissed on ground of laches. Freeman v. Hopkins, 1929, 32 F.2d 756, certiorari
denied 50 S.Ct. 30, 280 U.S. 575, 74 L.Ed. 626. Trusts 102(2)

A bill to declare respondent a trustee for complainants of an interest in an estate, and to set
aside a decree of distribution confirming the estate in respondent, under deeds made by
decedent, being brought 20 years after the execution of the deeds, 17 years after the notification
of the adverse claim, and 11 years after the entry of the probate decree, and after the death of
some of the original parties and many of the witnesses, was, in the absence of clear proof of
fraud, properly dismissed. Dugan v. O'Donnell, 1895, 68 F. 983. Equity 73; Trusts 365(2)

Where employees allegedly invented apparatus and method for assembling writing instruments,
unconscionably concealed filing of patent application and left employment and formed new
corporation, and patent was issued to new corporation as assignee, but employer did not claim
patent ownership until filing leave to intervene in new corporation's patent infringement action
nearly four years later, intervention claim was barred by California three-year period of
limitations in view of constructive notice of fraud from public records. Hartley Pen Co. v. Lindy
Pen Co., S.D.Cal.1954, 16 F.R.D. 141, 102 U.S.P.Q. 151. Limitation Of Actions 100(13)

Action by administratrix with will annexed to set aside sale of land made by public administrator
on ground of fraud ten years after will was admitted to probate at which time administratrix
discovered fraud was barred by three-year statute of limitations. McCarthy v. Mitchell (App.
1942) 54 Cal.App.2d 173, 128 P.2d 681. Executors And Administrators 380(2)

Where complaint, seeking to quiet title to stock in company incorporated April 18, 1931, alleged
that stock was issued by corporation to defendant under agreement between plaintiff and
defendant that defendant was to transfer stock to plaintiff at later time, that defendant never
affirmatively repudiated his trust, that in May, 1936, defendant procured a purported
relinquishment of plaintiff's interest in stock by means of fraud, and that such fraud was not
discovered by plaintiff until December 19, 1939, and the suit was commenced within a few
months after date on which alleged fraud was discovered, complaint did not show on its face that
it was barred by statute of limitations or “laches”, regardless of whether facts alleged constituted
a voluntary or involuntary trust. Truesdail v. Lewis (App. 3 Dist. 1941) 45 Cal.App.2d 718, 115
P.2d 218. Limitation Of Actions 179(2); Quieting Title 29
One named as beneficiary by testatrix had no interest in testatrix' property during testatrix' life
which would give beneficiary any reason to investigate a deed and assignment to testatrix' son of
her interest in her deceased husband's estate allegedly obtained from testatrix by her son
through fraud, and hence was not guilty of “laches” which would preclude her from bringing an
equitable action after death of testatrix to have a trust imposed on the property in the hands of
the son of testatrix. Crow v. Madsen (App. 4 Dist. 1941) 111 P.2d 7, rehearing granted, vacated
111 P.2d 663.

Action to impress trust on property, brought over nine years after conveyance and about five
months after plaintiff had notice of alleged fraud, was commenced seasonably. Neilsen v. Neilsen
(1932) 216 Cal. 150, 13 P.2d 715. Trusts 365(2)

Finding was warranted against claim of laches on part of plaintiff in suing to establish
constructive trust in property purchased with assets of partnership consisting of himself and his
son, to which title was fraudulently taken in name of the son's wife, where delay was at son's
request to facilitate reconciliation between the son and the wife. Calkins v. Calkins (App. 3 Dist.
1923) 63 Cal.App. 292, 218 P. 611. Trusts 365(5)

119. Set-off, fraud cases

In action for a reconveyance of property conveyed by heirs at law of an estate to a corporation

organized by relatives of deceased to acquire property of his estate as part of a plan to defraud
the heirs, and for an accounting, relatives were not entitled to offset alleged personal loans to
one of the heirs who later died but remedy was by claim presented to that heir's executor or
administrator. Young v. Young Holdings Corp. (App. 4 Dist. 1938) 27 Cal.App.2d 129, 80 P.2d
723. Trusts 362

120. Presumptions of fraud

Where transferee, seeking imposition of constructive trust under California law on funds it
received from commingled bank account of Chapter 7 debtor-parent company, made no showing
that the transfers consisted of funds that had been wrongfully diverted from nondebtor-
subsidiary, as opposed to funds that debtor lawfully earned as compensation or commissions
from subsidiary, Court of Appeals had to adopt presumption that the payments were made with
debtor's property and, thus, they might be avoided by trustee as preferential or fraudulent
transfers. In re Advent Management Corp., C.A.9 (Cal.)1997, 104 F.3d 293. Bankruptcy
2726(3); Bankruptcy 2726(4)

In action by son against mother to quiet title to four parcels of real property which mother
contended were held in trust, wherein it appeared that son had acquired one tract by gift deed
for purported purpose of equalizing gifts of mother to children, and another tract upon
assumption of indebtedness of mother, and two other tracts by deeds from mother to three
children and purchase by son of shares of other children, evidence warranted finding that the
conveyances were supported by ample consideration within meaning of rule raising presumption
of fraud and undue influence where property is transferred without consideration and confidential
relationship exists. Stoner v. Laidley (App. 1 Dist. 1953) 118 Cal.App.2d 50, 257 P.2d 486.
Trusts 110

Rule that there is no presumption of fraud was inapplicable where a confidential relationship
existed between assignors and assignees of lease, so that oral promise to reconvey leasehold
interest on demand would be enforced. Rahim v. Akbar (App. 1949) 92 Cal.App.2d 383, 207 P.2d
80. Trusts 107

Where the parties to a contract stand in a confidential relation, inadequacy of price will raise a
presumption of fraud. Herbert v. Lankershim (1937) 9 Cal.2d 409, 71 P.2d 220. Contracts
99(1)

That grantor did not seek independent advice in making deeds does not create presumption of
fraud by grantee daughter, where evidence showed grantor acted voluntarily with knowledge.
Best v. Paul (App. 1 Dist. 1929) 101 Cal.App. 497, 281 P. 1089. Deeds 196(3)

Advanced age of grantor is insufficient to raise presumption deed to grantee was procured by
fraud. Best v. Paul (App. 1 Dist. 1929) 101 Cal.App. 497, 281 P. 1089. Deeds 196(2)

Where it is asserted that a conveyance was subject to a parol trust, and it appeared that the
grantor, who was the father of the grantee, was an elderly man, and that a relation of business
confidence existed between them, the transaction, being beneficial to the son, will be viewed
with most scrutinizing care, and the presumption of fraud arises. Mead v. Mead (App. 1919) 41
Cal.App. 280, 182 P. 761. Trusts 107

Where land is conveyed by a husband to his wife, who orally agrees to hold it subject to a trust,
a subsequent failure by her to observe the trust will raise a presumption of fraud on her part in
obtaining the conveyance which will establish a constructive trust in favor of the beneficiaries in
the agreement. Hayne v. Hermann (1893) 97 Cal. 259, 32 P. 171. Trusts 96

121. Burden of proof, fraud cases

In action for a reconveyance of property conveyed by the heirs at law of an estate to a

corporation organized by relatives of deceased to acquire property of the estate as part of a plan
to defraud the heirs, relatives who sought to forestall relief until reimbursed for alleged
expenditures on behalf of the corporation had burden of proving the expenditures. Young v.
Young Holdings Corp. (App. 4 Dist. 1938) 27 Cal.App.2d 129, 80 P.2d 723. Trusts 372(1)

If relation of attorney and client existed, burden, in suit to declare trust, was on attorney to
negative fraud in transaction in which he obtained property from deceased. Carlson v. Lantz
(1929) 208 Cal. 134, 280 P. 531. Trusts 107

Son has burden to prove conveyance without consideration from aged and mentally enfeebled
father was not procured by fraud. Anderson v. Nelson (App. 2 Dist. 1927) 83 Cal.App. 1, 256 P.
294. Deeds 196(3)

Under certain circumstances, as where parent is of great age or enfeebled, child as grantee of
parent has burden to show that deed was obtained without fraud. Wilbur v. Wilbur (1925) 197
Cal. 1, 239 P. 332. Deeds 196(2)

122. Evidence, fraud cases

In bankruptcy proceeding, where it appeared that a creditor had extended credit on basis of
bankrupts' representation that they were owners of California realty which they held naked legal
title to, petitioner, who asserted that he had conveyed realty to the bankrupts, his daughters, in
trust to be managed for his benefit, should have been permitted to adduce evidence relating to
details of the arrangement, and to prove that he did not authorize the representations and that
he had no knowledge that representations were being made. In re Rogal, S.D.Cal.1953, 112
F.Supp. 712. Bankruptcy 2725.1

Fraud may be proved by circumstantial evidence of a repudiation of a trust by trustee and

attempted retention by trustee of trust res, the intention not to perform being a matter of
inference from the facts proven. Jarkieh v. Badagliacco (App. 1946) 75 Cal.App.2d 505, 170 P.2d
994. Trusts 108

To establish trust ex maleficio, fraud must be shown by clear and satisfactory proof. Suytar v.
Weineke (App. 3 Dist. 1930) 109 Cal.App. 589, 293 P. 649. Trusts 110

In a proceeding to declare that a sole distributee under a will holds the property with
constructive trust for the heirs, on the ground of fraudulently deceiving testator into thinking his
will had been destroyed, as he requested of distributee, the fraud must be clearly and
satisfactorily proven. Brazil v. Silva (1919) 181 Cal. 490, 185 P. 174. Trusts 110

Where a complaint alleges that plaintiff deposited money with defendant, to be loaned by the
latter, and its appropriation by defendant, and his refusal to account therefor, and defendant
pleads a general denial and a counterclaim alleging an account current, closed by an account
stated, showing a balance in his favor, and asks judgment for such balance, it is error, as not
being within the issues, to allow plaintiff to give evidence that defendant sold and retained the
proceeds of land to which he held the legal title in trust for plaintiff, and misrepresented the price
received for other lands belonging to plaintiff, though the proceeds of the sale of such lands is
the deposit in controversy. Nichols v. Randall (1902) 136 Cal. 426, 69 P. 26. Trusts 371(8)

In an action to have a trust as to certain real and personal property declared and enforced,
where plaintiff alleged that, being so far deranged that he was entirely incompetent to transact
any business, he was induced to convey the property to defendant by his false and fraudulent
representations that he would take care of and manage it, pay off plaintiff's debts, and then
retransfer the property to plaintiff; that there was no other consideration; that defendant knew
the representations to be false and untrue, and made the same with intent to deceive and
defraud plaintiff, parol evidence was admissible to prove the allegations tending to establish the
fraudulent acts. Hays v. Gloster (1891) 88 Cal. 560, 26 P. 367. Trusts 109

123. Judgment or decree, fraud cases

Where decedent conveyed apartment to brother by simple grant deed delivered to him and
recorded but no consideration was stated therein and none was given, and brother was in
confidential relation to deceased, and accepted deed with the knowledge and understanding that
the deceased and her sister should have a beneficial life interest in the property, brother's
subsequent ouster of sister and assumption of absolute ownership in contravention of the trust
upon which he held premises constituted the fraud upon which a constructive trust arose in favor
of the sister. Casey v. Casey (App. 1 Dist. 1950) 97 Cal.App.2d 875, 218 P.2d 842. Trusts 96

A property transfer, obtained through grantee's actual or constructive fraud, will be set aside at
grantor's instance, and grantee will be deemed to hold property as constructive trustee for
grantor. Leathers v. Leathers (App. 1946) 77 Cal.App.2d 134, 174 P.2d 875. Sales 43(6);
Trusts 95

A tenant who agreed to protect landlords for period of lease against foreclosure of trust deed and
to advance the money and buy the property at foreclosure sale and hold the property for
landlords, and who purchased at foreclosure sale and refused to convey to landlords offering to
repay tenant, held the land subject to constructive trust resting on fraud or wrongdoing. Rankin
v. Satir (App. 1946) 75 Cal.App.2d 691, 171 P.2d 78. Trusts 100

The purpose of decree declaring a constructive trust is to defeat or prevent fraud. Adams v.
Bloom (App. 1 Dist. 1943) 61 Cal.App.2d 315, 142 P.2d 775. Trusts 91

In daughter's suit to declare a voluntary trust in property, conflicting evidence supported

judgment for daughter based on finding that property was transferred to father in trust for the
benefit of daughter with agreement that property was to be restored on request and that such
transfer was procured by means of fraud practiced by father. Forman v. Goldberg (App. 1941) 42
Cal.App.2d 308, 108 P.2d 983. Trusts 44(2); Trusts 110

This section, providing that “one who gains a thing by fraud is an involuntary trustee of the thing
gained for the benefit of the person who would otherwise have gained it,” if covering property
gained by a judicial decree, applies only where the fraud is such as would justify a court of equity
in setting aside the decree. Mulcahey v. Dow (1900) 131 Cal. 73, 63 P. 158. Trusts 94.5

124. Particular fraudulent cases

Where defendant, real estate broker, falsely represented to plaintiff's agent that defendant had
been given an exclusive listing by owner, and plaintiffs through their agent submitted to
defendant their offer to purchase at $4,000 per acre and a second offer to purchase at $5,000
per acre, and defendant did not present offers to owner but purchased from owner at $4,000 per
acre and resold to plaintiffs at $5,000 per acre, and in all the negotiations the plaintiffs dealt at
arm's length with defendant through their agent and defendant never purported to act for
plaintiffs, defendant violated his statutory duty as real estate broker to be honest and truthful in
his dealings, and even though defendant was not plaintiff's agent and there was no fiduciary
relief between plaintiffs and defendant, public policy did not permit defendant to take advantage
of his own wrong and the law provided plaintiffs with a quasi-contractual remedy to prevent
defendant from being unjustly enriched at expense of plaintiffs, and defendant was involuntary
trustee for benefit of plaintiffs to the extent of defendant's secret profit of $1,000 per acre, and
plaintiffs could recover such profit, even though the property may have been worth $5,000 per
acre. Ward v. Taggart (1959) 51 Cal.2d 736, 336 P.2d 534. Brokers 4; Brokers 100; Trusts
101

Where plaintiff intrusted contract for purchase of land to one who forged an assignment to
himself and made purported assignment to defendants, who paid the balance of the price and
received a deed, plaintiff was entitled to have constructive trust declared in her favor under this
section. Burns v. Ross (1923) 190 Cal. 269, 212 P. 17. Trusts 95

Where, by fraud, defendant obtained money from plaintiff and therewith paid part of the
purchase price of an automobile for a contract of sale to him on the installment plan, plaintiff
could impress a constructive trust, arising from defendant's fraud upon such contract. Carter v.
Holt (App. 1915) 28 Cal.App. 796, 154 P. 37. Trusts 95

In an action by a daughter against her parents to recover possession of land, where a cross-
complaint averred that the mother owned the land in question subject to a mortgage; that
defendants were old and infirm, and had no property save this land; that it was difficult for them
to make a living; that plaintiff, their daughter, promised that if defendants would convey the land
to her she would pay the mortgage, and defendants should retain the premises as their home as
long as they lived, and they, through having confidence in her and relying on her statements and
promises, executed a deed conveying the property to her; that the statements of plaintiff were
false, and made with the intent to deceive; and that plaintiff had violated her trust, findings
warranted a decree that plaintiff held the land in trust for the mother during the life of the
mother, and should execute a deed conveying the land to her for life. Crabtree v. Potter (1907)
150 Cal. 710, 89 P. 971. Trusts 103(2)

Where money was borrowed from plaintiff to purchase cattle, borrower promising to repay the
money, together with a share of the profits, out of the proceeds of sale thereof, but these
representations were fraudulently made to obtain the money without the intention of repaying it,
and cattle were purchased, and soon resold for about the price paid, and out of the proceeds
borrower gave his wife nearly one-half, and paid the remainder to plaintiff, and soon thereafter
borrower purchased land with $2,000 of the money so given to his wife, taking the deed in her
name and she took the money and deed with full knowledge of all the facts, plaintiff had an
equitable lien on the cattle so purchased and in the proceeds of the sale, though invested in
land, the fund being held by borrower in a fiduciary character. Citizens' Bank of Paso Robles v.
Rucker (1903) 138 Cal. 606, 72 P. 46. Trusts 356(1)

Where testator's widow, who was executrix under his will devising property to his children,
conspired with her own son, but not the son of testator, to procure for him a share of the estate
as one of the testator's children, and probate court decreed that such son was a son of the
testator and entitled to a portion of the estate, and testator's infant children had no actual notice
of the fraud, and were not represented in the proceedings, except by the executrix as their
testamentary trustee and natural guardian, though a court of equity had no jurisdiction to set
aside the decree of the probate court, it would decree that such son held the title as trustee for
the testator's minor children, and compel him to make conveyance to them accordingly. Sohler
v. Sohler (1902) 135 Cal. 323, 67 P. 282. Judgment 443(1); Trusts 103(2)

Where husband testified that, several years before, being about to be absent for several years,
and wishing to provide for his wife in case of his death, he had conveyed to her, instead of
making a will, certain lands, induced by his confidence in her; that she promised to reconvey
same to him in the event of his return; and that he intended that she should receive a beneficial
interest therein in case he should die before returning and the lawyer who drew the deed swore
that he stated to her the reasons why her husband was about to make the deed, and that she
promised to reconvey to him on his return, such evidence was sufficient to support a finding that
plaintiff was induced to make such deed by his confidence in his wife, and that he made it with
the distinct understanding that in the event of his return she would reconvey the property to
him, and that she was to receive a beneficial interest therein only in case he died before
returning. Brison v. Brison (1891) 90 Cal. 323, 27 P. 186.

