is sold by the trustee even at public sale, he cannot purchase. If he does so, he will still be considered, at the option of the cestui qui trust, a trustee by equitable construction.' This rule does not proceed on the ground of fraud, but because of public policy. It is the same policy as that which forbids a sheriff, for instance, from purchasing at a sale under an execution. No fraud may exist in point of fact; no fraud is presumed in law; but public propriety would be outraged if such acts were permitted, and hence their prohibition. When they do occur, the wrong inflicted is redressed through the medium of a constructive trust.3 This rule applies not only to those cases in which the trustee or agent for sale buys directly from the beneficiary (in which case, indeed, an element of fraud through undue influence is introduced by which the transaction is vitiated), but also to purchases at public auction, where all the world has a chance to buy; and it makes no difference whether the purchase has been advantageous or not; in either event the cestui qui trust or principal, as the case may be, has the right to have it rescinded.* The purchase, however, may be affirmed at the option of the cestui qui trust.5 It is a disputed point whether the rule applies to sales made adversely to the trust. Thus it has been ruled that if a trust estate is sold under an adverse judgment, it is entirely compe See notes to Fox v. MacKreth, 1 Lead. Cas. Eq. 92, and Hill on Trustees, 248 (4th Am. ed.), and notes. 2 See Yeackel v. Litchfield, 13 Allen, 419. 3 Hill on Trustees, 159 (248, 4th Am. ed., and notes); Michoud v. Girod, 4 How. 504; Davoue v. Fanning, 2 J. C. R. 252; Leisenring v. Black, 5 Watts, 303; Staats v. Bergen, 2 C. E. Green, 554; Miles v. Wheeler, 43 Ill. 123; Kruse v. Steffens, 47 Id. 112; Blauvelt v. Ackerman, 5 C. E. Green, 141; Grumley v. Webb, 44 Missouri, 444; Roberts v. Roberts, 65 N. C. 27; Carter v. Thompson, 41 Ala. 375; Harris v. Parker, Id. 604; Scott v. Umbarger, 41 Cal. 419. See, however, Birdwell v. Cain, 1 Cold. 301. Davoue v. Fanning, 2 John. C. R. 253; Boerum v. Schenck, 41 New York, 182; Washington R. R. v. Alexandria R. R., 19 Grat. 592; Campbell v. McLain, 1 P. F. Sm. 200; Ives v. Ashley, 97 Mass. 198. Even if the trustee buys, not for himself, but for a third party; North Baltimore Asstn. v. Caldwell, 25 Maryl. 420. 5 Ives v. Ashley (supra); Yeackel v. Litchfield, 13 Allen, 419; Perry on Trusts, 198; Hill on Trustees, 249 (4th Am. ed.). tent for the trustee to bid. The weight of authority, however, is, perhaps, the other way." Trustees are very frequently allowed to bid at their own sales, but in so doing their conduct is watched with great jealousy.3 95. A constructive trust will also arise if a person obtains from a trustee the trust property without paying value for it, although without notice of the trust. In such a case he will be held to be a trustee by construction.* A constructive trust may also arise under a contract. Where a contract has been entered into for the sale of an estate, equity, as it looks upon things agreed to be done as actually performed," considers the vendor as a trustee of the legal title for the purchaser, and the purchaser as a trustee of the purchase-money for the vendor. The method of enforcing these trusts is by a bill to compel the conveyance of the legal title, or, in other words, a bill for specific performance; and the subject will be considered. when that equitable remedy is treated of. Constructive, like resulting trusts, do not fall within the statute of frauds. 1 Fisk v. Sarber, 6 Watts & Serg. 18; Chorpenning's Appeal, 8 Casey, 315; Hill on Trustees, 160 (250, 4th Am. ed.). 2 Hill on Trustees, ubi supra; Perry on Trusts, & 205. Cadwalader's Appeal, 14 P. F. Sm. 293; Dundas's Appeal, Id. 325; Tennant v. Trenchard, L. R. 4 Ch. App. 537-547. 4 Hill on Trustees, 172. 5 Ante, p. 49. 6 Hill on Trustees, 171. 1 Infra, Part III., Chap. 1. 101. Power of married women over sepa-, 109. rate estate. 102. Liability of separate estate to her engagements; Johnson v. Gallagher. 103. Rules in the United States upon this subject. Wife's Equity to a settlement. 112. To what property it attaches. 104. Restraints on anticipation. 96. It is well known that at common law a husband acquired a life estate as tenant by the curtesy of England in his wife's inheritable estates in realty, provided there was issue of the marriage born alive,' that he had power to alien her chattels real, and that he also became entitled to her personal property in possession, and to her choses in action, provided he reduced them into possession during coverture, or by administration if he survived her. This was the case not only as to the property of a feme coverte of which she held the legal title, but also as to that in which she had only an equitable interest. If, for example, a fund were held by a trustee for the benefit of a woman, and she were to marry, her husband would have had the right to demand payment to himself, and his receipt would have been a sufficient discharge.2 In many States of the Union birth of issue is no longer a requisite to tenancy by the curtesy. 