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amount was thereby acknowledged; that she should make payments of not less than $30 per month, together with interest at the rate of six per centum per annum on deferred payments; that the whole of the principal and interest should be paid within sixty months of the date of the agreement; that title to the land should remain in the seller until all money due should have been paid; that the seller should pay all taxes for the first two years and the buyer should pay them thereafter; that if, after one-fifth of the price had been paid, the buyer should be unable to meet any payment, an extension of ninety days might be had and that time should be of the essence of the contract.

[1] Three objections to the sufficiency of the complaint are now advanced by respondents. The first is that John A. Fitzgerald and the land company should have been joined as parties defendant, under section 379 of the Code of Civil Procedure, it being insisted they have some interest in the property adverse to appellant. The complaint is not defective in this particular, for whatever interest Fitzgerald or the land company had in the property has been assigned to respondents, the land company admittedly having been fully paid for its interest. Nothing is asked from either of them and they are in no way necessary parties to a determination of the respective rights of appellant and respondents in the property which is sought in this action.

[2] The second objection to the complaint is that there is an improper joinder of causes of action, in that a cause of action to have a trust decreed in land is joined with one to quiet title. But there is no claim of any title in appellant other than the equitable right to have a trust in her favor declared, and the enforcement of that right is all she asks in this action. The complaint does not purport to be one to quiet title either under section 738 or section 749 of the Code of Civil Procedure, proceedings under which sections she could not, as the holder of a mere equity, institute against the holder of the legal title. (Buchner v. Malloy, 155 Cal. 253 [100 Pac. 687].)

[3] Respondents' third and principal contention is that the complaint fails to state facts sufficient to constitute a cause of action. It is claimed it does not state facts sufficient to constitute any trust in favor of appellant, whether pro tanto or otherwise; that where one of two innocent

persons must suffer by the act of a third, he who has enabled such third person to cause the loss, in this case appellant, must bear it, and that it affirmatively appears from the complaint that if appellant ever had any right it is barred by her laches.

Appellant insists the complaint shows the major portion of the consideration for the transfer of the land was paid by her and that therefore a trust results in her favor pro tanto; that even if this position is not maintainable, respondents have no right to retain the property as a result of Fitzgerald's act in forging the assignment, and that under one theory or the other a cause of action is stated.

The complaint is not specific in many respects and certain allegations which might well be set forth, such as those concerning the dates of the transfers of the property, are omitted. But in our opinion it does state facts sufficient to constitute a cause of action and to justify the declaration of a trust in appellant's favor. This conclusion is not reached upon the theory, chiefly relied on by appellant, that a resulting trust arose under section 853 of the Civil Code, which provides: "When a transfer of real property is made to one person, and the consideration therefor is paid by or for another, a trust is presumed to result in favor of the person by or for whom such payment is made." Respondents are to be regarded instead as constructive trustees under section 2224 of the Civil Code, which is as follows: "One who gains a thing by fraud, accident, mistake, undue influence, the violation of a trust, or 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."

That the facts presented here are not embraced within the theory of resulting trusts is obvious from a consideration of the following cases, wherein that principle was considered. In Woodside v. Hewel, 109 Cal. 481 [42 Pac. 152], it was said that "The equitable principle that when, upon the purchase of lands, the consideration therefor is furnished by one person, and the conveyance is taken in the name of another, a resulting trust in the lands is created in favor of the one from whom the consideration came, is well recognized, as is also the rule that a resulting trust is created pro tanto where only a specific part of the

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consideration was so furnished." In Lezinsky v. Mason Malt Whiskey Distilling Co., 185 Cal. 240, 247 [196 Pac. 884, 888], the court declared: "The furnishing of the consideration, by reason of which a resulting trust arises, is a furnishing, not to the seller of the property bought, but to the purchaser. The whole theory upon which a trust is imposed upon the purchaser in such a case is that, as between him and a third person, it was the latter who furnished the consideration with which the property was acquired, so that it will be presumed that as between them it was intended that the purchase be for the benefit of him who supplied the means with which to make it. . . . A resulting trust is not founded on the simple fact that money or property of one has been used by another to purchase property. It is founded on a relationship between the two, on the fact that as between them, consciously and intentionally, one has advanced the consideration wherewith to make a purchase in the name of the other. 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 the case at bar there are no circumstances which raise any presumption that the parties herein intended the land for the benefit of appellant. No money was paid by appellant to respondents or on their behalf; in fact, respondents presumably considered they had acquired from Fitzgerald any interest which appellant had in the land, and that they themselves had purchased it with their own money. In Lezinsky v. Mason Malt Whiskey Distilling Co., supra, it is also said (p. 247): "Manifestly, this theory has no application to a case where the purchaser uses what he believes to be his own property in making the purchase. So far as he is concerned, the consideration for the sale is what he himself furnishes."