125. Particular nonfraudulent cases

Evidence would not sustain finding that defendant had acquired plaintiff's interest in lease by
fraud. Weightman v. Hadley (App. 1952) 113 Cal.App.2d 598, 248 P.2d 801. Trusts 110
In action by former owners of interest in oil and gas prospecting permit, who had signed two
disclaimers of interest in permit, for accounting, and for declaration of trust on ground that they
had been fraudulently induced to sign disclaimers, and for declaratory relief, evidence was
insufficient to establish any fraud, undue influence, or unjust enrichment which would support
assertion of a constructive trust or resulting trust. Anderson v. Stansbury (1952) 38 Cal.2d 707,
242 P.2d 305. Trusts 89(1); Trusts 110

In divorced wife's action to quiet title to realty which wife had deeded to husband as his separate
property at time of parties' divorce but which wife thereafter purchased from city after
foreclosure of realty for a delinquent street assessment bond, evidence sustained finding that no
fraud was perpetrated by wife as ground for enforcing trust in husband's favor. Philp v. Hobart
(App. 1951) 103 Cal.App.2d 446, 229 P.2d 783. Trusts 110

In action to declare trust in real property defendant purchased at foreclosure sale, on theory
defendant promised to redeem property for plaintiff, evidence did not establish trust ex
maleficio. Suytar v. Weineke (App. 3 Dist. 1930) 109 Cal.App. 589, 293 P. 649. Trusts 110

Housekeeper, terminating services without fraud, did not hold property under constructive trust
after conveyance, based on valuable consideration, by plaintiff to himself and housekeeper
jointly. Dalbkermeyer v. Rader (App. 1 Dist. 1928) 96 Cal.App. 23, 273 P. 600. Trusts 91

In suit to establish trust, evidence sustained finding that administrator's sale to defendant was
not fraudulently procured. Johnston v. Kitchin (1928) 203 Cal. 766, 265 P. 941. Trusts 110

Evidence showed that, when defendant purchased premises without consideration, other than an
agreement to pay off the mortgage, he practiced no fraud or deceit, that the transfer was
voluntary on plaintiffs' part, to prevent a purchaser of first mortgage from securing the property,
on which plaintiffs had foreclosed a junior mortgage by sale, and wholly insufficient to establish a
constructive trust. Carter v. Blenkiron (App. 2 Dist. 1920) 46 Cal.App. 425, 189 P. 305. Trusts
110

There was no fraud against devisees, giving rise to a constructive trust, from the fact that, in the
distribution of the estate, under a compromise agreement, under which there was decreed to an
attorney, who had previously represented heirs given nothing by the will, the residue, known or
hereafter known, such attorney failed to disclose his knowledge, acquired from papers in the
executors' possession, of lands belonging to the estate but not listed. Heydenfeldt v. Osmont
(1918) 178 Cal. 768, 175 P. 1. Trusts 103(4)

Where a mortgage of an incompetent mortgagor for whom a guardian had been appointed was
foreclosed, the guardian was a party defendant, was served with process, and permitted a
default judgment and a sale, and the purchaser at the sale conveyed the property to a son of the
mortgagor, and there was nothing to show that the son had any money of the incompetent with
which he could have paid the mortgage or redeemed, or that he had any knowledge of the
mortgage or the foreclosure proceedings prior to his purchase and the guardian relied on the
son, who agreed to protect and preserve the property of the incompetent, which promise was
made after the appointment of the guardian and before foreclosure proceedings, the son was not
guilty of any fraud in the purchase of the property which would impress it with a trust in favor of
the mortgagor or the other children on the mortgagor's death. Perreau v. Perreau (App. 1909)
12 Cal.App. 122, 106 P. 728. Trusts 100
Where a husband's separate deed to his wife of property occupied by them as their homestead,
in consideration of her promise to hold the same for another after her death, did not increase the
wife's estate in the property on her surviving her husband, she did not hold the same under a
constructive trust, under this section, creating a constructive trust in property “acquired by
fraud.” Loomis v. Loomis (1905) 148 Cal. 149, 82 P. 679. Trusts 96

126. Damages, fraud cases

Where jury was instructed both on theory of ordinary fraud and on fraud or breach of trust by a
fiduciary but the only damages instruction was one applicable to breach of fiduciary duty, failure
to give requested instruction on measure of damage for ordinary fraud was reversible error since
evidence was conflicting as to whether fiduciary relationship had terminated; new trial was
required on issue of both compensatory and punitive damages, especially since trial court
erroneously instructed on law of punitive damages. Liodas v. Sahadi (1977) 137 Cal.Rptr. 635,
19 Cal.3d 278, 562 P.2d 316. Appeal And Error 1067; Appeal And Error 1178(6); Fraud
65(1)

Where trustees have acquired property by virtue of a breach of their fiduciary duty of loyalty to a
beneficiary, the beneficiary may proceed against them personally to recover damages for the
fraud or may charge them as constructive trustees of the property for his own benefit as rightful
owner. Kenny v. Citizens Nat. Trust & Savings Bank of Los Angeles (App. 2 Dist. 1954) 269 P.2d
641, hearing granted, dismissed.

In action to establish a constructive trust, where there was some evidence of fraud, award of
$500 exemplary damages was not unjust or unreasonable. Rivero v. Thomas (App. 1 Dist. 1948)
86 Cal.App.2d 225, 194 P.2d 533. Trusts 374

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While a lien is imposed upon property to insure performance of a designated act such as
payment of trust funds, “exemplary damages” are awarded as an example to others to refrain
from fraud in performance of a trust and the imposition is distinct from basis of action for
enforcement of trust, consequently such award cannot be secured by lien without special
statutory provision. Rivero v. Thomas (App. 1 Dist. 1948) 86 Cal.App.2d 225, 194 P.2d 533.
Trusts 340; Trusts 374

Though complaint pleading fraud and deceit by purchaser at foreclosure sale in contracting to
permit mortgagor to continue living in her mortgaged home authorized recovery under this
section, against purchaser as involuntary trustee, prayer for damages, court's conclusions, and
judgment stamped it as one for damages, barring recovery on trustee theory. Westervelt v.
McCullough (App. 2 Dist. 1924) 68 Cal.App. 198, 228 P. 734. Action 22; Judgment 249

127. Equitable relief without fraud

Where there is extrinsic fraud in procuring distribution of property, equity, while it will not
normally annul the decree because of the exclusive nature of probate jurisdiction, will hold the
distributee to be a constructive trustee for those who have been prevented by fraud from
appearing or from presenting their cases. Stevens v. Torregano (App. 1 Dist. 1961) 13 Cal.Rptr.
604, 192 Cal.App.2d 105. Trusts 95

Where deceased, in fear of death, executed to an agent certain conveyances and assignments of
mortgages, to be disposed of by him as she directed, and he converted such property to his own
use, relief could be had in equity, though there had been no fraud in the procurement of the
instruments. Kimball v. Tripp (1902) 136 Cal. 631, 69 P. 428. Trusts 96

III. UNDUE INFLUENCE

<Subdivision Index>

In general 181
Burden of proof 185
Defenses 183
Extrinsic fraud 182
Interest 188
Particular involuntary trusts
Particular involuntary trusts - Undue influence absent 187
Particular involuntary trusts - Undue influence present 186
Particular undue influence cases 186, 187
Particular undue influence cases - Undue influence absent 187
Particular undue influence cases - Undue influence present 186
Presumptions of undue influence 184
Undue influence absent 187

181. In general
In suit to cancel mother's bill of sale of farm machinery to her son and impress trust for mother
on property sold on ground that bill was procured through undue influence over mother, general
findings that mother was not dominated by son and that no confidential relationship existed
between them were not inconsistent with specific findings that son's false representation that bill
was merely security against loss on lease of farm to him by mother was fraudulent, constituted
undue influence, and overcame mother's will, in view of showing that general findings applied
only to farm lease and mother's assignment to son of interest in hogs on farm. Leathers v.
Leathers (App. 1946) 77 Cal.App.2d 134, 174 P.2d 875. Cancellation Of Instruments 53;
Trusts 373

If a trust is revoked as a result of undue influence, the beneficiary may hold those who received
the property gratuitously from the trustor as constructive trustees, even though such persons did
not participate in the undue influence. Hughes v. First Nat. Bank in Oakland (App. 1 Dist. 1941)
47 Cal.App.2d 547, 118 P.2d 309. Trusts 95

In determining whether mother was acting under undue influence of her son when she executed
deed conveying to son as trustee for her benefit mother's interest as joint tenant in land and also
executed assignment of certain securities to same trustee, “confidential relationship” existing
between parent and child requires trial judge to weigh evidence with the utmost scrutiny in order
to determine the matter in accordance with equity and fair dealing. Reiss v. Reiss (App. 4 Dist.
1941) 45 Cal.App.2d 740, 114 P.2d 718. Trusts 49

Where son, who was coexecutor and cotrustee under trust created for benefit of mother under
father's will obtained money from mother by undue influence, son could not complain that sums
for which he was ordered to account were duplicated and certain credits to which he was entitled
were withheld in absence of anything to show duplication. Tretheway v. Tretheway (1940) 16
Cal.2d 133, 104 P.2d 1033. Trusts 372(1)

Where son, who was cotrustee with mother under trust created by father's will, withdrew sums
from a joint bank account in his name, and that of his mother, presumption arising from
confidential relationship of son to his mother and fact that her strength was impaired mentally
and physically and that she was under his undue influence, coupled with evasive statements and
inability to account for funds withdrawn or to recall the use to which they were put, justified trial
court in concluding that purpose in opening a joint account was to enable the son to have access
to mother's money for his own purposes without necessity of having her sign for its withdrawal,
notwithstanding that son's testimony with respect to the disposition of funds withdrawn was
uncontradicted. Tretheway v. Tretheway (1940) 16 Cal.2d 133, 104 P.2d 1033. Trusts 372(3)

The rule that equity will not grant relief to a person who has made a conveyance to defraud his
creditors has no application to a case where the deed was procured by fraud or undue influence
of the grantee, this section declaring that one who gains a thing by fraud or undue influence
takes as trustee for the grantor. Donnelly v. Rees (1903) 141 Cal. 56, 74 P. 433. Fraudulent
Conveyances 172(3)

182. Extrinsic fraud, undue influence

Action in equity will lie to have beneficiary of will procured by undue influence declared to be
trustee because of extrinsic fraud in securing probate of will. Zaremba v. Woods (App. 3 Dist.
1936) 17 Cal.App.2d 309, 61 P.2d 976. Trusts 359(2)
183. Defenses, undue influence

In action to establish a constructive trust in favor of plaintiff to a one-half interest in personal

property in defendant's possession, defendant could not rely on defense of undue influence
exerted over defendant by plaintiff where defendant suffered no detriment by any influence
exerted by plaintiff. Tobola v. Wholey (App. 1946) 75 Cal.App.2d 351, 170 P.2d 952. Trusts 49

184. Presumptions of undue influence

Where funeral director admitted enough to show that a confidential relationship existed between
himself and testatrix, such circumstances, together with the obvious advantage gained by the
funeral director when testatrix made him a cotenant in a bank account containing some $35,000,
triggered the presumption that the funeral director received legal title as a surviving joint tenant
under undue influence and, on that basis alone, the imposition of a constructive trust on the
funds in the joint account was appropriate. Estate of Aiello (App. 2 Dist. 1980) 165 Cal.Rptr.
207, 106 Cal.App.3d 669. Trusts 30.5(2)

Under §§ 158 (repealed; see, now, § 5103), 2231, 2235, and this section, conveyance by
husband to wife, in view of their confidential relations, is presumed to be not only without
sufficient consideration, but the result of undue influence. Williamson v. Williamson (App. 1919)
41 Cal.App. 721, 183 P. 301. Deeds 196(3)

185. Burden of proof, undue influence

In action brought by one child of a decedent against remaining child of decedent for decree that
defendant held realty conveyed to defendant by decedent in trust for plaintiff as administrator of
decedent's estate, plaintiff had burden to prove undue influence allegedly exercised upon
decedent by defendant by clear, satisfactory and convincing evidence. Pailhe v. Pailhe (App.
1952) 113 Cal.App.2d 53, 247 P.2d 838. Trusts 372(3)

Where a confidential relation exists, and one of parties to relationship has shown great activity in
procuring the execution of instruments by which he or she greatly benefits by the transaction,
activity of such person becomes an important factor for court or jury to consider in determining
whether transaction was free from undue influence, and if such relations are found to exist,
burden of showing that no undue advantage was taken shifts to the other side. Kent v. First
Trust & Savings Bank of Pasadena (App. 1950) 101 Cal.App.2d 361, 225 P.2d 625. Trusts 107

In action against executor of estate to recover on a rejected claim on a promissory note signed
by a decedent, evidence established as a fact that relationship between plaintiff and decedent
was a confidential one, and burden was upon plaintiff to overcome presumption of undue
influence by evidence that would be clear, positive, uncontradicted and of such a nature that it
could not rationally be disbelieved. Kent v. First Trust & Savings Bank of Pasadena (App. 1950)
101 Cal.App.2d 361, 225 P.2d 625. Trusts 107

In daughter's suit to declare a voluntary trust in property transferred to father, where existence
of confidential relationship between father and daughter was established and property was
shown to have been transferred to father for daughter's benefit and by father invested and
handled to his profit for six years without an accounting, burden shifted to father to show that
transaction was fair and free from undue influence or fraud. Forman v. Goldberg (App. 1941) 42
Cal.App.2d 308, 108 P.2d 983. Trusts 110
186. Particular undue influence cases--Undue influence present

In action brought by one child of a decedent against remaining child of decedent for decree that
defendant held realty conveyed to defendant by decedent in trust for plaintiff as administrator of
decedent's estate, evidence justified findings that decedent was suffering from severe illnesses,
that defendant had falsely represented that defendant would care for decedent for remainder of
decedent's life, and would relieve decedent of cares and worries in consideration of conveyance,
that representations were false, and not performed, that decedent placed highest trust in
defendant, and that defendant exercised undue influence upon decedent. Pailhe v. Pailhe (App.
1952) 113 Cal.App.2d 53, 247 P.2d 838. Trusts 372(3)

Where mother through undue influence caused daughter to execute will excluding daughter's
husband, who dismissed contest of wife's will and petition for removal of mother as guardian of
daughter's estate on sole consideration of oral promise of mother to will husband equivalent of
daughter's estate and niece of mother used undue influence to obtain her realty and to be
named in will as sole heir, constructive trust was properly imposed upon parcel of realty to which
niece held title to extent of husband's claim. West v. Stainback (App. 2 Dist. 1952) 108
Cal.App.2d 806, 240 P.2d 366. Trusts 95

In executor's suit to compel reconveyance of realty which aged grantor had conveyed to
defendant, who thereafter conveyed to codefendant, evidence warranted judgment for executor
on ground that defendant had been a confidential advisor to grantor and that grantor by reason
of such fiduciary relationship executed deed to defendant without sufficient consideration and
under undue influence and without a purpose to divest herself of ownership, and that defendant
took realty as a constructive trustee for grantor and that codefendant was aware of trust and
took title in violation thereof. Sampson v. Bruder (App. 2 Dist. 1941) 47 Cal.App.2d 431, 118
P.2d 28. Trusts 110

Where son, who was executor and cotrustee under a trust created by father's will for benefit of
mother, was shown to have obtained mother's funds by use of undue influence, and there was
evidence that son deliberately attempted to confuse his mother's affairs and commingle her
property with his to such an extent that no asset could with certainty be proved to belong to
either of them, evidence was sufficient to establish son's status as constructive trustee charged
with the duty to account fully with respect to his handling of mother's affairs. Tretheway v.
Tretheway (1940) 16 Cal.2d 133, 104 P.2d 1033. Trusts 372(3)

Where the grantee in a deed procured it by fraud and undue influence from his brother, the
grantor, while he was, by reason of weak mind and intoxication, incompetent to transact any
business, such grantee became a trustee for the grantor, under this section and § 2219,
providing that any one who voluntarily assumes a relation of personal confidence with another is
deemed a trustee to the person over whose affairs he thereby obtains any control. More v. More
(1901) 133 Cal. 489, 65 P. 1044, modified 133 Cal. 496, 66 P. 76. Trusts 103(2)

187. ---- Undue influence absent

In action by son against mother to quiet title to four parcels of real property, wherein mother
sought to have declaration that son held properties in trust for her, evidence sustained finding
that although a confidential relationship existed between the parties, the son had used no undue
influence, and not advised mother, but that mother had relied and acted upon the advice of
other members of her family, including her son-in-law who was a lawyer, when making
conveyances to son and other children. Stoner v. Laidley (App. 1 Dist. 1953) 118 Cal.App.2d 50,
257 P.2d 486. Trusts 110
In suit to establish that real estate conveyed by father to daughter was subject to a trust in favor
of father's heirs, evidence was insufficient to establish that father and daughter stood in a
confidential relationship, or that deed was procured by daughter by exertion of any pressure or
undue influence. Spaulding v. Jones (App. 1953) 117 Cal.App.2d 541, 256 P.2d 637. Trusts
110

In action by former owners of interest in oil and gas prospecting permit, who had signed two
disclaimers of interest in permit, for accounting, and for declaration of trust on ground that they
had been fraudulently induced to sign disclaimers, and for declaratory relief, evidence was
insufficient to establish any fraud, undue influence, or unjust enrichment which would support
assertion of a constructive trust or resulting trust. Anderson v. Stansbury (1952) 38 Cal.2d 707,
242 P.2d 305. Trusts 89(1); Trusts 110

In action to cancel deed whereby decedent conveyed to her son, in trust for her benefit,
decedent's interest in land held in joint tenancy with husband, who was stepfather of trustee,
and to cancel assignment of securities to same trustee, evidence disclosing that grantee had the
opportunity to influence his mother, coupled with desire to terminate a joint tenancy in order
that mother might be free to dispose of property as she desired, would not sustain finding of
“undue influence”. Reiss v. Reiss (App. 4 Dist. 1941) 45 Cal.App.2d 740, 114 P.2d 718. Trusts
49

188. Interest, undue influence

In action by promisee to impress constructive trust upon real property, title of which was held by
defendant, to effect performance of oral promise of defendant's predecessor in interest to will to
promisee equivalent of estate of promisee's wife, where defendant niece had obtained promisor's
property through undue influence but had no knowledge of oral agreement, award of interest
only from date of entry of judgment in favor of promisee was not abuse of discretion. West v.
Stainback (App. 2 Dist. 1952) 108 Cal.App.2d 806, 240 P.2d 366. Trusts 219(2)

