an agreement, yet it arises by operation of law; it is implied, for instance, property is bought and paid for out of the funds of one person, and is deeded to another, a trust is implied in favor of the party who furnished the means. ***Constructive trusts are wholly different from implied trusts in this: They arise out of some actual or constructive fraud; they are not upon the theory of an agreement or contract, but they arise out of the violation of some duty amounting to a fraud and are in invitum, and are enforced upon the party regardless of what his intention is."

From the very nature of these trusts they can only be created by acts done in the acquisition of the legal title, and must vest in the cestui que trust the equitable title at the same time that the legal title vests in the trustee, and in cases of constructive trusts, the actual or constructive fraud upon which they arise must have been committed in the acquisition of the property to which the trust attached.

In 1 Beach on Trusts and Trustees, Sec. 180, p. 377, it is stated that, "Whenever it is shown that a fraud, either actual or constructive, has been committed in the acquisition of property, equity will raise a constructive trust in favor of the person defrauded." (See also the numerous cases cited in note 1, on said page.)

It is con

In all cases of resulting or constructive trust, there are two titles, one is legal the other equitable. The latter is the beneficial title, but when the legal title to property is an absolute one, there is no room for a trust. ceded by counsel for the respondent that acquired an absolute legal title to the policy. brief they say: "Of course the title to this insurance policy vested in Bunting, that is the very cause of the complaint. As long as he carried it without paying for

Bunting
In their

it out of the bank funds he had the right to it, but the moment he paid for it out of the funds belonging to the bank, equity thrusts upon it a trust by construction of law."

It is admitted by this statement, and such was the fact that up to the time the note was paid, the title of Bunting was as absolute as his title to any other property which he may have owned, and if it be conceded that by its payment he committed an actual fraud, and not an implied one, such payment does not raise a resulting trust in favor of C. Bunting & Co., because it was neither alleged in the complaint nor shown by the evidence that any fraud was committed in the acquisition of Bunting's absolute title to the policy.

The admission in the brief of respondent's counsel that "As long as he (Bunting) carried it (the policy) without paying for it out of the bank's funds, he had a right to it," shows that it is not claimed that fraud was committed in the acquisition of the title, but that the only fraud complained of and relied on was the payment of the note and premiums, after the absolute title of Bunting had been acquired.

The note was paid six months after, and the premiums. respectively, in one and two years after the title to the policy had been acquired. The execution and delivery of the note was the sole consideration which induced the agent of the insurance company to issue the policy, and it would have continued to be in force if the note had never been paid. Neither did the payment of the note enhance the value of the policy or benefit it in any way. Therefore, C. Bunting & Co. acquired no rights in the policy by virtue thereof.

But the payment of the second and third premiums increased the value of the policy and kept it alive, and not

withstanding these payments did not raise a resulting trust in favor of C. Bunting & Co., an equitable lien, in the nature of a resulting trust, was created in its favor on said policy and its proceeds for the amount of each of the last premiums, with legal interest.

In 2 Story's Equity Juris. (13th ed.), p. 558, Sec. 1217, it is stated that "There are liens recognized in equity whose existence is not known or obligation enforced at law, and in respect to which courts of equity exercise a very large and salutary jurisdiction. In regard to these liens it may be generally stated that they arise from constructive trusts. They are therefore wholly independent of possession of the thing to which they attach as a charge or incumbrance, and they can only be enforced in courts of equity."

Pomeroy, in his work on Equity Jurisprudence, Sec. 166, asserts that it is more accurate to describe these liens as analogous to trusts.

In Jones on Liens, Sec. 28, it is stated that "Equitable liens do not depend upon possession as do liens at law. Possession by the creditor is not essential to his acquiring and enforcing a lien."

In the case of Ferris v. Van Vechten, 9 Hun., 12, it appears that an executor of an estate who had in his hands money of the estate sufficient to pay the creditors of the same, but instead of doing so he applied these funds in the payment of taxes and of repairs, and in removing a lien upon real estate devised by said will in trust for certain beneficiaries named therein. It was held that the funds so applied were held in trust by the executor, for the benefit of the creditors, and as the devisees had the benefit of the misappropriation of the fund, it became a charge upon the devised property. The real estate was accordingly sold to satisfy the lien thereby created.

The foregoing case, and the case of Haddon, et al., v. Lundy, 59 N. Y., 320, are in point upon the question under consideration. The facts in the latter case are as follows: The defendant, Margaret Lundy, procured letters of administration on the estate of Robert Haddow, deceased, on the false and fraudulent representation that she was the widow of the deceased. Mary Haddow, the widow of the deceased, and his children instituted a suit to revoke the letters granted to the defendant, and to have letters granted to Mary Haddow, and to have certain funds of the estate, which the complaint alleged had been used by the defendant in improving certain real estate belonging to her, decreed a lien upon such real estate. The letters granted to the defendant were set aside, and Mary Haddow was appointed administratrix, and the amount of the money of the estate which the defendant had expended in buildings on her real estate was adjudged to be a lien on said real estate, and the same was ordered to be sold

to satisfy the lien. The appellate court, in its opinion, said: "A portion of the money belonging to the estate was clearly traced into the building erected by the defendant upon her own land. Although she had also invested money of her own in the same building, the trust fund could, on familiar principles of equity, be followed as an equitable lien, and therefore adjudged and enforced by any appropriate remedy." The judgment of the lower court was affirmed.

The case at bar only differs from this case in this: The trust fund instead of being expended by the trustee in improving real estate which belonged to him, was used in enhancing the value and prolonging the life of an insurance policy, of which he was the owner.

In 2 Lewin on Trusts, 897, Sec. 10, it is said that, "Whenever a trust fund is traceable into land, and the

fund constitutes a part only of the money laid out in the purchase, the court has usually given a lien merely on the land for the trust money and interest."

The same practice is stated in Perry on Trusts, Sec. 842. The principle underlying this practice is applicable to the case at bar, and when the money which belonged to C. Bunting & Co., that was expended for the benefit of the policy, is repaid to it, with interest, out of the funds realized on the policy by the appellant, the requirements of equity will have been fully met.

As the assignment of the policy to Wolstenholme, the appellant, was made without consideration, he took and held the same subject to the equitable lien of C. Bunting & Co., and the receiver of said company is entitled to have paid to him, out of the funds in appellant's hands, realized on the policy, the amount of the premiums paid on said policy, with interest thereon at the legal rate, from the time each premium was paid; and for the additional reason that, as alleged in the complaint, the insurance was payable to Bunting's estate in the event of his death, and the appellant not having paid any consideration for the assignment, or having paid any premiums on the policy, he held the same merely as trustee, and as the money paid on said premiums is traceable into said fund, he holds said policy subject to said lien and in trust for the creditors of Bunting's estate, and for his heirs.

This view of the case is supported both by the principles of equity, and the authorities herein quoted.

I concur in the conclusion and judgment announced in the opinion of Mr. Justice Miner.