2 Hill on Trustees, 407; Perry on Trusts, 626. 11 This right of the husband was, however, subject to this qualification, viz., that, if, in order to reach the equitable property of the wife, he were obliged to come into the court of chancery, equity would compel him, at her request, to make a suitable provision for herself and her children. This right of the wife was what is known as her equity to a settlement. It grew out of the general maxim that he who seeks the aid of a court of equity must do equity; and was, therefore, at first supposed to be enforceable against the husband, only in those instances wherein he was compelled to resort to the assistance of a chancellor for the purpose of reaching his wife's property. It was, however, decided in Elibank v. Montolieu that the benefit of this rule could be claimed by the wife as plaintiff, and this is now the settled law.2 97. The English common law rule existed originally in most of the United States. It has, however, in many, if not all of them, been altered by statute, and the property of married women has been freed from the grasp of the husband's authority, and from liability for his debts and engagements; and the common law rights of the husband in his wife's property have recently been somewhat modified in England by a statute passed in 1870, by which the property of married women is partially secured to them, and trustees may be appointed to take charge of the same on application to the court.3 98. Reasons similar to those which have led to these legislative enactments, had long ago in England induced the Court of Chancery to interpose its extraordinary jurisdiction for the protection of married women, and this object was effected by the creation of what is now so well known as the equitable separate estate of femes covertes-which not only owes its existence to equity, but which is governed, in many particulars, by rules differing from those which are incidental to ordinary legal and equitable estates, and which the courts have found necessary to lay down in order to attain the desired end. This equitable separate estate may be defined to be an estate created by, and originally recognized only in, courts of equity, 1 Elibank v. Montolieu, 1 Lead. Cas. Eq. 497, and post, Sec. 109. Elibank v. Montolieu, 5 Vesey, 737. 33 and 34 Vic., c. 93. See notes to Hulme v. Tenant, 1 Lead. Cas. Eq. 481 (4th Eng ed.). for the purpose of securing the beneficial enjoyment of property to a woman during coverture-this purpose being effected through the medium of a trust whereby the ordinary marital rights of the husband over his wife's property are excluded, so far as the same are in contravention of the feme's enjoyment of her estate. It will be seen, hereafter, that while the objects which the courts had in view, in creating the equitable separate estate, were to exclude the husband's control, to free the property from liability for his debts, and to secure to the wife its beneficial ownership, yet the decisions upon this subject have not been uniformly successful in accomplishing the desired results. It may be observed here that while the separate use trust is of an exceptional character, yet it is based upon very broad principles which occasionally manifest themselves in other equitable doctrines as much at variance with the ordinary common. law rules as the one now under consideration. Thus it has been pointed out by a learned judge that not unfrequently a strife occurs between the will of the donor and the public policy which forbids restraints upon alienation, or which renders property in which a party has a beneficial interest subject to the grasp of his creditors. Yet it has occurred in many instances that both of these branches of public policy have been, to a certain extent, infringed, because equity has thought it right to allow a donor to make a gift upon such terms, and subject to such restrictions, as he might see fit." 99. It has been stated already that the object of securing to a wife the enjoyment of her estate, was effected through the medium of a trust. It is not, however, necessary that a trustee should be expressly nominated. It was, indeed, at one time doubted whether a trustee would not be necessary, but it is now settled that where there is a gift to a married woman, and no 1 When the settlement to the separate use of a married woman is made in pursuance of an ante-nuptial contract, no policy of the law is violated. It is simply the fulfilment of a contract. Lewin on Trusts, 120. 2 See Wells v. McCall, 14 P. F. Sm. 212, (per Agnew, J.); Dodson v. Ball, 10 Id. 492. 3 By Lord Cowper in Harvey v. Harvey, 1 P. Wms. 125. |