IV. VIOLATION OF TRUST

<Subdivision Index>

In general 241
Attorney-client, confidential relationship of parties 247
Breach of contract 243
Brother-sister, confidential relationship of parties 257
Burden of proof 271
Confidential relationship of parties 246-266
Confidential relationship of parties - In general 246
Confidential relationship of parties - Attorney-client 247
Confidential relationship of parties - Brother-sister 257
Confidential relationship of parties - Corporate employee 249
Confidential relationship of parties - Corporate officer 248
Confidential relationship of parties - Creditor-debtor 251
Confidential relationship of parties - Employer-employee 252
Confidential relationship of parties - Executors and administrators 253
Confidential relationship of parties - Family relationship generally 254
Confidential relationship of parties - Fraternal organizations 258
Confidential relationship of parties - Friendship 259
Confidential relationship of parties - Grantor-grantee 260
Confidential relationship of parties - Landlord-tenant 261
Confidential relationship of parties - Mining claim locators 262
Confidential relationship of parties - Original and successor corporations 250
Confidential relationship of parties - Parent-child 256
Confidential relationship of parties - Partnership 263
Confidential relationship of parties - Principal-agent 264
Confidential relationship of parties - Spouses inter se 255
Confidential relationship of parties - Subcontracting relationship 265
Confidential relationship of parties - Testator-beneficiary 266
Corporate employee, confidential relationship of parties 249
Corporate officer, confidential relationship of parties 248
Creditor-debtor, confidential relationship of parties 251
Employer-employee, confidential relationship of parties 252
Evidence 272
Executors and administrators, confidential relationship of parties 253
Existence of trust antedating violation 242
Family relationship generally, confidential relationship of parties 254
Fraternal organizations, confidential relationship of parties 258
Friendship, confidential relationship of parties 259
Grantor-grantee, confidential relationship of parties 260
Landlord-tenant, confidential relationship of parties 261
Limitations and laches 270
Lovers, confidential relationship of parties, violation of trust 259.5
Mining claim locators, confidential relationship of parties 262
Original and successor corporations, confidential relationship of parties 250
Parent-child, confidential relationship of parties 256
Partnership, confidential relationship of parties 263
Pleadings 269
Principal-agent, confidential relationship of parties 264
Remedies of beneficiary 267
Repudiation of trust 244
Spouses inter se, confidential relationship of parties 255
Subcontracting relationship, confidential relationship of parties 265
Testator-beneficiary, confidential relationship of parties 266
Unjust enrichment upon violation of trust 245
Waiver of tort 268

241. In general

Fact that parties were living in an unlawful relation would not affect validity of constructive trust
imposed upon one party in favor of other, in view of fact that immoral relation was not made a
consideration of and did not affect relative rights of parties to contract upon which trust was
based. Estrada v. Garcia (App. 1955) 132 Cal.App.2d 545, 282 P.2d 547. Trusts 362

Statutory provisions relating to the fiduciary duty owed by trustee to beneficiary of trust disclose
a legislative design to inhibit temptation of trustee to use his fiduciary position for personal gain
and to protect beneficiary from any unwholesome influence trustee might wield to obtain
advantage over him, and their practical effect is to place upon fiduciary the burden of
overcoming presumption of fraud and undue influence which arises when, by his conduct in
respect to trust, he has received a seeming advantage over beneficiary. Kenny v. Citizens Nat.
Trust & Savings Bank of Los Angeles (App. 2 Dist. 1954) 269 P.2d 641, hearing granted,
dismissed.
A promise need not be express to raise a trust, but silent acquiescence of grantee is sufficient
where he has knowledge of grantor's intention. Airola v. Gorham (App. 1 Dist. 1942) 56
Cal.App.2d 42, 133 P.2d 78. Trusts 96

Where one gains property by violation of a trust, he becomes an involuntary “trustee” of the
thing gained for the benefit of the persons who otherwise would have possessed it. Angeles
Securities Corp. v. Luton (App. 4 Dist. 1941) 47 Cal.App.2d 262, 117 P.2d 741. Trusts 95;
Trusts 102(1)

Action by decedent's daughter against decedent's husband to have latter declared involuntary
trustee was not premature where husband, in violation of agreement with decedent, had
asserted claim as decedent's heir in procuring letters of administration. Miller v. Forster (App.
1933) 131 Cal.App. 509, 21 P.2d 678. Trusts 365(1)

One receiving money to be paid to owner is accountable therefor, though money is appropriated
to payment of debts of trustor or otherwise diverted. Biurrun v. Elizalde (App. 3 Dist. 1925) 75
Cal.App. 44, 242 P. 109. Trusts 345

This section, providing that one who gains a thing by fraud, undue influence, or the violation of a
trust is, unless he has some other right thereto, an involuntary trustee for the benefit of the
person who would otherwise have had it, authorizes relief in case property was procured by
fraud or undue influence, and where there was no fraud or undue influence in procuring the
property, but a violation of the trust assumed in accepting the property. Donnelly v. Rees (1903)
141 Cal. 56, 74 P. 433. Trusts 95

242. Existence of trust antedating violation

Evidence that buyer of bonds from bank intended to create a trust at some time in the future did
not establish that trust presently existed, so as to make bank liable for violation of alleged trust
duty with respect to purchases made before trust instrument was actually executed. Quinn v.
Central Co., 1939, 104 F.2d 450. Trusts 44(1)

243. Breach of contract

Where plaintiffs entered into agreement with the defendants that plaintiffs would transfer real
property upon their death to defendants for promise to provide plaintiffs with financial support
and physical care during old age, and defendants breached their promise, plaintiffs were no
longer obligated to leave property to defendants, and thus partition of property did not defeat
rights of joint owners which had arisen by such agreement. Lehmann v. Kamp (App. 5 Dist.
1969) 77 Cal.Rptr. 910, 273 Cal.App.2d 701. Partition 14; Wills 67

Action of log owner in removing logs from the county after commencement of a lien foreclosure
action amounted to deliberate destruction of the liens or their value and rendered log owner
liable to lienholder either in tort, contract or trust theory. Division of Labor Law Enforcement v.
Siskiyou Mills (App. 3 Dist. 1964) 40 Cal.Rptr. 111, 229 Cal.App.2d 105. Logs And Logging 31

In action for judgment that defendant held title to property in trust for plaintiff where plaintiff
had defaulted under a trust deed on the property and defendant in consideration for assignment
of trust deed agreed to cure the default thereunder and failed to do so and purchased the
property on sale under the trust deed, a constructive trust arose in favor of the plaintiff. Roberts
v. Salot (App. 1958) 166 Cal.App.2d 294, 333 P.2d 232. Trusts 100

Where defendant's promise to purchase house for plaintiff was made in contemplation of
marriage and upon understanding that he was to be relieved of obligations to support child which
plaintiff had allegedly borne him, constructive trust would be imposed against defendant to
enable plaintiff to obtain the recognition of her beneficial interest in undivided one-half of house
purchased by defendant title to which was in defendant's name, even though none of plaintiff's
money went into the purchase price. Estrada v. Garcia (App. 1955) 132 Cal.App.2d 545, 282
P.2d 547. Trusts 99

In action on contract where it was found that defendant had not breached its contract to supply
plaintiffs with materials from its mine, plaintiffs were not entitled to have the mining held in trust
for their benefit. Davis v. Basalt Rock Co. (App. 3 Dist. 1951) 107 Cal.App.2d 436, 237 P.2d 338,
motion denied 114 Cal.App.2d 300, 250 P.2d 254. Trusts 110

Breach by grantee in confidential relation with grantor of parol promise to hold property for
benefit of third person raised trust, though promise was performed for time. Smith v. Lombard
(1927) 201 Cal. 518, 258 P. 55. Trusts 35(1)

Where one who had contracted to will specific property conveyed it to others, an action brought
before his death to have a trust declared in the property was not prematurely commenced.
Osborn v. Hoyt (1919) 181 Cal. 336, 184 P. 854. Wills 68

244. Repudiation of trust

Under California law, a person may place legal title in another in trust for himself, and the legal
owners will be compelled by the courts to restore title to the property if they repudiate the trust,
except if such restoration of title will prejudice a bona fide purchaser for value without notice, or
if person who caused property to be placed in name of another knew after the transfer, that the
holder of legal title was claiming the property to be his own in order to obtain credit. In re Rogal,
S.D.Cal.1953, 112 F.Supp. 712. Trusts 9

When one is holding as trustee, there can be no adverse possession until trustee repudiates the
trust. Briggs v. Nilson (App. 2 Dist. 1964) 38 Cal.Rptr. 68, 226 Cal.App.2d 342. Trusts 365(1)

In action to impose trust as to undivided one-half interest in certain realty, and for ancillary
relief, evidence sustained finding that plaintiff made down payment on property under oral
agreement that half interest in property would belong to plaintiff, that such agreement was
never repudiated by defendant's testator, in whose name title was taken, and that note and trust
deed executed at time of purchase were intended to, and did, comprise evidence only as to
contribution by plaintiff. Melickian v. Halstead (App. 1 Dist. 1953) 121 Cal.App.2d 469, 263 P.2d
652. Trusts 89(3)

In action to quiet title to land conveyed by defendant to plaintiff, wherein cross-complaint sought
to have declared a constructive trust which arose by operation of law upon plaintiff's repudiation
of oral promise to reconvey the land and because of unjust enrichment, defendant was not
precluded from obtaining relief because no time had been fixed for reconveyance, and
reasonable time had elapsed, since repudiation definitely occurred when plaintiff filed the action
to quiet title. Adams v. Bloom (App. 1 Dist. 1943) 61 Cal.App.2d 315, 142 P.2d 775. Trusts
365(1)

A constructive trust based on repudiation of oral promise to reconvey property does not arise
until transferee repudiates the promise or dies. Steinberger v. Steinberger (App. 1943) 60
Cal.App.2d 116, 140 P.2d 31. Trusts 96

245. Unjust enrichment upon violation of trust

Distribution of trust assets to trustee and residuary beneficiary was proper, and neither trustee
nor beneficiary could be held individually liable for judgment against trust on quantum meruit
cause of action for services rendered to settlor during her lifetime on theory of constructive trust,
where formal creditor claims proceeding was never initiated. Valentine v. Read (App. 1 Dist.
1996) 57 Cal.Rptr.2d 836, 50 Cal.App.4th 787. Trusts 91; Trusts 282; Trusts 339

That transferee agreed to discharge encumbrance on transferred property, to pay transferor's

debts, and to reconvey the property, and that transferee made payments, did not preclude
creation of “constructive trust” on theory that transferee was not unjustly enriched where
promises constituted but one consideration. Adams v. Bloom (App. 1 Dist. 1943) 61 Cal.App.2d
315, 142 P.2d 775. Trusts 103(1)

246. Confidential relationship of parties, violation of trust--In general

“Confidential and fiduciary relations” are, in law, synonymous and may be said to exist whenever
trust and confidence is reposed by one person in the integrity and fidelity of another, and usually
where the relationship exists in fact, if not in law, there is some blood relationship, but this is not
a requisite. South v. Wishard (1956) 303 P.2d 805, 146 Cal.App.2d 276; Coombs v. Minor
(1943) 141 P.2d 491, 60 Cal.App.2d 645.

Courts will go far to find a trust in order to protect a party from the inequitable conduct of an
assignee or grantee, and even in the absence of a tenancy in common or joint adventure the
relationship of the parties may be such as to require the court to impress a trust. Kennedy v.
Seaboard Oil Co. of Del., N.D.Cal.1951, 99 F.Supp. 730. Trusts 102(1)

A confidential relationship, in order to defeat conveyance with intent to defraud creditors, must
be such as to put the parties in pari delicto; if the facts show that the plaintiff is in delicto, but
not in pari delicto, his guilt will not prevent him from obtaining equitable relief. Samuelson v.
Ingraham (App. 1 Dist. 1969) 77 Cal.Rptr. 750, 272 Cal.App.2d 804. Fraudulent Conveyances
101; Fraudulent Conveyances 174(1)

Where trial court was presented with questions of fact concerning relations and intentions of
parties purchasing real estate, as shown by surrounding circumstances, and trial court's
conclusions on such questions were supported by substantial evidence, district court of appeal
was without power to substitute its deductions for those of trial court. Melickian v. Halstead
(App. 1 Dist. 1953) 121 Cal.App.2d 469, 263 P.2d 652. Appeal And Error 996

Mere proof of confidential relationship between grantor and grantee is not sufficient to establish
a trust of property conveyed by deed absolute in form. Kingsley v. Carroll (App. 4 Dist. 1951)
106 Cal.App.2d 358, 234 P.2d 1039. Trusts 103(1)
One holding a confidential relation towards another may not take advantage thereof in favor of
himself or deal with the other upon terms of his own making. In re Kromrey's Estate (App. 1950)
98 Cal.App.2d 639, 220 P.2d 805. Trusts 103(1)

Evidence, showing relationship of trust and confidence between plaintiff and defendant's
decedent and deposit of $2,350 by plaintiff with defendant's decedent under oral agreement that
it was to be held for plaintiff's benefit, established a voluntary trust in which decedent was
voluntary trustee, and, upon death of decedent, defendant, as administratrix of his estate, would
be held accountable to plaintiff. Dalakis v. Paras (App. 1 Dist. 1948) 86 Cal.App.2d 243, 194
P.2d 736. Trusts 110

An oral agreement for purchase of vacant lot by one of parties with his own money and
conveyance of half interest therein to other party gave rise to no constructive trust for such
other party, in absence of confidential or fiduciary relationship. Mazzera v. Wolf (1947) 30 Cal.2d
531, 183 P.2d 649. Trusts 99

In transfer of property, if there is evidence of strong affection, high regard, and great confidence
in business and personal integrity of transferee, relationship demands a high degree of fidelity on
part of transferee. Adams v. Bloom (App. 1 Dist. 1943) 61 Cal.App.2d 315, 142 P.2d 775. Trusts
103(1)

In action to quiet title to property conveyed to plaintiff by defendant, evidence warranted

judgment for defendant on his cross-complaint on theory of a constructive trust on ground that
property had been conveyed when confidential relationship existed between defendant and
plaintiff and property was to be reconveyed to defendant. Adams v. Bloom (App. 1 Dist. 1943)
61 Cal.App.2d 315, 142 P.2d 775. Trusts 110

A “confidential relation” ordinarily arises where one person reposes confidence in another's
integrity and party voluntarily accepting or assuming to accept confidence reposed in him by
another can take no advantage from his acts relating to such other's interest without other's
knowledge or consent. Belling v. Croter (App. 1 Dist. 1943) 57 Cal.App.2d 296, 134 P.2d 532.
Trusts 102(1)

A “constructive trust” arises where one person acquires title to property from another by an
abuse of a fiduciary or confidential relation between them. Sampson v. Bruder (App. 2 Dist.
1941) 47 Cal.App.2d 431, 118 P.2d 28. Trusts 102(1)

One availing himself of influence, arising from confidence naturally reposed in him by another to
obtain advantage of latter, will not be allowed to retain it. Cole v. Manning (App. 1 Dist. 1926)
79 Cal.App. 55, 248 P. 1065. Trusts 102(1)

Evidence, in action by administrator of J. against administrator of E., to establish a trust as to a

half interest in land which J. and E. sold and deeded to W., and which W. being unable to pay the
balance of purchase money deeded to E., the notes and mortgage for such balance being
canceled, was sufficient to overcome any presumption of bad faith of E. in the transactions
arising from his confidential relations with J. Forbes v. Forbes (App. 1919) 41 Cal.App. 365, 182
P. 773. Trusts 110
Special confidence creating a trust relation may exist in cases where there does not exist the
relationship of husband and wife, parent and child, guardian and ward, counsel and client, etc.
Bradley Co. v. Bradley (App. 1918) 37 Cal.App. 263, 173 P. 1011. Trusts 103(1)

Mere proof of confidential relation and want of consideration is insufficient proof that defendant
accepted conveyance under agreement to reconvey to plaintiff. O'Brien v. O'Brien (App. 1913)
21 Cal.App. 620, 132 P. 612. Trusts 107

Under § 2217, defining an “involuntary trust” as one created by operation of law, etc., a person
occupying fiduciary relations will be held to the strictest good faith, and trusts will arise in
vindication of right, not only in the absence of a valid declaration, but even against the desires
and intention of the involuntary trustee. Sanguinetti v. Rossen (App. 1906) 12 Cal.App. 623, 107
P. 560. Trusts 102(1)

Evidence in an action to establish a constructive trust in an irrigation enterprise showed

confidential relations between decedent and defendants. Beckwith v. Sheldon (1908) 154 Cal.
393, 97 P. 867. Trusts 110

247. ---- Attorney-client, confidential relationship of parties

Where fiduciary, an attorney, of realty owners caused title to second deed of rust to be taken in
name of his wife following foreclosure accomplished without notice to owners, although fiduciary
knew of their address, wife held title to property in trust for owners. Calzada v. Sinclair (App. 2
Dist. 1970) 86 Cal.Rptr. 387, 6 Cal.App.3d 903. Trusts 104

Evidence, in suit to establish trust supported finding that attorney had gained advantage over
aged client from whom he had obtained realty. Carlson v. Lantz (1929) 208 Cal. 134, 280 P.
531. Trusts 110

Evidence, in suit to establish trust, showed that attorney and client from whom attorney had
obtained property had not dealt at arm's length. Carlson v. Lantz (1929) 208 Cal. 134, 280 P.
531. Trusts 110

Where attorney had contract lien for contingent fee, substituted attorney, employed on same
terms, became “constructive trustee” of money received in settlement. Tracy v. Ringole (App. 1
Dist. 1927) 87 Cal.App. 549, 262 P. 73. Trusts 103(4)

Attorney for debtor and creditor were trustees of the debtor as to the debtor's undivided half of
property purchased. Kofoed v. Gordon (1898) 122 Cal. 314, 54 P. 1115.