But in our opinion the facts alleged bring the case within the application of section 2224 of the Civil Code and entitle appellant to have a constructive trust in her favor imposed upon the property. The equitable principle contained in that section is thus stated in Mandeville v. Solomon, 33 Cal. 38, 44: "Where the circumstances of a transaction are such that the person who takes the title to property cannot

be permitted to hold and enjoy it, in whole or in part, without necessarily violating some principle of equity, a constructive trust will be raised for the benefit of the party entitled in equity to its beneficial enjoyment. It is because he holds the property, or some interest therein, which it is inequitable for him to enjoy, that the court declares the trust and fastens it upon his conscience, and wrests the property or interest from him and causes it to be transferred to the person equitably entitled to it." In Pomeroy's Equity Jurisprudence, fourth edition, volume 2, page 1919, it is said: "Where an owner has been apparently deprived of his title by a fraudulent conveyance or assignment which is void, as where he was procured to execute it by the fraudulent representation and under the conviction that it was an entirely different instrument, or where it was fraudulently executed in his name without any authority express or implied, or where, after being executed by him for one purpose, it was fraudulently altered without his knowledge or authority, so as to include the property, or where it was a forgery, and he has done no collateral act with reference to it which might amount to an equitable estoppel by conduct, and the property, by means of such transfer, comes into the hands of a purchaser for value and without notice, the original defrauded owner is not barred of his remedy." (Italics ours.)

According to the complaint, appellant intrusted Fitzgerald with the contract of sale and he by a forged assignment of it to himself and another to respondents enabled them apparently to secure the right to purchase the land and later the land itself. It is true respondents are assignees of the wrongdoer and it is not alleged they themselves were guilty of any wrongful act or were not bona fide purchasers. But the original assignment having been forged, no title to the contract passed and the rights of appellant under it cannot be defeated, even, as respondents contend, by a bona fide purchaser.

[4] Respondents object to a consideration of this point that a cause of action was stated under section 2224 of the Civil Code on the ground that it was presented for the first time in appellant's reply brief. Although it is true an appellant should state in his opening brief the points upon which he relies and that matters first raised in a

reply brief may be disregarded, this court "is undoubtedly at liberty to decide a case upon any points that its proper disposition may seem to require, whether taken by counsel or not." (Hibernia Sav. and Loan Soc. v. Farnham, 153 Cal. 578, 584 [126 Am. St. Rep. 129, 96 Pac. 9].)

[5] It is argued by respondents that inasmuch as the contract provided the title should not pass until the purchase price was fully paid, and appellant never paid the last installment, she could claim no right to the property whatever. But appellant is not asking anything of the land company, which has fully performed its obligations under the agreement of sale and transferred title to respondents upon their performance of the purchaser's obligations. Nor is she seeking to assert a legal title paramount to that held by respondents. She is endeavoring to recover only her proportionate share of the property from respondents, who have paid the last installment and who hold the title.

In support of their second contention respondents insist that appellant, by giving Fitzgerald charge of her papers, made him her business representative; that she thereby invested him with the management of her affairs and put into his hands the means of wrongdoing. Schultz v. McLean, 93 Cal. 329, 357 [28 Pac. 1053, 1058], is cited to the point that "The vendee will not be compelled by a court of equity to lose the benefit of a bargain obtained in all fairness and honesty, because of a fraud practiced upon the vendors by their own agents." However, in Walsh v. Hunt, 120 Cal. 46, 52 [39 L. R. A. 697, 52 Pac. 115, 117], wherein the court considered the liability of a maker of a promissory note which had been altered through the forgery of the maker's agent, it was held: "But, if it were conceded that the finding established carelessness or negligence by defendant, which might in some degree have contributed to the successful execution of the fraud by which plaintiff was deceived into parting with her money, it would not then constitute an estoppel. This is upon the principle that a party is not bound in transactions of this character either to anticipate or take precaution against the commission of a crime by which another may be deceived; that where it is through the instrumentality of a criminal act that the wrong is accomplished, it is the crime. and not the negligent act which is the proximate cause of

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