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NOTE.-See note to Sec. 2215. It has been held heretofore in this State that where land is purchased in the name of one person and the consideration is paid by another, the person in whose name the conveyance is taken is deemed in law to hold as trustee for the one furnishing the money.-Osborne vs. Endicott, 6 Cal., p. 149; Hidden vs. Jordan, 21 Cal., p. 92; Bayles vs. Baxter, 22 Cal., p. 575; Simson vs. Eckstein, 22 Cal., p. 580; Millard vs. Hathaway, 27 Cal., p. 119; Currey vs. Allen, 34 Cal., p. 254. Also, where a part only of the purchase money is thus furnished a trust results in favor of the person thus furnishing the money for an interest proportional to the entire purchase money.-Hidden vs. Jordan, 21 p. 92; see Robles vs. Clarke, 25 Cal., p. 317; see, however, Secs. 853, 854, and 855, ante, which modify the rule deducible from the decisions quoted. Where A purchases lands with his own funds, but before the execution of the deed enters into a verbal contract with B by which the deed from the grantor is executed directly to B, and B is at some future time to pay A the purchase money, a resulting (involuntary) trust is not created in favor of A.-McCue vs. Gallagher, 23 Cal., p. 51; but see, also, Hidden vs. Jordan, above cited. If one who has a grant of land from the Mexican Government dies intestate, and then a person mistakenly believing himself the heir sells a part of the land to another, who afterward, under the belief that he has acquired a good title and without any fraud, obtains a confirmation of the grant and a patent from the United States, the patent does not deprive the heirs at law of their interest in the property, but the patentee holds the legal title in trust for the true heirs.-Wilson vs. Castro, 31 Cal., p. 420; sec, also, Salmon vs. Symonds, 30 Cal., p. 301; Bludworth vs. Lake, 33 Cal., p. 256; see Title on Uses and Trusts, ante; see Wells, Fargo & Co. vs. Robinson, 13 Cal., p. 133; Harris vs. Reynolds, 13 Cal., p. 514; Burt vs. Wilson, 28 Cal., p. 632; Jenkins vs. Frink, 30 Cal., p. 586.

Parties to the contr

2218. The person whose confidence creates a trust is called the trustor; the person in whom the confidence is reposed is called the trustee; and the person for whose benefit the trust is created is called the beneficiary.

NOTE.-Lewin, Hill, and other writers call the creator of the trust the “settlor,” a very objectionable word. Trustor is an English word (see Webster's Dictionary,

where it is spelled “truster"), and is entirely applica-
ble to the person who creates a trust. The word “bene-
ficiary” is recommended by Story (Eq. Jur., Sec. 321),
in place of cestui que trust.


2219. Every one who voluntarily assumes a rela- What

constitutes tion of personal confidence with another is deemed a one a trustee, within the meaning of this Chapter, not only as to the person who reposes such confidence, but also as to all persons of whose affairs he thus acquires information which was given to such person in the like confidence, or over whose affairs he, by such confidence, obtains any control.

Note.-Gardner vs. Ogden, 22 N. Y., p. 343; Anderson vs. Lemon, 8 N. Y., p. 236; Moore vs. Moore, 5 N. Y., p. 256; Blisset vs. Daniel, 10 Hare, pp. 493, 536; Brock vs. Barnes, 40 Barb., p. 521; Gardner vs. Ogden, 22 N. Y., p. 350; Whitcomb vs. Minchin, 5 Madd., p. 91; Bulkley vs. Wilford, 2 Clark & Fin., p. 102. If one is employed by another to assist him in obtaining a conveyance of property, and trust and confidence are reposed in him to enable him to aid his employer in the business, and he violates the confidence and obtains a conveyance of the property to himself, he will be held “to be the trustee of his employer.”— Webster vs. King, 33 Cal., p. 348.

purpose a

2220. A trust may be created for any purpose for For what which a contract may lawfully be made, except as trust may

be created. otherwise prescribed by the Titles on Uses and Trusts and on Transfers.

NOTE.-The Titles referred to relate to real property only. This Title has reference alike to real and personal property, and considers more particularly the relations which the persons interested therein þear toward each other, or the obligations which arise from such relations.

to trustor.

2221. Subject to the provisions of Section 852, a Voluntary voluntary trust is created, as to the trustor and benefi- created as ciary, by any words or acts of the trustor, indicating with reasonable certainty:

1. An intention on the part of the trustor to create a trust; and,

2. The subject, purpose, and beneficiary of the trust.

NOTE.-It is a well settled principle that no particular form of words is requisite to create a trust; the intent is what the Courts look to.—2 Fono., p. 36, note; 3 Ves., Jr., p. 9; Fisher vs. Fields, 10 Johns., p. 495; Briggs vs. Penny, 3 Macn. & G., p. 554; Reeves vs. Baker, 18 Beav., p. 372; see Eade vs. Eade, 5 Madd., p. 119; Curtis vs. Rippon, id., p. 434; Tibbits vs. Tibbits, 19 Ves., p. 656; Jac., p. 317; Morice vs. Durham, 10 Ves., p. 536; Moggridge vs. Thackwell, 7 id., p. 85; 13 id., p. 416; Harland vs. Trigg, 1 Bro. C. C., p. 142; Wynne vs. Hawkins, id., p. 179.

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How created as to trustee.

2222. Subject to the provisions of Section 852, a voluntary trust is created, as to the trustee, by any words or acts of his indicating, with reasonable certainty:

1. His acceptance of the trust, or his acknowledgment, made upon sufficient consideration, of its existence; and, 2. The subject, purpose, and beneficiary of the trust.