Where K., being in possession of certain land, in order to cure a defect in his grantor's
conveyance, sent a quitclaim deed of the grantor, with an abstract of the title, to W. & L.,
attorneys and searchers of records, with directions for them to procure the execution of such
deed to him, which they undertook to do, and instead of acting as requested, W., procured a
deed to himself and conveyed a half interest to L., W. and L. took the property as trustee for K.,
and would be compelled to convey to him. Webster v. King (1867) 33 Cal. 348. Trusts 101

248. ---- Corporate officer confidential relationship of parties

Impressment of trust upon property held by corporate officer who has attained it through fraud,
either actual or constructive, is a remedy which court of equity may grant in order to provide
restitution to transferor and prevent unjust enrichment to transferee. Efron v. Kalmanovitz (App.
2 Dist. 1967) 57 Cal.Rptr. 248, 249 Cal.App.2d 187. Trusts 95

Where corporate president and assistant secretary caused withdrawal of corporate funds without
corporate authorization for the purpose of making installment payments on the purchase price of
stock which the secretary had purchased from the president, the withdrawals were essentially a
tortious taking imposing a common-law liability because of breach of a fiduciary duty and officers
held funds upon a constructive trust and the trustee in bankruptcy of the corporation was
entitled to recover in behalf of all the creditors. Gray v. Sutherland (App. 1 Dist. 1954) 124
Cal.App.2d 280, 268 P.2d 754. Bankruptcy 3063.1; Trusts 102(1)

If corporate director and manager did not violate his fiduciary duty in purchasing stock in
competing corporation, but was liable in damages for breach of other fiduciary duties, a
constructive trust would not arise concerning the competing corporation's stock which was still in
his own hands or in that of his transferees. Wood v. Gordon (App. 2 Dist. 1952) 112 Cal.App.2d
374, 246 P.2d 84. Trusts 102(1)

In action by corporation against former secretary-treasurer to have him declared constructive

trustee of certain shares of stock, and to recover dividends and redemption price, evidence
justified finding that secretary-treasurer had made no secret withdrawals of corporate funds to
purchase stock, and that act of secretary-treasurer in using an accommodation check of
corporation to purchase stock was not concealed from corporation. Consolidated Produce Co. v.
Pieper (App. 1950) 100 Cal.App.2d 631, 224 P.2d 409. Trusts 110

In corporation's action for declaratory judgment establishing constructive trust for plaintiff's
benefit in patent application by defendant officer of corporation, which was organized to carry on
joint adventure of defendant and others to invent, patent and market air purification devices for
their mutual benefit, evidence supported trial court's finding that defendant wrongfully and
surreptitiously undertook to conceive, in his own behalf, certain improvements and refinements
in device covered by corporation's patent so as to entitle corporation to all benefits of another
patent applied for by defendant and to an accounting by him as trustee. Air Purification v. Carle
(App. 1950) 99 Cal.App.2d 258, 221 P.2d 700. Trusts 110

Where letter, under which dissatisfied stockholders in oil and gas company assigned stock to
stockholders' protective committee, which was to exchange such stock for oil royalties and
royalties for stock in oil company to be organized, expressly provided that a share of the
royalties was to belong to members of the committee for their services, and committeeman,
who, as officer of a corporation, assigned corporation's stock in oil and gas company to
committee, no “express trust” was created with reference to committeeman's royalty share, and,
if there were a trust, committee member held his royalty share for corporation under
“involuntary” or “constructive trust.” Bell v. Bayly Bros. of California (App. 2 Dist. 1942) 53
Cal.App.2d 149, 127 P.2d 662. Trusts 30.5(1); Trusts 102(1)

As to anything that the president of a corporation receives as consideration for a transfer or sale
of its property, a trust, either resulting or constructive, arises in its favor against him. Lezinsky
v. Mason Malt Whisky Distilling Co. (1921) 185 Cal. 240, 196 P. 884, certiorari denied 42 S.Ct.
49, 257 U.S. 637, 66 L.Ed. 409. Trusts 102(1)

249. ---- Corporate employee, confidential relationship of parties

In corporation's suit to quiet title to oil lands and leases and for an accounting, where former
employee acquired part of property in which corporation had been interested in developing oil,
evidence sustained finding that corporation had abandoned the project and all its interest
therein. Medallion Oil Co. v. Hinckley, 1937, 92 F.2d 155. Abandoned And Lost Property 4;
Trusts 110

Where defendant, who had been corporation's director, officer, and attorney, had drawn more
from corporation in salaries and fees than he had contributed to corporation, and had imposed
on deceased stockholder total financial risk in corporation, it was proper to impose a constructive
trust on corporation's stock held by defendant for benefit of deceased stockholder's
representative. Thompson v. Price (App. 4 Dist. 1967) 59 Cal.Rptr. 174, 251 Cal.App.2d 182.
Trusts 102(1)

250. ---- Original and successor corporations, confidential relationship of parties

Evidence that transactions, whereby new company was organized to which was transferred
assets of old company in furtherance of scheme to develop geodetic type airplane, were not
unconscionable or unfair to old company or principal investor therein, and that attorney for
principal investor and originator of geodetic type airplane and the new company did not thereby
secure secret profits and advantages at expense of old company or principal investor, was
insufficient to establish constructive trust in favor of old company and principal investor against
attorney and originator and new company. Plxweve Aircraft Co. v. Greenwood (App. 1 Dist.
1946) 76 Cal.App.2d 346, 173 P.2d 333. Trusts 110

251. ---- Creditor-debtor, confidential relationship of parties

In action to quiet title and for abuse of process in procuring sale of land on execution when it
was known that judgment debtor had no interest in the property, finding that there was no trust
relationship between plaintiff and judgment debtor and that after debtor signed authorization to
title company and it conveyed title to plaintiff, debtor had no further interest in the property, was
sustained by the evidence. Peterson v. Wilson (App. 1948) 88 Cal.App.2d 617, 199 P.2d 757.
Trusts 110

No trust relation exists prior to defendant taking title as security at execution sale under
plaintiff's judgment, notwithstanding prior relation of mutual friendship and of debtor and
creditor, it appearing merely that plaintiff was weak, but not that this incapacitated him from
understanding the effect of the agreement that defendant should so take title. Jacobs v.
Ludemann (1902) 137 Cal. 176, 69 P. 965. Trusts 30.5(2)

Where borrowers of money assigned to lender as collateral security a note and mortgage for a
larger sum on a third party and lender afterwards agreed with borrowers that at the foreclosure
sale of the premises mortgaged he would purchase the property in the names of the borrowers,
and would hold it for their benefit, subject only to a lien for the money loaned and relying upon
this promise, the borrowers took no further interest in the sale; but the lender in his own name
purchased the property for a sum much less than the amount called for in the note, and made
the payment of the purchase by crediting the amount of his bid, less costs, on the judgment, a
trust was thereby created in favor of the borrowers, and equity would decree them a
conveyance, if it was in the power of the lender to make a title unincumbered by any acts of his
own. Price v. Reeves (1869) 38 Cal. 457. Trusts 100
252. ---- Employer-employee, confidential relationship of parties

Evidence warranted finding that ranch owner and defendant employed on the ranch entered into
oral agreement to pool their resources and to divide the profits from such resources, and that
owner became a trustee of defendant's share in the resources, and that the nature of
defendant's title was that of beneficiary of constructive trust. Tobola v. Wholey (App. 1946) 75
Cal.App.2d 351, 170 P.2d 952. Trusts 110

Employee who obtained lease on employer's place of business after employee was discharged
and upon information which was neither secret nor confidential, and which was not obtained by
reason of or in course of employment, did not hold lease in trust for benefit of employer. Cohn v.
Clare (App. 1 Dist. 1935) 6 Cal.App.2d 504, 44 P.2d 634. Trusts 101

Where it appeared that plaintiff was in the employ of, and sustained confidential relations to,
certain creditors, to whom he conveyed certain land on condition of a reconveyance when the
debt was realized which latter contingency had occurred, it was proper to find and enforce a trust
in favor of plaintiff, simply on the agreement. Adams v. Lambard (1889) 80 Cal. 426, 22 P. 180.
Trusts 103(1)

253. ---- Executors and administrators, confidential relationship of parties

Complaint of former wife against executors of estate of former husband alleging that husband
was obligated by divorce judgment to maintain $15,000 of insurance per child with wife as
primary beneficiary and that husband had wrongfully changed beneficiary from wife to his estate
on all his policies except one and that executors had collected policies payable to estate including
policies wrongfully changed in sum of $58,003.13 and that executors had no legal right or
interest in $33,000 of proceeds and were involuntary or constructive trustees of $33,000 of
insurance stated justiciable claim to property. Cramer v. Biddison (App. 2 Dist. 1968) 65
Cal.Rptr. 624, 257 Cal.App.2d 720. Trusts 371(2)

Fact that deceased executrix, who had been given life estate under will with power to sell,
convey or expend and who had procured distribution of entire estate to herself, could have,
under terms of will, consumed entire estate could not affect establishment of trust in assets of
testator's estate not consumed by executrix in action by remainderman. Cardozo v. Bank of
America Nat. Trust & Savings Ass'n (App. 1 Dist. 1953) 116 Cal.App.2d 833, 254 P.2d 949.
Trusts 102(2)

Evidence was sufficient to establish trust in mortgaged property which owners conveyed to
executrix of estate of which the mortgage was an asset, on ground that executrix knew that
owners intended to convey property to her only as executrix and for use and benefit of estate
and with expectation that note and mortgage would be extinguished. Prussing v. Bates (App. 4
Dist. 1941) 46 Cal.App.2d 347, 115 P.2d 854. Trusts 110

In action by successor administrator against former executrix of estate, of which mortgage was
an asset, to establish trust in mortgaged property which owners conveyed to executrix, findings
of wrongful acts on part of executrix supported implied finding that she secured a conveyance of
the property in violation of her trust as executrix, as against contention that there was no finding
that the property was procured by executrix through fraud, accident, mistake, undue influence or
other wrongful act. Prussing v. Bates (App. 4 Dist. 1941) 46 Cal.App.2d 347, 115 P.2d 854.
Trusts 373
Evidence was insufficient to charge executor as involuntary trustee for wrongdoing in acquiring
interest in corporate stock sold by him as executor. Lichtenberg v. Burdell (App. 1 Dist. 1929)
101 Cal.App. 20, 281 P. 518. Trusts 110

Where a creditor of an executor knowingly receives a part of the money borrowed by the latter
on estate property in payment of the executor's individual indebtedness, the creditor holds such
money in trust for a devisee who is injured thereby. Murphy v. Farmers' & Merchants' Bank
(1900) 131 Cal. 115, 63 P. 368. Trusts 102(2)

To render a person receiving, at the request of an administrator, money belonging to the estate,
in satisfaction of a personal debt of the administrator, a trustee for the estate, it is necessary
that the administrator should be in default to the estate. Gray v. Farmers' Exch. Bank (1894)
105 Cal. 60, 38 P. 519. Trusts 95

An administrator, who takes possession of money collected as taxes by the intestate, may be
treated by the people as trustee. People v. Houghtaling (1857) 7 Cal. 348. Trusts 104

254. ---- Family relationship generally, confidential relationship of parties

Although family connection between grantor and grantee is not sufficient, alone, to support
finding of confidential relationship, it may be considered with other evidence upon that issue.
Spaulding v. Jones (App. 1953) 117 Cal.App.2d 541, 256 P.2d 637. Trusts 108

In action by granddaughter against her maternal aunt to establish constructive trust in joint
stock account which her maternal grandfather had opened with the aunt, wherein it was
admitted that a confidential relationship had existed between the grandfather and the aunt,
evidence that grandfather had intent to divide all his property, including the joint stock account,
equally between his granddaughter and the aunt made a prima facie case, and the aunt had the
burden of showing the validity of the gift. Solon v. Lichtenstein (1952) 39 Cal.2d 75, 244 P.2d
907. Gifts 47(3); Trusts 110

Where a friendly intimate relationship existed between nephew and uncle who had lived together
in house on property in which each had a one-third interest, a “confidential relationship” existed,
and, on refusal of uncle's administrator to reconvey to nephew his interest in property which he
had conveyed to uncle upon uncle's oral promise to reconvey, a “constructive trust” arose in
favor of nephew. Steinberger v. Steinberger (App. 1943) 60 Cal.App.2d 116, 140 P.2d 31. Trusts
102(2)

Where constructive trust in favor of nephew arose upon refusal of uncle's administrator to
reconvey to nephew land conveyed by nephew to uncle under oral promise to reconvey,
administrator was not entitled to a lien for nephew's share of expenditures in reducing mortgage
on property and paying taxes, in absence of evidence as to amount of such share or evidence to
rebut inference that such expenditures by uncle were intended as a gift. Steinberger v.
Steinberger (App. 1943) 60 Cal.App.2d 116, 140 P.2d 31. Trusts 374

Evidence showed no violation by plaintiff's aunt, with whom he was living, of any fiduciary
relation, whereby he was induced to execute a quitclaim deed to her, so as to entitle him to relief
as on a constructive trust. Blanc v. Connor (1914) 167 Cal. 719, 141 P. 217. Trusts 110

255. ---- Spouses inter se, confidential relationship of parties

Trustor's husband did not become involuntary trustee of trustor's community estate in her
husband's partnership solely as result of their mutual mistake as to efficacy of amendment to
partnership agreement providing that, upon death of trustor, her 25% community interest would
go to her husband as trustee where husband gained nothing from trustor by terms of
amendment. Cohen v. Meyers (App. 2 Dist. 1970) 86 Cal.Rptr. 456, 6 Cal.App.3d 878. Trusts
103(3)

Constructive trust in husband's favor was impressed on wife's realty which had been improved
with husband's separate funds which had been advanced on wife's oral promise to convey to
husband an interest therein, either on theory of breach of confidential relationship or on theory
that wife, having used husband's confidence in bad faith to obtain unfair advantage, had exerted
undue influence so as to be involuntary trustee under statute. Schotte v. Schotte (App. 4 Dist.
1962) 21 Cal.Rptr. 220, 203 Cal.App.2d 28. Trusts 103(3)

Where property conveyed to defendant by third party for use by defendant as home for son,
born by defendant of plaintiff's husband prior to marriage of plaintiff and husband, had been paid
for in part by plaintiff's husband from community property without plaintiff's consent, findings in
action by plaintiff to impose constructive trust that no portion of contribution of husband had
become asset of defendant, was not inconsistent with finding that defendant claimed and
asserted interest adverse to plaintiff and that such claims were just and right, when considered
in relation to decree stating that money was paid by husband in performance of his obligation to
furnish such minor child with necessaries of life. Perry v. Manning (App. 1952) 109 Cal.App.2d
557, 241 P.2d 43. Trusts 373

In action by surviving wife and seven children against trustee to recover amount of life policies
which were placed in trust by husband for wife and seven children, where wife, who was not
conversant with English, had signed waiver of her community interest, but premiums from 1920
to 1931 when husband died, were paid with funds of community, evidence did not support
superior court's conclusions that wife consented to trust with full knowledge and consent, that
purported assignments by the seven children of their interests, were void, nor that plaintiffs were
guilty of laches and therefore barred from instant action. Field v. Bank of America Nat. Trust &
Sav. Ass'n (App. 1950) 100 Cal.App.2d 311, 223 P.2d 514. Trusts 372(3)

Because of the confidential relationship between husband and wife, an oral agreement between
the spouses in connection with the conveyance of real property between them or by a third
person to one of them can be enforced by making the grantee a constructive trustee for the
other spouse if the grantee violates such oral agreement. Huber v. Huber (1946) 27 Cal.2d 784,
167 P.2d 708. Trusts 103(3)

Evidence that wife voluntarily assumed a relation of personal confidence with husband with
respect to family finances and received a conveyance of husband's interest in ranch property and
paid no consideration therefor, promising that interest would be held for benefit of husband and
would be reconveyed upon demand, and after divorce, reconveyance to husband was prevented
only by wife's fatal illness, and trust was repudiated by wife's administratrix, was sufficient to
establish elements of constructive trust enforceable against wife's estate. Lyttle v. Fickling (App.
1945) 72 Cal.App.2d 383, 164 P.2d 842. Trusts 110

In action by former wife for decree that former husband holds certain community property in
trust for the parties, findings in favor of wife were sustained by the evidence. Bradbury v.
Bradbury (App. 2 Dist. 1942) 52 Cal.App.2d 547, 126 P.2d 673. Trusts 110
In suit to establish trust in land claimed to have been separate property of plaintiffs' mother and
distributed at her death as community property to plaintiffs' stepfather, evidence that mother
and stepfather had agreed that plaintiffs were to have land upon death of mother and stepfather
did not show intention of mother that property should be distributed as her separate property on
her death. Aho v. Kusnert (1939) 12 Cal.2d 687, 87 P.2d 358. Trusts 110

Where wife, while almost unconscious on day before her death, signed deed of her realty to
husband, who had promised to convey property to her children by former marriage, constructive
trust, enforceable against him, arose in such children's favor. Allen v. Meyers (1936) 5 Cal.2d
311, 54 P.2d 450. Trusts 96

Evidence in suit to declare involuntary trust sustained finding of existence of defendant

husband's agreement with decedent after marriage to waive claim to decedent's separate
property. Miller v. Forster (App. 1933) 131 Cal.App. 509, 21 P.2d 678. Trusts 110

Husband, promising wife not to claim property received under her will, held legal title thereto in
trust for her heir. Weinstein v. Moers (1929) 207 Cal. 534, 279 P. 444. Trusts 97

Widow who after securing devise of her husband's property, to use for children's maintenance,
procured distribution in her own name, and refused to account was “involuntary trustee”.
Apablasa v. Sepulveda (App. 1 Dist. 1928) 91 Cal.App. 232, 267 P. 105. Trusts 103(3)

Purpose of law is not punishment, in proceeding to establish trust in divorced husband's realty,
purchased with proceeds of business using former wife's money. Harris v. Hensley (App. 2 Dist.
1927) 83 Cal.App. 283, 256 P. 832. Trusts 374

Divorced wife was entitled to principal of her money invested in husband's business and fair
portion of profits, but she was not entitled to all realty acquired by him in course of years,
notwithstanding impossibility of segregating interests. Harris v. Hensley (App. 2 Dist. 1927) 83
Cal.App. 283, 256 P. 832.

