Bardon v. Hartley

Winslow, J. We have carefully examined the evidence, and are satisfied that the findings are fully supported thereby, [80] and hence the question for decision is simply whether the judgment is supported by the findings. This question also must be .answered in the affirmative. The court having found that no complete contract, either oral or written, was ever entered into between Bardon and Hartley with reference to the purchase of the lands, there can, of course, be no decree for specific performance. The court will not make a contract for the parties. The only other ground upon which the plaintiff can claim relief is upon the ground that there has arisen a trust ex maleficio in his favor in the lands. Cutlet v. Babcock, 81 Wis. 195. The ground upon which such trusts have been recognized and enforced is that the cestui que trust, relying upon some promise of the fraudulent trustee, has surrendered a right, or omitted some act for his own protection, by virtue whereof the fraudulent trustee has been enabled to acquire to himself the legal title, the enforcement of which legal title would amount to a fraud upon the cestui que trust. N o' such case is presented here. The appellant has neither lost nor surrendered any right in reliance upon any promise on the part of either Hartley or Nelson. He did not even discontinue his action until several months after Nelson's purchase, and after he knew that Nelson refused to recognize that he had any rights in the property. His rights in the property, if he had any, were just as valid and enforceable after Nelson's purchase as before. By the Court. — Judgment affirmed.