Note.-Day vs. Roth, 18 N. Y., p. 453. These things are necessary to be defined.-Cruwys vs. Cole

man, 9 Ves., p. 323. See note to Sec. 2215, ante. 2223. One who wrongfully detaińs a thing is an involuntary trustee thereof, for the benefit of the owner.

NOTE.—This is a familiar principle of equity in cases of title gained through fraud, mistake, undue influence, or the violation of a trust.-Brown vs. Lynch, 1 Paige, p. 147; Wood vs. Rowcliffe, 2 Phil., p. 382;

Hare, p. 304; see Anderson vs. Lemon, 8 N. Y., p. 236. There seems to be no reason for refusing to extend the rule to all cases of wrongful detention. See note to succeeding section.

Involuntary trustee, who is.

Involuntary trust resulting from

2224. One who gains a thing by fraud, accident,

mistake, undue influence, the violation of a trust, or negligenco, other wrongful act, is, unless he 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.

NOTE.-"Gains a thing by fraud."- Mitchell vs. Cook, 29 Barb., p. 243; Brown vs. Lynch, 1 Paige, p. 147. "The violation of a trust."'--Anderson vs. Lemon, 8 N. Y., p. 236. “Other wrongful act.”—Bulkley vs. Wilford, 2 Cl. & Fin., pp. 102, 177, 181; Howell vs. Ransom, 11 Paige, pp. 538-541; Segrave vs. Kirwan, Beatty, p. 157. See, also, note to Sec. 2219, ante.



SECTION 2228. Trustee's obligation to good faith.

2229. Trustee not to use property for his own profit.
2230. Certain transactions forbidden.
2231. Trustee's influence not to be used for his advantage.
2232. Trustee not to assume a trust adverse to interest of

2233. To disclose adverse interest.
2234. Trustee guilty of fraud, when.
2235. Presumption against trustees.
2236. Trustee mingling trust property with his own.
2237. Measure of liability for breach of trust.
2238. Same.
2239. Co-trustees, how far liable for each other.

2228. In all matters connected with his trust, a Trustee's

obligation trustee is bound to act in the highest good faith toward to good

faith, his beneficiary, and may not obtain any advantage therein over the latter by the slightest misrepresentation, concealment, threat, or adverse pressure of any kind.

NOTE.--Moore vs. Moore, 5 N. Y., p. 256; Gardner vs. Ogden, 22 N. Y., p. 327, as explained by Dobson vs. Racey, 8 N. Y., p. 216; see Abbott vs. Amer. Hard Rubber Co., 33 Barb., p. 593; N. Y. Central Ins. Co. vs. Nat. Pro. Ins. Co., 14 N. Y., p. 85; Farnam vs. Brooks, 9 Pick., 212.


2229. A trustee may not use or deal with the trust Trustee not property for his own profit, or for any other purpose un- property

for his own connected with the trust, in any manner.

NOTE.-"For his own profit.”—Hoyt vs. Martense,
16 N. Y., p. 231; Sweet vs. Jacocks, 6 Paige, p. 355;

7-vol. ii.

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Phayre vs. Peree, 1 Bligh (N. S.), p. 594; 3 Dow, p. 128; Holridge vs. Gillespie, 2 Johns. Ch., p. 33; Van Horne vs. Fonda, 5 id., p. 409; Green vs. Winter, 1 id., p. 36; see Anderson vs. Lemon, 8 N. Y., p. 236; Burhans vs. Van Zandt, 7 id., p. 257. “Purpose unconnected with the trust." Thus, a trustee under two separate trusts commits a breach of trust by using the funds of one for the benefit of the other.- Ati'y Gen. vs. Newbury, C. P. C., p. 72. A trustee cannot purchase nor deal with the subject of the trust, nor purchase debts to be paid out of the trust fund, nor place himself in a position antagonistic to the trust.-Page vs. Naglee, 6 Cal., p. 241; see Gunter vs. Janes, 9 Cal., p. 643; Beatty vs. Clark, 20 Cal., p. 11; Settembre vs. Putnam, 30 ('al., p. 490.

Certain transactions forbidden.

2230. Neither a trustee nor any of his agents may take part in any transaction concerning the trust in which he or any one for whom he acts as agent has an interest, present or contingent, adverse to that of his beneficiary, except as follows:

1. When the beneficiary, having capacity to contract, with a full knowledge of the motives of the trustee, and of all other facts concerning the transaction which might affect his own decision, and without the use of any influence on the part of the trustee, permits him to do so;

2. When the beneficiary not having capacity to contract, the proper Court, mon the like information of the facts, grants the like permission; or,

3. When some of the beneficiaries having capacity to contract, and some not having it, the former grant permission for themselves, and the proper Court for the latter, in the manner above prescribed.

NOTE:-“Neither a trustee nor any of his agents (Gardner vs. Ogden, 22 N. Y., p. 327; Whitcomb vs. Minchin, 5 Madd p. 91,) must take part in any transaction concerning the trust in which he or any one for whom he acts as agent."--Ex parte Bennett, 10 Ves., pp. 399, 400; N. Y. Central Ins. Co. vs. National Pro. Ins. Co., 14 N. Y. p. 83; Hawley vs. Cramer, 4 Cow., p. 717; Iddings vs. Bruen, 4 Sandf, Ch., p. 223; Davoue vs. Fanning, 2 Johns. Ch., p. 252.

* Adverse to

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