Where one permitted his fiancee before marriage to withdraw money from his bank account for
her own purposes, her withdrawal of such money to loan to a son and daughter-in-law was a
breach of trust by her, and the son and daughter-in-law were liable for the amount received
under those circumstances. Williams v. Williams (App. 2 Dist. 1923) 60 Cal.App. 675, 213 P.
508. Trusts 103(1)

Under §§ 158 (repealed; see, now, § 5103), 2231, 2235, and this section, conveyance by
husband to wife, in view of their confidential relations, is presumed to be without sufficient
consideration. Williamson v. Williamson (App. 1919) 41 Cal.App. 721, 183 P. 301. Deeds 195

Evidence supported a finding that the real consideration for a deed to a wife was love and
affection, and that same was a valid gift, and not a constructive trust, although the deed recited
a consideration of $10, which was never paid. Klumpke v. All Persons (1917) 176 Cal. 300, 168
P. 366. Trusts 110
A husband's promise upon receiving deed from his dying wife that he would execute similar deed
to her niece to be delivered upon his death impresses property with constructive trust in favor of
niece. Hillyer v. Hynes (App. 1917) 33 Cal.App. 506, 165 P. 718. Trusts 96

Where a wife conveys land to her husband, without consideration, for the purpose of a suit, for
her benefit, to oust a tenant--she being advised that such conveyance is necessary for the suit--
a violation of the implied promise to reconvey constitutes a constructive fraud, creating an
involuntary trust in her favor, and entitling her to a reconveyance. Jones v. Jones (1903) 140
Cal. 587, 74 P. 143. Trusts 96

256. ---- Parent-child, confidential relationship of parties

Divorced wife of decedent, who was beneficiary of his life insurance policies, was constructive
trustee of insurance proceeds for benefit of her children where divorce decree ordered decedent
to maintain the children as beneficiaries of his life insurance policies, so that wife was an
involuntary trustee who had an equitable duty to assign such proceeds to the children in order to
effectuate terms of decree to which she was a party, and children could bring suit to enforce
such involuntary trust. Franklin Life Ins. Co. v. Kitchens (App. 2 Dist. 1967) 57 Cal.Rptr. 652,
249 Cal.App.2d 623. Trusts 103(3); Trusts 347

Where understanding between mother tendering money toward purchase of automobile and her
son was that she was to become registered owner she could not, in attempting to prevent
forfeiture of automobile after son had registered it in his name and used it to transport
marijuana, escape status of registered owner by fact that automobile was not registered in her
name and claim status of legal owner holding bona fide lien when proceeding on theory of
constructive or involuntary trust. People v. One 1960 Ford 2DHTTHBD (App. 1 Dist. 1964) 39
Cal.Rptr. 636, 228 Cal.App.2d 571. Controlled Substances 175; Forfeitures 3

Mere existence of parent-child relationship does not establish confidential relationship, giving rise
to duty, breach of which gives rise to constructive trust, but parent-child relationship taken
together with other factors may establish confidential relationship. Briggs v. Nilson (App. 2 Dist.
1964) 38 Cal.Rptr. 68, 226 Cal.App.2d 342. Trusts 103(2)

In action by son against mother to quiet title to four tracts of realty which mother contended son
held in trust for her, evidence warranted finding that property was not impressed with a trust in
favor of mother. Stoner v. Laidley (App. 1 Dist. 1953) 118 Cal.App.2d 50, 257 P.2d 486. Trusts
110

Where stepfather conveyed land to stepdaughter upon alleged promise of stepfather's wife that
property would be held for stepfather and would be reconveyed upon request, delivery of
stepfather's deed to stepdaughter by wife put stepdaughter on inquiry as to purpose of the
conveyance, as respects whether property was impressed with trust in favor of stepfather. Orella
v. Johnson (1952) 38 Cal.2d 693, 242 P.2d 5. Trusts 96

In parents' action against their son for specific performance of his oral promise to reconvey to
plaintiffs realty conveyed by them to defendant, evidence supported trial court's findings of such
promise and existence of confidential relationship between parties, so as to warrant finding and
judgment that defendant held property in trust for plaintiffs. Svistunoff v. Svistunoff (App. 1
Dist. 1949) 94 Cal.App.2d 651, 211 P.2d 352. Trusts 110
A confidential relationship existed between parents and adult son, and where son promised
parents to hold property used as a home for himself and parents a breach of such promise by the
son would support a constructive trust in favor of the parents. Edwards v. Edwards (App. 1 Dist.
1949) 90 Cal.App.2d 33, 202 P.2d 589. Trusts 103(2)

Acceptance of deed from mother by son with knowledge that another son promised the mother
that the sons would reconvey the realty to her, bound son, who did not make the promise to the
promise previously made by the other son. Airola v. Gorham (App. 1 Dist. 1942) 56 Cal.App.2d
42, 133 P.2d 78. Trusts 96

Statements of son after conveyance of realty to him and his brother by their mother
acknowledging that the rest of the family would ultimately have a share in the realty, though too
indefinite to establish that son took realty subject to a trust, when coupled with express
testimony of a trust under terms of which realty was to be reconveyed to mother, tended to
prove both son's knowledge of and acquiescence in trust agreement. Airola v. Gorham (App. 1
Dist. 1942) 56 Cal.App.2d 42, 133 P.2d 78. Trusts 110

Judgment declaring that sons of deceased grantee held realty in trust for deceased's estate, on
ground that she conveyed realty to sons in trust on their oral agreement to reconvey, was
proper, though deceased had independent advice of third person, where at time of conveyance,
deceased was 86 years old and reposed confidence in her sons. Airola v. Gorham (App. 1 Dist.
1942) 56 Cal.App.2d 42, 133 P.2d 78. Trusts 110

In suit to have realty which had been conveyed by plaintiff and her deceased husband to their
son, and which probate court after son's death had set apart to son's widow, declared property
of plaintiff and that defendant held it in trust for plaintiff, evidence as to income of plaintiff's
husband, as to statements of plaintiff and her husband that property belonged to son, and that
son and his wife had paid taxes for many years, supported conclusion adverse to plaintiff. Smith
v. Smith (App. 2 Dist. 1941) 47 Cal.App.2d 574, 118 P.2d 487. Trusts 110

The mere existence of the relationship of parent and child does not alone give rise to a fiduciary
relation. McMurray v. Sivertsen (App. 2 Dist. 1938) 28 Cal.App.2d 541, 83 P.2d 48. Trusts
102(1)

Evidence justified court's conclusion that trust was violated when son, to get conveyance of land,
promised reconveyance without intention of keeping promise and failed to reconvey. Burrows v.
Burrows (App. 1934) 136 Cal.App. 323, 28 P.2d 1072. Trusts 96

Son, holding father's property under conveyance until threatened litigation should be settled,
was “trustee” required to make reconveyance on father's death. Anderson v. Nelson (App. 2 Dist.
1927) 83 Cal.App. 1, 256 P. 294. Trusts 35(4)

Where a real estate broker acting as confidential agent for his mother has paid the consideration
passed in a contract of sale and taken title in his mother's name in settlement of amounts due
her, and thereafter traded her equity in the contract of sale for other property which he took in
his own name, he must be deemed to hold in trust for her. Buell v. Buell (1923) 191 Cal. 53, 214
P. 844. Trusts 103(2)

In a suit by a father to compel reconveyance of land which he deeded to his son, on the ground
that the conveyance was obtained by the son's claim that he would hold the property as trustee
for his father, etc., the fact that the statements antedated a conveyance is no ground for
denying reconveyance, where the father executed the deed in reliance thereon. Mead v. Mead
(App. 1919) 41 Cal.App. 280, 182 P. 761. Trusts 35(1)

Where a father bought from his son, who was a corporation employee, certain bonds with trust
fund, the parental relation did not of itself operate to create such confidential relation between
the son and the owner of the funds as to charge him as involuntary trustee as to a stock bonus
retained by him. MacDermot v. Hayes (1917) 175 Cal. 95, 170 P. 616. Trusts 103(2)

In an action by a mother to establish her right to property, which she claimed she transferred to
her son to hold in trust for her and to be reconveyed on demand, evidence was insufficient to
establish the trust. O'Brien v. O'Brien (App. 1913) 21 Cal.App. 620, 132 P. 612. Trusts 110

Under § 2216 and this section, it is competent to establish a trust arising out of the conveyance
by a father to his daughter upon her parol agreement to divide with the other children, this being
true despite §§ 847 (repealed 1929), 852, and 857 (repealed 1929), requiring a trust to be
established by an instrument in writing, and forbidding an express trust to convey land to a third
person. Dieckmann v. Merkh (App. 1912) 20 Cal.App. 655, 130 P. 27. Trusts 17(4)

Where a mother conveyed land to her son on his oral promise to hold the same for the benefit of
a daughter, and without any other consideration for the conveyance, a trust arose by operation
of law in favor of the daughter on violation of the promise. Cooney v. Glynn (1910) 157 Cal. 583,
108 P. 506. Trusts 96

Under Rev.St.U.S. § 2269 (repealed), providing that where a party entitled to claim the benefits
of the pre-emption laws died before consummating his claim, his representative or heirs might
complete the same, the entry to be in favor of the heirs, and that a patent issued thereon would
inure to their benefit, where the wife of a deceased person holding land in trust under the statute
conveyed it, the deed vested the legal title to the wife's share in the grantee subject to a
constructive trust in favor of the other heirs. Earle v. Bryant (App. 1910) 12 Cal.App. 553, 107 P.
1018. Trusts 105

257. Brother-sister, confidential relationship of parties

Evidence including fact that decedent paid portion of property taxes on realty, the title to which
was solely in name of decedent's sister, and that decedent claimed deduction in her income tax
returns for portion of property taxes she paid on said realty, supported finding that decedent
owned undivided one-half interest in the realty in question, and that decedent's sister was
constructive trustee of decedent's interest. Adams v. Young (App. 2 Dist. 1967) 62 Cal.Rptr.
877, 255 Cal.App.2d 145. Trusts 110

Where plaintiff had her sister named as a grantee with plaintiff in reliance on sister's promise to
reconvey her undivided interest on demand, sister who refused to convey could not avoid
imposition of trust on theory that arrangement was made to circumvent and violate O.P.A.
regulations and that parties were in pari delicto where plaintiff knew nothing of such regulations.
Fischer v. Ostby (App. 1954) 127 Cal.App.2d 528, 274 P.2d 221. Trusts 362

In suit for decree establishing that plaintiffs' sister held title to realty in trust for plaintiffs and
herself in equal shares, evidence sustained finding that mother of defendant had conveyed
property to her upon her promise to divide proceeds realized from sale of said property after
death of mother equally between plaintiffs and herself and that defendant had repudiated such
agreement after her mother's death and refused to divide the property or sell the same and
divide the proceeds. Grace v. Rodrigues (App. 1952) 111 Cal.App.2d 131, 243 P.2d 906. Trusts
110

Where mother conveyed property to daughter in reliance upon daughter's oral promise that she
would, after mother's death, divide property equally between herself and her brother and sister,
constructive trust would be enforced. Grace v. Rodrigues (App. 1952) 111 Cal.App.2d 131, 243
P.2d 906. Trusts 103(2)

In action for conversion of land by plaintiff's sister, evidence supported finding that plaintiff's
deed to sister was without consideration, notwithstanding evidence that sister subsequently
supported plaintiff, from whom she also received money, etc. Katz v. Enos (App. 1 Dist. 1945)
68 Cal.App.2d 266, 156 P.2d 461. Trusts 372(3)

In action for conversion of land by plaintiff's sister, finding that plaintiff was mentally incapable
of executing deed was not uncertain nor inconsistent with another part of finding that, “so far as
he was able to then understand”, plaintiff signed deed solely to enable sister to raise money for
his medical expenses. Katz v. Enos (App. 1 Dist. 1945) 68 Cal.App.2d 266, 156 P.2d 461. Trusts
373

In action for conversion by plaintiff's sister of land allegedly deeded to her when plaintiff was
mentally incompetent, for limited purpose of enabling her to raise money for his medical
expenses, evidence supported findings in plaintiff's favor. Katz v. Enos (App. 1 Dist. 1945) 68
Cal.App.2d 266, 156 P.2d 461. Trusts 372(3)

Where a grantor held title partly for himself and partly as a trustee for others, and conveyed the
land to his brother on a promise to reconvey when requested, a fiduciary and confidential
relation existing between the brothers extended to those for whom the grantor held title, so as
to make them beneficiaries of the constructive trust in favor of the grantor. Cummings v.
Cummings (App. 1921) 55 Cal.App. 433, 203 P. 452. Trusts 103(2)

Where a brother assigned his bank deposit to his sister on a promise of the sister to hold the
same in trust for their joint support, and the sister transferred the deposit to a third person with
notice and without consideration, on the death of the sister the balance of the deposit belonged
to the brother. Tench v. McMeekan (App. 1911) 17 Cal.App. 22, 118 P. 479. Trusts 103(2)

258. ---- Fraternal organizations, confidential relationship of parties

When two members of same fraternal order deal with each other and one accepts as true the
other's representations, into which but for fraternal relation he would have made inquiry, law will
protect him in his trust. Lucas v. Associacao Protectora Uniao Madeirense Do Estado Da
California (App. 1 Dist. 1943) 61 Cal.App.2d 344, 143 P.2d 53. Trusts 103(1)

Evidence that lodge member was advised by lodge's attorney that to obtain a loan from lodge
member had to have a clear title to her realty, and that only way of obtaining clear title was by
lodge's friendly foreclosure suit, justified finding that lodge in securing assignment of trust deed
and in holding foreclosure was acting as “trustee” for the member. Lucas v. Associacao
Protectora Uniao Madeirense Do Estado Da California (App. 1 Dist. 1943) 61 Cal.App.2d 344, 143
P.2d 53. Trusts 110
259. ---- Friendship, confidential relationship of parties

The amount of evidence necessary to establish a confidential relationship ordinarily rests with the
trier of facts, and it is not essential to show a relationship by affinity or consanguinity, or that
business transacted established a particular relationship between the parties, but if parties are
friends, and grantor reposes confidence in grantee, and grantor is of advanced age, an implied
trust may result. Kent v. First Trust & Savings Bank of Pasadena (App. 1950) 101 Cal.App.2d
361, 225 P.2d 625. Trusts 110

Neighbor of elderly woman, to whom the woman entrusted money to pay for her hospital bills
and other expenses, was a trustee of that fund. Webb v. Saunders (App. 4 Dist. 1947) 79
Cal.App.2d 863, 181 P.2d 43. Trusts 63.9

That plaintiff's wife and defendant had been close friends since girlhood, had corresponded,
visited back and forth, and plaintiff's wife considered defendant the most reliable friend she had
and had confidence in defendant did not establish a “confidential” or “fiduciary relationship” so as
to warrant a conclusion that defendant was constructive trustee of her interest in a joint tenancy
deed executed by plaintiff's wife to plaintiff and defendant after defendant promised to provide
for plaintiff under certain circumstances. Ampuero v. Luce (App. 1 Dist. 1945) 68 Cal.App.2d
811, 157 P.2d 899. Trusts 103(1)

If parties be friends and grantor repose confidence in grantee, especially if in addition there exist
an advisory business relationship and the one reposing confidence be of advanced age, an
“implied trust” may result. Adams v. Bloom (App. 1 Dist. 1943) 61 Cal.App.2d 315, 142 P.2d
775. Trusts 103(1)

While the degree of intimacy requisite to establishment of a constructive trust is found as a

general rule only where the parties are related by affinity, consanguinity or contract, it may exist
where the bond between them is merely one of friendship. Coombs v. Minor (App. 2 Dist. 1943)
60 Cal.App.2d 645, 141 P.2d 491. Trusts 103(1)

259.5. ---- Lovers, confidential relationship of parties, violation of trust

Woman and lover were in pari delicto in adulterous relationship, as lover was married to
someone else and woman knew that fact, and, as result, woman was not entitled to imposition of
constructive trust over lover's community and separate property which he transferred to inter
vivos trust with wife for estate-planning reasons, once woman's contract with lover for lifetime
financial care was determined to be unenforceable because there was no showing of stable and
significant cohabitation and it was based upon illicit meretricious consideration. Taylor v. Fields
(App. 2 Dist. 1986) 224 Cal.Rptr. 186, 178 Cal.App.3d 653, review denied. Trusts 102(1)

260. ---- Grantor-grantee, confidential relationship of parties

If grantor conveys property to another in reliance on oral promise of latter to hold property in
trust for grantor or a third person and grantee subsequently repudiates trust, it is settled that
constructive trust may be enforced against the grantee if the conveyance was induced by fraud
or if there was confidential relationship between parties. Adams v. Young (App. 2 Dist. 1967) 62
Cal.Rptr. 877, 255 Cal.App.2d 145. Trusts 96; Trusts 103(1)
Where one has voluntarily assumed a relation of personal confidence with another and receives a
conveyance of the latter's property, paying no consideration therefor, and promising that
property will be held for benefit of grantor and will be reconveyed upon demand, and grantor has
no other purpose in transferring property, equity will decree a trust for benefit of grantor. Lyttle
v. Fickling (App. 1945) 72 Cal.App.2d 383, 164 P.2d 842. Trusts 103(1)

Where there is some sort of a status between grantor and grantee of land upon an oral
agreement to reconvey, and confidence is imposed, a “constructive trust” will be imposed upon
repudiation of oral promise to reconvey. Steinberger v. Steinberger (App. 1943) 60 Cal.App.2d
116, 140 P.2d 31. Trusts 103(1)

Trust arises in favor of grantor or third person, for whose benefit property is held on parol
promise by grantee, between whom and grantee confidential relations exist. Cole v. Manning
(App. 1 Dist. 1926) 79 Cal.App. 55, 248 P. 1065. Trusts 96

Grantee of land as security, who agreed to reconvey to grantor and to attend to renting of land,
etc., stood in such a relation of confidence to grantor that his attempt to acquire title by
quitclaim deed made him an involuntary trustee for grantor, in view of this section and § 2924.
Smith v. Sharp (App. 3 Dist. 1924) 70 Cal.App. 336, 233 P. 374. Trusts 102(1)

On grantee's failure to convey land to others on grantor's death, according to parol promise to
grantor executing absolute deeds in reliance thereon, constructive trust arises, and beneficiary
may enforce agreement under “involuntary trust” provisions of this section. Logan v. Ryan (App.
1 Dist. 1924) 68 Cal.App. 448, 229 P. 993. Trusts 96

In action to have trust declared in land, evidence was sufficient to sustain finding that
confidential relation existed between plaintiff and defendant at time plaintiff delivered an
absolute deed to defendant, who orally promised to reconvey. Bradley Co. v. Bradley (App.
1918) 37 Cal.App. 263, 173 P. 1011. Trusts 110

Where a voluntary conveyance is made by a grantor to a grantee between whom relations of

confidence existed in reliance on such relations, and under a parol agreement of the grantee to
hold the real estate in trust for the grantor, a trust will be impressed on repudiation of the
agreement. Bradley Co. v. Bradley (1913) 165 Cal. 237, 131 P. 750. Trusts 96

261. ---- Landlord-tenant, confidential relationship of parties

Evidence sustained finding that confidential relationship existed between assignors and assignees
of lease, so that oral promise by assignees to reconvey lessees' interest in leasehold would be
enforced. Rahim v. Akbar (App. 1949) 92 Cal.App.2d 383, 207 P.2d 80. Trusts 110

Evidence warranted findings that tenant agreed to protect landlords during lease against
foreclosure of first trust deed, that tenant agreed to advance the money and buy in the property
at foreclosure sale and to hold the property for the landlords who were to repay the tenant, that
landlords in reliance on such agreement made no effort to secure the money elsewhere, and that
tenant purchasing at foreclosure sale held property in trust for landlords. Rankin v. Satir (App.
1946) 75 Cal.App.2d 691, 171 P.2d 78. Trusts 110

A promise by mineral lessees, made through agent who concealed their identity but was
allegedly authorized by them, to make locations on adjoining lands for benefit of lessors, was as
binding on lessees as though directly made, and made lessees and their agents trustees for
benefit of lessors. Neet v. Holmes (1944) 25 Cal.2d 447, 154 P.2d 854. Principal And Agent
145(2); Trusts 95

Where heirs of deceased part owner of interest in mines, and owner of remaining interests,
organized corporation to which they transferred their interests in exchange for stock, and
corporation leased the property to persons represented by owner of remaining interests, the
parties were not joint venturers or copartners, and lessees were not, without more, under duty
to hold claims located by them on adjoining land for benefit of heirs. Neet v. Holmes (1944) 25
Cal.2d 447, 154 P.2d 854. Mines And Minerals 97; Mines And Minerals 101; Trusts 103(1)

Chautauqua corporation having acquired both legal and beneficial title to funds paid by lessees of
lots in tract purchased by it, its subsequent dealings in relation to such funds gave rise to no
constructive trust for lessees. Simpson v. Gillis (1934) 1 Cal.2d 42, 32 P.2d 1071. Trusts 95

262. ---- Mining claim locators, confidential relationship of parties

Where locators of mining claim associate themselves together for particular purpose of obtaining
title to such claim and comply with all legal requirements, but their efforts are ineffective for
time being because of land's temporary withdrawal from entry, and one of them, after
discovering invalidity of such entry and without informing the others of such fact, relocates land
for himself alone when right of entry is restored, he is “trustee” for other locators, even if
locators are not strictly speaking co-tenants, as trust results from parties' “fiduciary
relationship”. Hendrickson v. California Talc Co. (App. 4 Dist. 1942) 55 Cal.App.2d 467, 130 P.2d
806. Trusts 102(1)

Where several parties entered into joint enterprise for purpose of obtaining title to land as
mining claim, location of which by them was invalid because land had been temporarily
withdrawn from entry without their knowledge, and one of them, after his discovery of such fact
and vacation of withdrawal order, located other claims including part of such land for himself and
family only, such re-location inured to benefit of other original locators, for whom he was
“trustee”, so that they had interest in part of relocated land within original claim. Hendrickson v.
California Talc Co. (App. 4 Dist. 1942) 55 Cal.App.2d 467, 130 P.2d 806. Trusts 102(1)

Under contract by which placer mining claim locators contracted with a driller for the
development of oil land, wherein, after some time had expired and operations had been
suspended, the driller applied in his own name for a permit covering the same lands, under the
Leasing Act, 30 U.S.C.A. §§ 227, 228, from the United States government, a constructive trust in
favor of the locators was not created by the contractor's receipt of a prospective permit in his
own name on the theory that, as the locators were prior locators, such fact gave the driller
preferential rights in applying for the permit, where the driller in making application for the
permit did not, in stating his earlier activities on the land, seek to obtain preferred rights, but
merely intended such statement as a recital of his personal qualifications. Morrow v. Coast Land
Co. (App. 4 Dist. 1938) 29 Cal.App.2d 92, 84 P.2d 301. Trusts 104

263. ---- Partnership, confidential relationship of parties

Real property held in individual names of partners acquired from partnership funds and devoted
to exclusive use of partnership business is held in trust for benefit of partnership. Rishwain v.
Smith (App. 1947) 77 Cal.App.2d 524, 175 P.2d 555. Trusts 102(1)
Trust created by partner failing to account after death of one of partners was a constructive,
rather than express or resulting, trust. Dimity v. Dixon (App. 1 Dist. 1925) 74 Cal.App. 714, 241
P. 905. Trusts 102(1)

Where members of partnership were equitable owners of stock in corporation, each partner was
entitled to one-half of proceeds of sale of its business and stock, and where, with knowledge of
these facts and that proceeds of sale were used in purchase of other property, wife of one
partner took title thereto, she became trustee for the partners. Calkins v. Calkins (App. 3 Dist.
1923) 63 Cal.App. 292, 218 P. 611. Trusts 95

Where decedent posted notices of appropriation of water intending to acquire a partly completed
irrigation canal, and use it in distributing the water appropriated and being without sufficient
means, he interested defendants, it being agreed that a corporation should be formed to carry
on the enterprise, and he conveyed all his rights to defendants in trust, to be conveyed by them
to the corporation on its formation and afterwards one of the defendants obtained individually a
lease on the canal, and posted notices of appropriation substantially covering decedent's notices,
decedent and defendants were partners in the enterprise until the formation of the corporation,
and defendants were trustees of the partnership, holding, as such, the rights conveyed by
decedent. Beckwith v. Sheldon (1908) 154 Cal. 393, 97 P. 867. Trusts 110

Where plaintiff and defendant were partners in the purchase and sale of certain land for their
joint benefit, and defendant improperly purchased the lot in controversy, which was within the
partnership agreement, in his own name, and with his own funds, over plaintiff's protest, plaintiff
having furnished money for a portion of the expenses, and having agreed to pay his share of the
purchase price, defendant held the land as trustee of a constructive trust for the benefit of the
firm. Koyer v. Willmon (1907) 150 Cal. 785, 90 P. 135. Trusts 103(5)

264. ---- Principal-agent, confidential relationship of parties

Where material relating to history, philosophy and professions of faith of founder of religion or
those closely related to her was forwarded to defendant for his own use in connection with
operation of unit of plaintiff foundation and no attempt was made to disengage or disconnect
that unit from foundation's activities or operations, agency was established and from that flowed
the usual incidents of fiduciary obligation. Carpenter Foundation v. Oakes (App. 3 Dist. 1972)
103 Cal.Rptr. 368, 26 Cal.App.3d 784, 175 U.S.P.Q. 309. Principal And Agent 14(2)

Evidence that lessor entered into agency agreement with broker, that broker negotiated
proposed lease with food market in lessor's shopping center, that lessor agreed to general
content of lease but desired changes in phraseology and agreed to submit changes to broker who
agreed to endeavor to obtain food market's approval of changes, that lessor failed to submit
changes after request by broker and that lessor subsequently negotiated lease directly with food
market supported finding that lessor acted in bad faith. Colwell Co. v. Hubert (App. 2 Dist. 1967)
56 Cal.Rptr. 753, 248 Cal.App.2d 567. Brokers 11

Agent authorized to purchase certain property for principal cannot purchase it for himself
instead; if he does he holds it as trustee for his principal. Spector v. Miller (App. 4 Dist. 1962) 18
Cal.Rptr. 426, 199 Cal.App.2d 87. Principal And Agent 69(6); Trusts 102(1)

Allegation that defendant undertook to render a service to plaintiff by organizing a corporation

for plaintiff's client and to obtain for use and benefit of plaintiff the agreed compensation, was
sufficient to allege that defendant became plaintiff's agent for such purposes, and, on such
alleged facts, defendant would have duty to turn over to plaintiff, as defendant's principal, the oil
and gas royalty interest, alleged to constitute the compensation, when defendant received it,
even though his alleged service to plaintiff was gratuitous. South v. Wishard (App. 1956) 146
Cal.App.2d 276, 303 P.2d 805. Principal And Agent 69(2); Principal And Agent 78(3)

Where a person, undertaking as agent to purchase property for another with money furnished by
principal for such purpose, takes title in himself, a trust results in principal's favor. Forbes v.
Forbes (App. 1946) 74 Cal.App.2d 936, 169 P.2d 661. Trusts 99

In action to establish trust in and quiet title to realty purchased by defendant with money
advanced by plaintiff, evidence supported trial judge's conclusion that defendant's brother lent
part of such money to plaintiff, not to defendant. Forbes v. Forbes (App. 1946) 74 Cal.App.2d
936, 169 P.2d 661. Trusts 110

In action to quiet title to realty purchased by defendant with money advanced by plaintiff,
evidence, that defendant promised to hold title, taken in his name, for plaintiff's benefit, that
sole consideration for purchase was money furnished by plaintiff at defendant's special request,
and that defendant was plaintiff's agent, representative and confidential adviser in all
transactions respecting purchase of property, supported adjudication that property was held in
trust by defendant for plaintiff. Forbes v. Forbes (App. 1946) 74 Cal.App.2d 936, 169 P.2d 661.
Trusts 110

In action to recover realty on theory that defendants had purchased the realty as agents for
plaintiff, a finding supported by the evidence that there was no agency and no agreement for
purchase for the benefit of plaintiff precluded finding of either a resulting or constructive trust.
Redsted v. Weiss (App. 1946) 73 Cal.App.2d 889, 167 P.2d 735. Trusts 89(1); Trusts 110

Evidence that defendant, who was engaged in extensive farming operations, negotiated for the
purchase of a farm under contract taken in name of plaintiff who was employed by defendant as
a foreman, that all money paid on contract was advanced by defendant, and that plaintiff made
no claim of ownership until after his discharge by defendant, sustained finding that plaintiff was
defendant's agent and justified the quieting of title in plaintiff on theory of a “constructive trust”.
Stromerson v. Averill (1943) 22 Cal.2d 808, 141 P.2d 732. Trusts 110

An agent purchasing corporation bonds with the money of his principal must give the benefit
thereof to his principal under this section and §§ 2224, 2229, 2230, 2233, 2234, 2237, 2243.
MacDermot v. Hayes (1917) 175 Cal. 95, 170 P. 616. Trusts 101

In a suit to charge an agent as trustee of stock received as a bonus in a purchase of bonds for
his principal, plaintiff can show the terms on which bonds were sold to other purchasers, after
showing that all the bonds were disposed of according to particular plan. Bone v. Hayes (1908)
154 Cal. 759, 99 P. 172. Trusts 108

Where no continuing fiduciary relation existed between the parties from which a duty from
defendants to plaintiffs could be implied, and, if defendants were acting as plaintiffs' agents in
making an exchange of property, the negotiations which had been undertaken on behalf of
plaintiffs were completed before the property was purchased by one of the defendants, such
property will not be declared to be held in trust and be required to be conveyed to plaintiffs on
the ground that defendants acquired it as agents of plaintiffs. Mackel v. Nolan (App. 1908) 9
Cal.App. 39, 97 P. 1128. Trusts 101

Where deceased, in fear of death, attempted to convey to an agent all her property, and
instructed him, in the event of her death, to make certain gifts to others and retain the balance
which delivery was insufficient to constitute a gift causa mortis as to a part of such property, and
at the same time she executed to him certain conveyances of land and assignments of
mortgages, such conveyances and assignments created in the agent a constructive trust. Kimball
v. Tripp (1902) 136 Cal. 631, 69 P. 428. Gifts 55; Trusts 103(1)

Agent informed of defect in principal's title to land cannot acquire title, but will be held as trustee
for principal. Hardenbergh v. Bacon (1867) 33 Cal. 356. Trusts 101

If A. and B. are partners, and A. is employed as the agent of C., who claims an interest in certain
lands, to look after such interest, and B., the other partner, purchases an outstanding title to the
land for the benefit of the partnership, inasmuch as the title to the land does not vest in the
partnership, but in the individual partners, C. will be entitled to treat A. as his trustee as to his
half of such title, and as holding it for his use; but he cannot hold B. liable in the same way, as
B. is not chargeable with notice of A.'s agency merely from his relation to him as partner.
Hardenbergh v. Bacon (1867) 33 Cal. 356. Trusts 101

Interest acquired by agent, purchasing land at sheriff's sale in his own name with principal's
money, vested in equity in principal. Green v. Clark (1867) 31 Cal. 591. Trusts 101

265. ---- Subcontracting relationship, confidential relationship of parties

The mere fact that the vendor had knowledge of the existence of the subcontract in which the
vendee agreed to reconvey to the company was not sufficient to put the vendor on inquiry, so as
to charge him with knowledge of the company's rights when he procured the release from the
vendee and the company's manager. Stratton v. California Land & Timber Co. (1890) 86 Cal.
353, 24 P. 1065. Trusts 348

Where vendee under a land contract, who had obtained it as agent for a land company, assigned
it to the company's manager, contracted to convey the land to the company and paid one
installment of the purchase price, and the company's manager paid the second--both with the
company's funds, these facts did not raise an implied trust in the land in favor of the company,
as against the vendor, who had dealt with the vendee and the manager in their individual
capacities only, without knowledge either of their relation to the company or of the fact that the
money paid on the contract belonged to the company, and who had, in good faith and for value,
obtained from them a release of all their rights to the land after a default in the payment of the
third installment. Stratton v. California Land & Timber Co. (1890) 86 Cal. 353, 24 P. 1065. Trusts
348

266. ---- Testator-beneficiary, confidential relationship of parties

Testamentary trustee of trust set up in undivided one-fourth interest in realty was not
individually, a cotenant with the trust beneficiaries or the owners of the remaining undivided
interests in the tract and was at liberty to buy such remaining interests for himself when they
were sold at public tax sale, and no constructive trust arose when he made such purchase.
Metcalf v. Hecker (App. 1954) 127 Cal.App.2d 634, 274 P.2d 188. Trusts 102(1)
Where testator devises his property in reliance upon an agreement with devisee that the latter
will hold it in trust for, or to convey it to, a third person, the devisee holds the property upon a
constructive trust for the third person. Sears v. Rule (1945) 27 Cal.2d 131, 163 P.2d 443,
certiorari denied 66 S.Ct. 1022, 328 U.S. 843, 90 L.Ed. 1617. Trusts 96

An action to impose constructive trust upon property of testatrix in hands of individual

distributees because of testatrix' breach of contract to devise property in certain manner, is an
action against distributees personally and not against the testatrix' estate and is independent of
the will and probate proceeding, and each distributee is individually held as a “constructive
trustee” solely of the property which came to him and none is interested in the granting or denial
of similar relief as to any other. Bank of California Nat. Ass'n v. Superior Court in and for City
and County of San Francisco (1940) 16 Cal.2d 516, 106 P.2d 879. Trusts 359(1)

Where decedent fails to distribute her property in accordance with contract and executes will
which violates terms of the contract, the decedent's estate may be probated and the property
distributed accordingly, but the court will, in an action by the promisee, impose a “constructive
trust” upon any particular property in hands of an individual distributee and thereby accomplish
substantial result of enforcement of the contract, which may be termed “quasi specific
performance” of the contract. Bank of California Nat. Ass'n v. Superior Court in and for City and
County of San Francisco (1940) 16 Cal.2d 516, 106 P.2d 879. Trusts 103(1)

Where a testator makes known to a devisee his desire that the property shall be disposed of in a
particular manner, and that he relies on the devisee to carry the desire into effect, and the
devisee uses words and does acts calculated to cause, and which he knows do in fact cause,
testator to believe he assents thereto, and the testator in consequence thereof makes the
devise, a constructive trust is created. In re Holt's Estate (App. 3 Dist. 1923) 61 Cal.App. 464,
215 P. 124. Trusts 96

Evidence in proceedings to assess an inheritance tax did not sustain an allegation that the
devisee had promised testator to carry out his desires with reference to the property, so as to
establish a constructive trust which would result in a lower tax. In re Holt's Estate (App. 3 Dist.
1923) 61 Cal.App. 464, 215 P. 124. Trusts 110

Where testator and residuary legatee, who prepared will, understood that a clause in the will was
an execution of a power of appointment as to $32,000, testator's estate being only $3,000, such
understanding was sufficient of itself to raise an implied or constructive trust against the
residuary legatee; such clause of the will being held not a valid execution of the power of
appointment. Reed v. Hollister (App. 1 Dist. 1919) 44 Cal.App. 533, 186 P. 819. Trusts 95

267. Remedies of beneficiary, violation of trust

Under California law, constructive trust is equitable remedy imposed to prevent unjust
enrichment and may be used where property has been wrongfully acquired or detained. In re
Goldberg, Bkrtcy.E.D.Cal.1993, 158 B.R. 188, affirmed 168 B.R. 382. Trusts 91; Trusts 95

Constructive beneficiary may obtain money judgment in lieu of destroyed res and recover value
of trust property commingled by constructive trustee with his own properties. Elliott v. Elliott
(App. 4 Dist. 1964) 41 Cal.Rptr. 686, 231 Cal.App.2d 205. Trusts 247; Trusts 352
Where plaintiff's money in a joint bank account was used in violation of trust to purchase a house
and lot and title taken in joint names of defendants, amount of plaintiff's fractional interest thus
created in the property was determined by ratio that amount of his money used bore to amount
of entire purchase price. Monica v. Pelicas (App. 1955) 131 Cal.App.2d 700, 281 P.2d 269.
Trusts 375(1)

Where a trustee in violation of his trust invests the trust property or its proceeds in any other
property, and the cestui que trust cannot follow and identify the property in its substituted form,
the cestui que trust occupies a position toward the estate of the trustee identical with that of a
simple contract creditor, and he has no special lien on the general estate of the trustee superior
to that of any other creditor, and nothing is left but a naked claim for damages for the breach of
trust, to be obtained through an action at law. Lathrop v. Bampton (1866) 31 Cal. 17. Trusts
340

268. Waiver of tort

Having acquired record ownership with notice of principal's rights and in violation of same,
agent's security transferee became an involuntary trustee for benefit of principal; and alleged
fact that transferee did not believe principal to be true owner would not excuse his violation of
her property rights by sale of property; but principal, having waived tort by ratifying sale, could
recover only on basis of unjust enrichment. Shahood v. Cavin (App. 1957) 154 Cal.App.2d 745,
316 P.2d 700. Action 28; Trusts 356(1)

269. Pleadings

In parents' action against their son for specific performance of his oral promise to reconvey to
plaintiffs realty conveyed by them to defendant, allegations of complaint and court's findings that
plaintiffs conveyed property to defendant on such promise and demanded reconveyance thereof
by him and that he refused to reconvey supported court's finding and judgment that defendant
held property in voluntary constructive trust or positive voluntary trust resting in parol.
Svistunoff v. Svistunoff (App. 1 Dist. 1949) 94 Cal.App.2d 651, 211 P.2d 352. Trusts 96

Complaint alleging oral agreement in 1939 by parents and son that down payment and monthly
payments on house for family home should be made by son who should take title thereto and
pay correspondingly less to parents for room and board, performance of agreement until 1945
following son's marriage after mother's death when son repudiated the agreement stated cause
of action to establish constructive trust notwithstanding prayer for declaratory judgment, and
where the case had been fully tried plaintiff's right to relief should not be denied because of
defects in the pleading. Edwards v. Edwards (App. 1 Dist. 1949) 90 Cal.App.2d 33, 202 P.2d
589. Trusts 371(2)

Allegations that mineral lessees required possession of the leased mines in order to gain access
to surrounding territory to ascertain its value, and promised through agent to cause locations to
be made for benefit of mine owners, but make locations in their own names, were sufficient to
show constructive trust. Neet v. Holmes (1944) 25 Cal.2d 447, 154 P.2d 854. Trusts 371(2)

The alleged insufficiency of allegation to properly charge a conspiracy was immaterial where
there were sufficient allegations independent of conspiracy charge to allege a trust based on
theory of breach of confidential relationship. Lucas v. Associacao Protectora Uniao Madeirense Do
Estado Da California (App. 1 Dist. 1943) 61 Cal.App.2d 344, 143 P.2d 53. Trusts 371(2)
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A complaint against fraternal lodge, its directors, and purchaser of property upon foreclosure of
trust deed acquired by the lodge sufficiently pleaded confidential relationship to warrant
judgment that purchaser held the property in trust for plaintiff. Lucas v. Associacao Protectora
Uniao Madeirense Do Estado Da California (App. 1 Dist. 1943) 61 Cal.App.2d 344, 143 P.2d 53.
Trusts 371(2)

In action to quiet title to property conveyed to plaintiff by defendant, cross-complaint,

considered as a whole, sufficiently alleged a confidential relationship between defendant and
plaintiff and that plaintiff had promised to reconvey the property as basis for declaration of a
constructive trust. Adams v. Bloom (App. 1 Dist. 1943) 61 Cal.App.2d 315, 142 P.2d 775. Trusts
371(2)

Amended complaint alleging that majority stockholder when in need of additional capital to
continue operations through corporation was induced by reason of trust and confidence in his
attorney who refused to disclose identity of parties interested in transaction to sell assets of
corporation, as the result of which attorney derived secret profits, stated a cause of action
against attorney as “constructive trustee”. Plxweve Aircraft Co. v. Greenwood (App. 2 Dist.
1943) 61 Cal.App.2d 21, 141 P.2d 933. Trusts 371(2)

A complaint alleging that executrix did not foreclose mortgage which was asset of estate but
wrongfully accepted deed to mortgaged property to herself individually, that owners intended to
convey to her only as executrix and for use and benefit of estate, that she paid no consideration
for property, and that conveyance was made by owners with expectation that note and mortgage
would be extinguished, was sufficient to allege existence of “involuntary trust”, notwithstanding
absence of confidential relationship between executrix and owners, since there was such a
relationship between executrix and estate. Prussing v. Bates (App. 4 Dist. 1941) 46 Cal.App.2d
347, 115 P.2d 854. Trusts 371(2)

Children's complaint against mother to establish trust in deceased's husband's property was not
demurrable for uncertainty. Apablasa v. Sepulveda (App. 1 Dist. 1928) 91 Cal.App. 232, 267 P.
105. Pleading 18

270. Limitations and laches

Action alleging a conspiracy and that transfer of estate assets was illegal, brought by heirs, who
had knowledge of facts for almost twenty years before suit was filed and after two previous suits
had been dismissed, one for lack of prosecution, was barred by laches and statute of limitations,
even if action was regarded as one to enforce a constructive trust. Stewart v. Indian Creek
Lumber Co. (App. 3 Dist. 1961) 13 Cal.Rptr. 397, 192 Cal.App.2d 93. Limitation Of Actions
130(5); Trusts 365(5)

In action by son against mother to quiet title to four tracts of realty which mother contended
were held in trust, evidence warranted findings adverse to mother's contention that continuous
trust existed which precluded statute of limitation from running until repudiation thereof, and
warranted conclusion that mother's claims were barred by limitations and laches. Stoner v.
Laidley (App. 1 Dist. 1953) 118 Cal.App.2d 50, 257 P.2d 486. Limitation Of Actions 197(2);
Trusts 365(5)

Where mother made no claim to an interest in property which had been conveyed to son until
many years after the transactions occurred, and until after three important witnesses were dead,
mother was precluded by laches from asserting that son held title in trust, especially when facts
and circumstances strongly indicated that she knew son was claiming title to the properties.
Stoner v. Laidley (App. 1 Dist. 1953) 118 Cal.App.2d 50, 257 P.2d 486. Trusts 365(5)

In action for conversion by plaintiff's sister of land deeded to her in May, 1936, for limited
purpose, evidence that sister wrongfully sold land in February, 1938, but that plaintiff did not
definitely learn of sale before October, did not show laches, where action was brought in
January, 1939. Katz v. Enos (App. 1 Dist. 1945) 68 Cal.App.2d 266, 156 P.2d 461. Trusts
372(3)

Children's action against mother as involuntary trustee was not barred, where filed 16 months
after mother's intention to hold property in her own right became known. Apablasa v. Sepulveda
(App. 1 Dist. 1928) 91 Cal.App. 232, 267 P. 105. Limitation Of Actions 102(8)

271. Burden of proof, violation of trust

In declaratory judgment action brought by vendor to determine rights in proceeds of sale of

leasehold interest in mining property, where assignor, who had retained interest in leasehold
under trust agreement entered into subsequent to assignment to vendor, filed cross-complaint to
have sale invalidated insofar as such sale related to his interest in leasehold and to declare trust
in reference thereto, said assignor assumed burden of proving that vendor had breached
contractual and fiduciary duties owing to assignor. Foley v. Riverside Iron & Steel Corp. (App.
1950) 99 Cal.App.2d 431, 221 P.2d 998. Trusts 107

In action for conversion of land deeded by plaintiff to defendant allegedly for a limited purpose,
the rule that deed is presumed to convey absolute title and burden of proving it did not do so is
on plaintiff does not apply in case of a confidential relationship. Katz v. Enos (App. 1 Dist. 1945)
68 Cal.App.2d 266, 156 P.2d 461. Trusts 372(1)

In action for conversion by plaintiff's sister of land deeded to her for limited purpose, defendants
had burden of establishing that plaintiff failed to sue within reasonable time after discovering
sale of land in violation of trust. Katz v. Enos (App. 1 Dist. 1945) 68 Cal.App.2d 266, 156 P.2d
461. Trusts 372(1)

In executor's suit to compel reconveyance of realty which aged grantor had conveyed to
defendant, after showing of confidential relationship between grantor and defendant, burden was
still upon executor to prove that transaction between grantor and defendant did not create a fee
simple interest in defendant but that execution and delivery of deed to defendant under the
circumstances constituted defendant a constructive trustee. Sampson v. Bruder (App. 2 Dist.
1941) 47 Cal.App.2d 431, 118 P.2d 28. Trusts 107

In action to establish constructive trust, burden remained on plaintiff, after showing confidential
relationship, to prove deed, while conveying fee on face, constituted grantee constructive trustee
as to remainder. Taylor v. Bunnell (1931) 211 Cal. 601, 296 P. 288. Trusts 107

In an action by son against his mother, old and infirm, to have declared a trust on realty
conveyed by him to her for valuable consideration, the burden was not on the mother to show
that plaintiff had independent advice, notwithstanding the deed was drawn by her attorney.
Mondada v. Bordenave (App. 1 Dist. 1923) 65 Cal.App. 50, 223 P. 76. Trusts 107

A plaintiff, seeking to establish by parol evidence a constructive trust arising out of the refusal of
defendant, who stood in a confidential relation to her, to reconvey property granted without
consideration and under an agreement to reconvey, has the burden of proving that defendant
accepted the conveyance under an agreement to reconvey, and mere proof of the confidential
relation and want of consideration is insufficient. O'Brien v. O'Brien (App. 1913) 21 Cal.App. 620,
132 P. 612. Trusts 110

Though the burden of proof is on plaintiff seeking to charge the agent as trustee, equity will not,
to save the agent, strain the evidence for a possible ground of exculpation, where he has not
suggested one. Bone v. Hayes (1908) 154 Cal. 759, 99 P. 172. Trusts 110

272. Evidence, violation of trust cases

Evidence including disclosures respecting physical and mental health of deceased stockholder
was sufficient to support finding that defendant who had been attorney, director, and officer of
corporation had dominated decedent, in action to, inter alia, have constructive trust imposed on
defendant's stock in corporation for benefit of decedent's representatives. Thompson v. Price
(App. 4 Dist. 1967) 59 Cal.Rptr. 174, 251 Cal.App.2d 182. Trusts 110

In action between principal and agent to quiet title to realty on theory of constructive trust,
where defendant's testimony established that plaintiff entered into a contract to purchase land as
defendant's agent, and plaintiff delivered contract to defendant with an assignment executed in
blank, action of defendant in attempting to have new contract issued to him by filling in his name
as assignee in the assignment did not compel conclusion that defendant's testimony was
unworthy of belief. Stromerson v. Averill (1943) 22 Cal.2d 808, 141 P.2d 732. Trusts 110

In daughter's action against decedent's husband and administrator to establish involuntary trust
under husband's agreement with decedent to waive claim to her separate property, joint tenancy
deed offered by husband to show state of mind of parties was properly rejected. Miller v. Forster
(App. 1933) 131 Cal.App. 509, 21 P.2d 678. Trusts 108

Where a mother sought to establish a constructive trust in land which she had conveyed to her
son, a letter written by her to the son requesting money, together with one written to another
son mentioning her intention to make certain conveyances, was admissible. O'Brien v. O'Brien
(App. 1913) 21 Cal.App. 620, 132 P. 612. Trusts 108

While a constructive trust cannot be created by a grantee's naked promise after a conveyance,
his admissions and declarations, showing that a trust relationship was created and existed
contemporaneously with the conveyance, are competent evidence of the trust. Taylor v. Morris
(1912) 163 Cal. 717, 127 P. 66. Trusts 108

Though a constructive trust in land cannot be established by oral promises of the grantee made
after the execution of the deed, evidence of the subsequent declarations of the grantee as to
what he agreed to do at the time the deed was made is admissible to show what occurred at the
time of the transaction. Cooney v. Glynn (1910) 157 Cal. 583, 108 P. 506. Trusts 109

In an action by a sister against her brother to establish a trust in her favor in land alleged to
have been conveyed by their mother to defendant for plaintiff's benefit, evidence is admissible
that four days before the deed was made the mother had executed a will devising the land to
plaintiff, and that on defendant's suggestion, and his oral promise to hold the land for plaintiff,
the deed was made and the will destroyed. Cooney v. Glynn (1910) 157 Cal. 583, 108 P. 506.
Trusts 109

In an action to declare real estate to be held in trust by defendants for plaintiff on the ground
that one of defendants was plaintiff's agent for its sale, and, pretending to have found a
purchaser, procured a conveyance to such pretended purchaser so that he might purchase it
himself, evidence as to whether the land had increased or depreciated in value after the
transaction was properly excluded. Curry v. King (App. 1907) 6 Cal.App. 568, 92 P. 662. Trusts
108

V. ACCIDENT, MISTAKE, NEGLIGENCE AND OTHER WRONGFUL ACT

<Subdivision Index>

Absence of mistake 330

Accident 321
Beneficiaries of trust by mistake 328
Designation of grantees by mistake 325
Distribution
Distribution - Decree as affecting mistake 326
Distribution - Mistake under prior will 327
Distribution under decree 326
Distribution under prior will 327
Embezzlement, other wrongful acts 335
Fact and law, mistake as to 329
Failure to insure 340
Lands included in deed by mistake 324
Larceny, other wrongful acts 336
Manslaughter, other wrongful acts 337
Misappropriation of funds, other wrongful acts 334
Mistake 322-330
Mistake - In general 322
Mistake - Absence of mistake 330
Mistake - Beneficiaries of trust by mistake 328
Mistake - Designation of grantees by mistake 325
Mistake - Distribution under decree 326
Mistake - Distribution under prior will 327
Mistake - Lands included in deed by mistake 324
Mistake - Mistake of fact and law 329
Mistake - Volunteers 323
Mistake of fact and law 329
Murder, other wrongful acts 338
Other wrongful acts 331-338
Other wrongful acts - In general 331
Other wrongful acts - Embezzlement 335
Other wrongful acts - Larceny 336
Other wrongful acts - Manslaughter 337
Other wrongful acts - Misappropriation of funds 334
Other wrongful acts - Murder 338
Other wrongful acts - Wrongful acquisition of thing 333
Other wrongful acts - Wrongful assumption of control of property 332
Undispersed appropriations 339
Volunteers, mistake 323
Wrongful assumption of control of property, other wrongful acts 332
Wrongful acquisition of thing, other wrongful acts 333

321. Accident

Genuine issues of material fact as to whether any defendant gained $100,000 sum by accident,
mistake, fraud, undue influence, the violation of a trust, or other wrongful act precluded
summary judgment for defendants on constructive trust claim brought by decedent's sister,
individually and in her capacities as successor trustee and personal representative of decedent's
estate, regarding $100,000 in funds transferred from decedent's bank account to his brother's
bank account. Teselle v. McLoughlin (App. 3 Dist. 2009) 92 Cal.Rptr.3d 696, 173 Cal.App.4th
156, rehearing denied. Judgment 181(34)

In a case where a will was discovered after a decree of distribution of the estate as intestate, it
was declared that if through accident or fraud distributees were holding property to which they
were not entitled, equity would do justice, not by overruling the decree, but by declaring the
distributees to be involuntary trustees for the owners. In re Walker's Estate (1911) 160 Cal. 547,
117 P. 510. Trusts 94.5

322. Mistake--In general

Purchaser of vacant lot from United States who mistakenly received deed for house and lot from
the Government wrongfully detained lot and house and profitably sold lot and house so as to be
constructive trustee of property, under California law. U.S. v. Pegg, C.A.9 (Cal.)1986, 782 F.2d
1498. Trusts 93; Trusts 105

Under California law, mistakenly issued escrow refund check which was received by debtor after
debtor failed to qualify for financing to purchase home was subject to constructive trust in favor
of bank as assignee of title company which issued check; debtor initially held refund check as
involuntary trustee of constructive trust with bank as beneficiary because check was issued
erroneously. In re Goldberg, Bkrtcy.E.D.Cal.1993, 158 B.R. 188, affirmed 168 B.R. 382. Trusts
93

Under California law, bank established by clear and convincing evidence that debtor commingled
proceeds of mistakenly issued escrow refund check into existing bank accounts that were later
drawn upon to make $15,000 down payment on current residence and that rest of funds in
account were dissipated by debtor for personal uses so as to be entitled to constructive trust on
debtor's residence under California law. In re Goldberg, Bkrtcy.E.D.Cal.1993, 158 B.R. 188,
affirmed 168 B.R. 382. Trusts 358(2)

Where one receives money to which he is not entitled, through mistake, he becomes trustee of
that money for benefit of one justly entitled to it. People v. Dubrin (App. 2 Dist. 1965) 43
Cal.Rptr. 60, 232 Cal.App.2d 674. Trusts 104

323. ---- Volunteers, mistake

Landowner and predecessors in interest who paid taxes erroneously assessed against them on
strip of land in honest but mistaken belief that they owned strip, which of record belonged to
adjoining landowner without whose request or knowledge taxes were paid, were “volunteers,”
and not entitled to reimbursement for all such taxes from adjoining landowner. McMillan v.
O'Brien (1934) 219 Cal. 775, 29 P.2d 183. Taxation 2768

324. ---- Lands included in deed by mistake

Decedent's sister, individually and in her capacities as successor trustee and personal
representative of decedent's estate, could establish cause of action for a constructive trust based
on transfer of trust property by mistake after discovering trust amendment which excluded
property from exchange agreement, regardless of whether defendants, who were associated with
other trust which received the property, were aware of the trust amendment. Teselle v.
McLoughlin (App. 3 Dist. 2009) 92 Cal.Rptr.3d 696, 173 Cal.App.4th 156, rehearing denied.
Trusts 93

While a deed is presumptive evidence as to land conveyed therein, it is not conclusive, and it is
not sufficient to establish title in a grantee who possessed such knowledge of another's rights in
property as to subjugate his interests to that prior interest, or as to make the assertion of his
paper title unjust in an equitable action. Wassel v. Black (App. 1957) 155 Cal.App.2d 217, 317
P.2d 1010. Trusts 93

Purchaser, whose deed includes by mistake lands paid for by another, cannot claim ownership of
such other's lands. McGuiness v. Lester (App. 3 Dist. 1927) 86 Cal.App. 454, 260 P. 925. Trusts
93

325. ---- Designation of grantees by mistake

Where plaintiff had authorized the use of money in a joint bank account to buy a home for
defendant only and not for defendant and another, and money was used to purchase property,
title to which was taken in name of both defendants in violation of trust plaintiff had reposed in
them, transaction if not actually a fraud, was at least a “mistake” making defendants involuntary
trustees of house and lot purchased for benefit of plaintiff. Monica v. Pelicas (App. 1955) 131
Cal.App.2d 700, 281 P.2d 269. Trusts 93

Where divorced wife acquired husband's interest in contract for purchase of realty and paid all
the consideration for the realty and grantor named both husband and wife as grantees instead of
deeding realty to wife alone, husband's apparent interest was subject to resulting trust in favor
of wife, and grantor's mistake made husband an involuntary trustee for benefit of wife, and
husband was under duty to unconditionally convey his apparent legal title to wife. Abbott v.
Miller (App. 1950) 98 Cal.App.2d 595, 220 P.2d 570. Trusts 81(2)

Where sole purpose of defendant in signing note and trust deed was to loan her credit in order to
make transaction acceptable to vendors of property and she received no consideration and
suffered no detriment, defendant was an “accommodation maker,” and where her name was
added to the joint tenancy deed under erroneous belief that it was necessary to secure her
against any liability she might have incurred, defendant held record title as joint tenant with the
other joint tenant in “trust”. Brown v. Volz (App. 1949) 90 Cal.App.2d 793, 204 P.2d 110. Trusts
96

One obtaining patent without fraud in mistaken belief that he was heir of decedent granted land
by Mexican government held legal title in trust for true heir, regardless of good faith and
knowledge of trust relationship or true heir's silence during patent proceeding, patentee being
presumed to know of true heir's rights. Wilson v. Castro (1866) 31 Cal. 420. Trusts 93

326. ---- Distribution under decree

A suit by legatee seeking to impress a trust upon certain shares of stock allegedly bequeathed to
legatee but erroneously distributed pursuant to probate decree and acquired by executrix was
not a collateral attack on decree of distribution and decree of distribution would remain effective
to give legal title to executrix. Blair v. Mahon (App. 2 Dist. 1951) 104 Cal.App.2d 44, 230 P.2d
832. Executors And Administrators 315.6(3)

Where property was erroneously distributed to certain heirs who had no knowledge of the
existence of other heirs, and all statutory notices were given, and there was no element of
extrinsic fraud, and decree of distribution became final, heirs excluded from decree could not
thereafter successfully impose a trust on property in hands of distributees on sole ground that
distributees had received the property by reason of a “mistake” within meaning of this section or
Probate Code, § 228. Hewett v. Linstead (App. 1 Dist. 1942) 49 Cal.App.2d 607, 122 P.2d 352.
Trusts 93

327. ---- Distribution under prior will

Where later will was admitted to probate after final decree distributing property of estate of
testator in accordance with provisions of earlier will, devisees and legatees named in later will
had basis for bringing suit in equity against devisees and legatees under earlier will, to charge
the latter as trustees for the former on ground that distributees under earlier will were holding
property under decree to which they were not entitled, but such questions belonged in court of
equity, and probate court did not possess the requisite machinery to try them. In re Cecala's
Estate (App. 1951) 104 Cal.App.2d 526, 232 P.2d 48. Courts 472.4(3)

328. ---- Beneficiaries of trust by mistake

Evidence showed that defendant, as Nevada town-site trustee, under mistake as to authority,
fixed and collected of grantees of lots greater fees for attorney obtaining patent than statute
authorized; and so, as to excess, was, under this section, trustee, not for plaintiff, the attorney,
but for the grantees, who but for the mistake would have it. Donovan v. Stevens (1918) 179 Cal.
32, 175 P. 400. Public Lands 39(5)

329. ---- Mistake of fact and law

Substantial evidence supported trial court findings that trustor was not acting under any
misapprehension or mistake of fact as to meaning of trust agreement, its irrevocability, or gift
tax liability thereunder when she entered into agreement. Walton v. Bank of California, Nat.
Assoc. (App. 1 Dist. 1963) 32 Cal.Rptr. 856, 218 Cal.App.2d 527. Trusts 47

Where deed was made to plaintiff and to defendant as joint tenants under a mistake of fact and
law and defendant had no present interest in property, court properly determined that defendant
held record title to property as a joint tenant with plaintiff as an involuntary trustee for plaintiff.
Brown v. Volz (App. 1949) 90 Cal.App.2d 793, 204 P.2d 110. Trusts 96

This section, declaring one who gains a thing by mistake an involuntary trustee, is without
application to an action to declare a deed absolute a mortgage, in absence of any showing that
the same was the result of a mistake within §§ 1577, 1578. Tetenman v. Epstein (App. 2 Dist.
1924) 66 Cal.App. 745, 226 P. 966. Mortgages 297

330. ---- Absence of mistake

Where plaintiff had actual notice of probate proceedings and filed claim against estate, but
plaintiff did not file request for special notice of further proceedings, and after claim was
approved, plaintiff assumed probate court would proceed correctly and made no effort to keep
informed of proceedings, so that plaintiff's failure to protect plaintiff's interests was caused, not
by fraud or mistake on part of others, but, by plaintiff's inaction, equitable relief could not be
granted after time for appeal or other direct attack had expired, to avoid decree of distribution
whereunder distributees received realty free of plaintiff's claim. Federal Farm Mortg. Corp. v.
Sandberg (1950) 35 Cal.2d 1, 215 P.2d 721. Executors And Administrators 315.4

331. Other wrongful acts--In general

Under California law, alleged owner of painting stated claim for imposition of a constructive trust
against the Kingdom of Spain and foundation which possessed the painting and displayed it in
state-owned palace, in action seeking to recover painting that Nazis allegedly extorted from
alleged owner's grandmother as a condition to issuing her an exit visa out of Germany during
World War II, where he alleged that Spain and foundation wrongfully detained painting that
belonged to him. Cassirer v. Kingdom of Spain, C.D.Cal.2006, 461 F.Supp.2d 1157, affirmed in
part, reversed in part 580 F.3d 1048, rehearing en banc granted 590 F.3d 981. Trusts 95

Defendants did not show that decedent's sister, individually and in her capacities as successor
trustee and personal representative of decedent's estate, could not reasonably obtain evidence
that defendants gained unnamed partnership assets by fraud, accident, mistake, undue
influence, violation of trust, or other wrongful act, as required for defendants to prevail on
motion for summary judgment as to sister's claim for constructive trust over the partnership
assets, in light of sister's discovery responses which stated she was not given access to the
partnership books and records. Teselle v. McLoughlin (App. 3 Dist. 2009) 92 Cal.Rptr.3d 696,
173 Cal.App.4th 156, rehearing denied. Judgment 185.3(1)

Allegations of impropriety in acquisition of stock in corporation and merger with another

corporation, if proven, would not support imposition of constructive trust on real property of the
corporation. Pacific Lumber Co. v. Superior Court (App. 1 Dist. 1990) 276 Cal.Rptr. 425, 226
Cal.App.3d 371. Trusts 371(2)

Ex-husband could not be held liable for ex-wife's one-half interest in note on constructive trustee
theory in absence of findings that he failed and refused to demand payment or to take any action
to enforce payment before statute of limitations had run with intent and purpose of destroying
value of her interest, that note was collectible and ex-wife damaged by ex-husband's failure to
take steps to collect it, and on issues of affirmative defenses of negligence and laches. Elliott v.
Elliott (App. 4 Dist. 1964) 41 Cal.Rptr. 686, 231 Cal.App.2d 205. Trusts 373

Where soldier named his mother as beneficiary of a policy of National Service Life Insurance,
after death of the soldier, the mother did not hold one-half of the proceeds of the policy under an
involuntary trust for the widow of the soldier where no wrongful act was shown upon the part of
anyone. Carballo v. McFann (App. 1950) 101 Cal.App.2d 93, 224 P.2d 902. Trusts 91

Where one gains property through wrongful act, he becomes an involuntary “trustee” of the
thing gained for the benefit of the persons who otherwise would have possessed it. Angeles
Securities Corp. v. Luton (App. 4 Dist. 1941) 47 Cal.App.2d 262, 117 P.2d 741. Trusts 95;
Trusts 102(1)

332. ---- Wrongful assumption of control of property, other wrongful acts

A party who wrongfully obtains the legal title to land which belongs rightfully to another, whether
he acts in good faith or not, will be held a trustee for the equitable owner. Lakin v. Sierra Buttes
Gold-Min. Co., 1885, 11 Sawy. 231, 25 F. 337. Trusts 95

Before a constructive trust can be imposed, the plaintiff must prove that the defendant's
acquisition of the property was wrongful. PCO, Inc. v. Christensen, Miller, Fink, Jacobs, Glaser,
Weil & Shapiro, LLP (App. 2 Dist. 2007) 58 Cal.Rptr.3d 516, 150 Cal.App.4th 384. Trusts 95

Where one erroneously paid funds to corporate defendant rather than to its assignee, corporate
defendant became involuntary trustee for such funds, and when individual defendants as its
officers wrote checks paying such funds to one of such individual defendants, they, as agents of
corporate trustee, were equally and individually liable for such funds. Knoblock v. Waale-
Camplan Co. (App. 1956) 141 Cal.App.2d 870, 297 P.2d 765. Trusts 104

333. ---- Wrongful acquisition of thing, other wrongful acts

Where money stolen from plaintiff was used to purchase automobile, and in absence of proof
that attorney who claimed title to vehicle was a bona fide purchaser, title equitably would vest in
plaintiff under a constructive trust theory. Pena v. Toney (App. 3 Dist. 1979) 160 Cal.Rptr. 4, 98
Cal.App.3d 534. Trusts 95

A constructive trust may be imposed in practically any case where there is a wrongful acquisition
or detention of property to which another is entitled. Weiss v. Marcus (App. 2 Dist. 1975) 124
Cal.Rptr. 297, 51 Cal.App.3d 590. Trusts 95

Preventing ex-wife from enforcing payment of one-half interest in note as awarded her by
interlocutory divorce decree until after statute of limitations had run by appealing from decree
constituted wrongful detention of ex-wife's property and ex-husband, by exercising exclusive
control over note during appeal, became a constructive trustee with duty of preserving the
property. Elliott v. Elliott (App. 4 Dist. 1964) 41 Cal.Rptr. 686, 231 Cal.App.2d 205. Trusts
103(3)

Trust may be impressed on corporate property wrongfully disposed of and accounting required of
one wrongfully acquiring it. Fornaseri v. Cosmosart Realty & Building Corp. (App. 3 Dist. 1929)
96 Cal.App. 549, 274 P. 597. Trusts 95

In a copartners' suit for an accounting and to recover one-sixth of an escrow fund received from
the sale of mining property in which the steward of the fund and an unauthorized payee
therefrom were parties, notwithstanding there was no conspiracy between the steward, payee,
and depositary to defraud plaintiff, having wrongfully come into possession of money from the
fund, the fact that they acted in good faith cannot affect the rights of plaintiff, and payee became
an involuntary trustee for plaintiff. Scott v. Symons (1923) 191 Cal. 441, 216 P. 604. Trusts
95

334. ---- Misappropriation of funds, other wrongful acts

An employee, misappropriating his employer's funds, is chargeable as constructive trustee for

amount thereof, and a trust will be impressed on property acquired by employee with such
funds. Church v. Bailey (App. 1 Dist. 1949) 90 Cal.App.2d 501, 203 P.2d 547. Trusts 101;
Trusts 354

Where bank officer made a loan of bank funds to another officer for land speculation in
consideration of receiving one-third of the profits therefrom, the funds were trust funds and any
use thereof was illegal and profits arising from their use were recoverable for the benefit of the
cestui que trust. In re Scott's Estate (1877) 1 San F.L.J. 508.

335. ---- Embezzlement, other wrongful acts

One asserting claim against corporation on account of corporation's use of trust funds was
limited to amount of corporation's property proportioned to amount of trust funds invested
therein, where part of funds was contributed from other sources. Elmer Co. v. Kemp, 1933, 67
F.2d 948. Trusts 356(1)

In action by former employers to impress constructive trusts on certain real and personal
property alleged to have been acquired by former employee with moneys embezzled from
employers, wherein employee admitted taking the money, but contended that it was done with
employers' permission, evidence supported trial court's determination that the money had been
wrongfully taken. Jud Whitehead Heater Co. v. Obler (App. 1952) 111 Cal.App.2d 861, 245 P.2d
608. Trusts 110

Judgment against former employee, which adjudged property wholly purchased with embezzled
funds to belong to former employers and which gave former employers liens on property
purchased only in part with embezzled funds, in effect gave employers money judgment only in
event there was deficiency after lien was foreclosed, and such judgment was not objectionable
on ground that employers could not have personal judgment for amount stolen and also obtain
property purchased with such moneys. Jud Whitehead Heater Co. v. Obler (App. 1952) 111
Cal.App.2d 861, 245 P.2d 608. Trusts 375(1)

Where a person has embezzled funds and used them for payment of premiums for insurance on
his life, a “trust” is created in favor of person from whom they were embezzled, and such person
is entitled to such proportion of the total insurance as the amount of premiums which had been
paid from the embezzled funds bore to the total amount of premiums paid. Brodie v. Barnes
(App. 1 Dist. 1942) 56 Cal.App.2d 315, 132 P.2d 595. Trusts 354; Trusts 374

Where there was no showing or finding as to total amount of premiums on insurance policy paid
with funds alleged to have been embezzled, court erroneously ordered insurance company to pay
total amount of policy over to claimant of embezzled funds on theory there was a “constructive
trust” of the entire policy. Brodie v. Barnes (App. 1 Dist. 1942) 56 Cal.App.2d 315, 132 P.2d
595. Trusts 374

336. ---- Larceny, other wrongful acts

Landowner's expert testimony with respect to wholesale value of water taken from owner's
property as result of public utility water corporation's negligent trespass constituted substantial
evidence in support of award of $146,501 to property owner for trespass and value of water
taken. Santa Clarita Water Co. v. Lyons (App. 2 Dist. 1984) 207 Cal.Rptr. 698, 161 Cal.App.3d
450. Evidence 571(10)

A person whose property is stolen, embezzled or misappropriated by another should be restored

to possession of property or its equivalent, if it has not passed into hands of bona fide purchaser
without notice. Church v. Bailey (App. 1 Dist. 1949) 90 Cal.App.2d 501, 203 P.2d 547. Trusts
354

337. ---- Manslaughter, other wrongful acts

Prob.C. § 258 (repealed) providing that no person convicted of murder of decedent shall be
entitled to succeed to any portion of the estate, applies the artificial standard of conviction of
murder, and relates only to succession in probate, and did not govern claim of husband named
as beneficiary in wife's life policy to proceeds of policy when husband had pleaded guilty to
manslaughter in connection with wife's death. Prudential Ins. Co. of America v. Harrison,
S.D.Cal.1952, 106 F.Supp. 419. Insurance 3484

Where insured met his death at the hands of his putative spouse under circumstances resulting
in her conviction for voluntary manslaughter, no community funds were used to pay premiums
on life policy and, prior to shooting, policy had no cash value, putative spouse had no community
property interest in policy at the moment before wrongful death was committed; thus, neither
putative spouse nor her heir at law was entitled to succeed to or be permitted to receive any
portion of life proceeds. Aetna Life Ins. Co. v. Primofiore (App. 1 Dist. 1978) 145 Cal.Rptr. 922,
80 Cal.App.3d 920. Husband And Wife 249(3); Insurance 3484; Insurance 3490

Act of decedent's husband in confronting decedent with a loaded gun, though unlawful, did not
operate to disqualify husband from inheriting from decedent when she died from fatal wound
after gun discharged where there was no evidence that husband intended to shoot, much less
kill, decedent, nor evidence that husband considered risk his conduct might pose for his wife, or
knew to a substantial certainty that his actions would result in her death. Estate of Kramme
(1978) 143 Cal.Rptr. 542, 20 Cal.3d 567, 573 P.2d 1369. Descent And Distribution 63

California public policy bars one who has deliberately and without justification killed another from
profiting from the killing whether profit be in form of inheritance or bequest, proceeds of
insurance on life of deceased or survivorship in joint tenancy. New York Life Ins. Co. v.
Cawthorne (App. 2 Dist. 1975) 121 Cal.Rptr. 808, 48 Cal.App.3d 651. Descent And Distribution
51; Insurance 3484; Joint Tenancy 6; Wills 711

338. ---- Murder, other wrongful acts

This section relating to imposition of an involuntary trust upon one who obtains a thing by fraud
or other wrongful act, and § 3517 declaring that no one can take advantage of his own wrong,
bar a murderer from recovering proceeds of policy on life of decedent. Manufacturers Life Ins.
Co. v. Moore, S.D.Cal.1953, 116 F.Supp. 171. Insurance 3484

Where premiums for policy on life of decedent who was feloniously killed by his wife had been
paid from community funds, and wife was named primary beneficiary and two daughters
secondary beneficiaries, wife was entitled to receive only one-half of the surrender value of the
policy on the date of decedent's death, with remainder to be divided equally between the
secondary or alternate beneficiaries, thereby precluding wife from profiting by her own wrong,
but preserving to her the precise interest owned by her prior to the killing. Manufacturers Life
Ins. Co. v. Moore, S.D.Cal.1953, 116 F.Supp. 171. Husband And Wife 273(1); Insurance
3484; Insurance 3490

Statute specifically applicable to severance and distribution of joint tenancy property upon
felonious and intentional killing of joint tenant by co-joint tenant governed extent of murdered
joint tenant's share that would pass as his property, not general equitable principles. Estate of
Castiglioni (App. 4 Dist. 1995) 47 Cal.Rptr.2d 288, 40 Cal.App.4th 367, rehearing denied, review
denied. Joint Tenancy 4; Joint Tenancy 12

Upon slaying of wife by husband, constructive trust was impressed upon one-half of property to
which husband succeeded as surviving joint tenant in favor of wife's heirs or devisees, other than
husband. Johansen v. Pelton (App. 1 Dist. 1970) 87 Cal.Rptr. 784, 8 Cal.App.3d 625. Trusts
95

Where husband intentionally killed wife in 1961, and then committed suicide, husband took
wife's separate property under residuary clause of her will but held same as constructive trustee,
and it became part of his estate, subject to the trust, on his death. Whitfield v. Flaherty (App. 4
Dist. 1964) 39 Cal.Rptr. 857, 228 Cal.App.2d 753. Executors And Administrators 45; Trusts
95
Though under terms of life policy, primary beneficiary who murdered insured was entitled to
proceeds, beneficiary could neither receive nor retain proceeds, since it would be unconscionable
to allow him to profit from his own wrong. Beck v. West Coast Life Ins. Co. (1952) 38 Cal.2d
643, 241 P.2d 544. Insurance 3484

Rule that primary beneficiary of life policy, who murdered insured, cannot recover proceeds of
policy should not be invoked in such a way as to prejudice rights of alternative beneficiary. Beck
v. West Coast Life Ins. Co. (1952) 38 Cal.2d 643, 241 P.2d 544. Insurance 3484

Where life policy stated that proceeds should be paid to alternative beneficiary if primary
beneficiary predeceased insured, insured clearly indicated intent that any interest her estate
might have in proceeds should be subordinate to interest of alternative beneficiary, and hence
where primary beneficiary was precluded from receiving proceeds because he murdered insured,
alternative beneficiary was entitled to proceeds as against insured's estate. Beck v. West Coast
Life Ins. Co. (1952) 38 Cal.2d 643, 241 P.2d 544. Insurance 3484

339. Undispersed appropriations

No constructive trust arose in favor of state employees for prejudgment interest on lump-sum
salary payments allowed by Senate Bill No. 91, [Stats.1979, c. 192] as Gov.C. 16840 provides
that “all money in the state treasury is appropriated for the purpose of investment and deposit,”
and as, though the SB 91 appropriation was made, no specific, identifiable funds were
segregated from other funds in either the pooled money investment account or the general fund
at any time prior to payment. California State Emp. Ass'n v. Cory (App. 3 Dist. 1981) 176
Cal.Rptr. 904, 123 Cal.App.3d 888. Trusts 91

340. Failure to insure, accident, mistake, negligence and other wrongful act

Insured cannot defeat equitable right of beneficiary by failing to act or by taking advantage of his
own wrong. Tintocalis v. Tintocalis (App. 2 Dist. 1993) 25 Cal.Rptr.2d 655, 20 Cal.App.4th 1590.
Insurance 3438

Where obligor spouse violates order in divorce action to maintain life insurance, constructive
trust may be imposed against his or her estate. Tintocalis v. Tintocalis (App. 2 Dist. 1993) 25
Cal.Rptr.2d 655, 20 Cal.App.4th 1590. Trusts 103(3)

West's Ann. Cal. Civ. Code § 2224, CA CIVIL § 2224

Current with all 2009 Reg.Sess. laws; all 2009-2010 1st through 5th, 7th, and 8th Ex.Sess. laws;
urgency legislation through Ch. 711 of the 2010 Reg.Sess.; and all Props. on 2010 ballots

(C) 2010 Thomson Reuters

END OF DOCUMENT
(c) 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

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