of the defendant that he would on demand convey one equal undivided half thereof to the plaintiff, and that the defendant, though often requested, has refused and still refuses, to perform his said agreement. The plaintiff prayed that the defendant be decreed to be such trustee, and be required to execute and deliver to the plaintiff a deed for one-half of the premises. The answer was a general denial of all the facts alleged in the complaint. The court found that prior to April 1, 1902, Warren was trustee of the property; that prior and subsequent to such date the defendant was in possession of a considerable sum of money belonging to the plaintiff, and acted as the plaintiff's agent in the disbursement of the same; that prior to such date the plaintiff asked the defendant, as agent of the plaintiff, to purchase an undivided half interest in the property for the plaintiff, and to pay therefor out of the money of plaintiff then in defendant's hands as agent of the plaintiff, there being there sufficient money for such purpose, and to take the title in defendant's name, and that at that time the plaintiff directed the defendant to make the said purchase; that pursuant to such direction of the plaintiff, and acting as plaintiff's agent as to half of such property, the defendant purchased the property and took the title in his own name, one-half thereof in his own behalf, and one-half on behalf of the plaintiff, as his agent, and that the plaintiff directed the defendant to use for the purchase price of his half of the property money of the plaintiff in the defendant's hands as agent; that on an accounting had between the parties on September 5, 1903, of the money held by defendant as agent of the plaintiff, defendant informed the plaintiff that he had not applied the money of the plaintiff in payment of the half interest in the property as directed; that it further appearing upon such accounting that the sum then in defendant's hands as agent of the plaintiff was not sufficient to pay for the plaintiff's one-half interest in the property, but that there was a balance due the defendant, the plaintiff offered then to make good such balance, and sent defendant a check therefor, which defendant returned to plaintiff; that prior to the commencement of the action, plaintiff, at a time when he had in defendant's hands applicable thereto sufficient funds to pay the full agreed purchase price therefor, duly demanded of the defendant that defendant execute to him a deed for an undivided half interest in the property.

The court found, as conclusions of law, that the defendant purchased a half interest in the property for and on behalf of the plaintiff, and acting as his agent, and that the defendant is now estopped from denying that he made payment therefor out of the plaintiff's money and thus defeat plaintiff's right thereto; that the defendant took title to half of the property as agent of the plaintiff,

and holds the same in trust for the plaintiff, and that as there is not now sufficient funds of the plaintiff in defendant's hands to fully reimburse defendant for plaintiff's share of the purchase price, plaintiff ought, in equity and good conscience, to pay to the defendant the balance sufficient to complete such purchase price, to wit, $386.54; and that upon deposit thereof with the clerk, the defendant be required to execute a deed to the plaintiff for an undivided half of the premises. The judgment followed the conclusions reached by the court. From such judgment, and the denial of a motion for a new trial, the defendant has appealed.

W. P. Miller and Eugene S. Ives, for appellant. Flannigan & Flannigan, Thos. F. Wilson, and Kingan & Wright, for appellee.

KENT, C. J (after making the foregoing statement). The complaint in the action alleged a payment by the plaintiff of his half of the purchase price of the property, and an express agreement on the part of the defendant to convey to the plaintiff a half interest therein. Neither the evidence taken in the case, nor the findings of the court support the allegations of the complaint in this regard; nor do facts appear in the record or in the findings of the court which show such representations, acts, or conduct in regard to the premises as would justify the application of the doctrine of equitable estoppel. The trial court seems to have applied either the doctrine of equitable estoppel, or to have concluded that, by the action of the parties and the premises the defendant, as the agent of the plaintiff, was impressed with a constructive trust in favor of the plaintiff, his principal. This latter theory is the one on which the appellee seeks to uphold the judgment in this court.

There is no substantial conflict in the evidence. Stating it as favorably as possible for the plaintiff, it appears that Meade and Scribner were old friends living together in the same house, and had had various business transactions together. Meade had on deposit with Scribner some $5,000, against which Meade drew from time to time, Scribner acting as Meade's banker in this regard. The property in question belonged to Meade's wife, being held in trust by Warren. Scribner, who was the lessee of the property, had held an option to purchase the property. The property was offered to Scribner by Warren, the trustee, for $1,500. Scribner and Meade had several conversations about a prospective purchase of the property and its value, and it was agreed between them that the property should be purchased for $1,500. Each to have a half interest. At that time Meade had on deposit with Scribner, about $4,000, and Meade told Scribner that he could pay for his (Meade's) half interest out of the funds in his hands. There

is no evidence that Scribner ever agreed so to use Meade's money. Scribner purchased the property for $1,500, taking the title in his own name, but paying the full purchase price himself, and not any part thereof with Meade's money. Scribner took the deed in his own name, and after its receipt told Meade thereof, and offered to deed Meade a half interest. Meade asked, however, to have the matter remain in abeyance, and did not accept the deed, and no deed was ever given him. At this time Meade and Scribner were friendly, and it is apparent that up to this time Scribner intended, in making the purchase, to allow Mea de a half interest therein. Matters were allowed to remain in this state for a year and a half, Scribner being in possession of the property and expending money thereon. Differences having then arisen between them a settlement of Meade's money account in Scribner's hands was had, when Meade learned, as he claims for the first time, that Scribner had not used any of Meade's money in the purchase of the property. On such settlement it appeared, however, that Meade had checked against the fund in Scribner's hands until it was reduced below the sum of $750, which was half of the purchase price. Meade thereupon sent Scribner a check for the balance, sufficient to make the sum in Scribner's hands equal the amount of $750, and demanded a deed to a half interest in the property. Scribner returned the check and gave no deed. Meade then brought this action. Upon such a state of facts, was the district court right in its conclusion, that Scribner in his purchase of the property acted as Meade's agent as to the purchase of one-half thereof, and that as to such half Meade was entitled to a conveyance thereof upon his payment into court for Scribner's benefit a sum sufficient to cover half of the purchase price? It is apparent that there is a wide variance between the pleadings and the proof. The complaint alleges a payment by Meade of half of the purchase price, and an express agreement on Scribner's part to take the title in his own name and to convey to Meade a half interest. The proof shows, looking at it in the most favorable light to Meade, that there was an agreement between Meade and Scribner that each should have a half interest. and that Scribner should deed such half to Meade, but that Meade paid no part of the purchase price. It is clear from the evidence and the findings of the court, that there can be no recovery upon the theory of an express trust. It is also clear that there can be no recovery upon the theory of a resulting trust; for in order for such a trust to arise upon a purchase, it is indispensable that the payment should have been made by the beneficary, or that an absolute obligation to pay should have been incurred by him as a part of the original transaction of purchase, at or

before the time of the conveyance. 2 Pomeroy's Eq. Juris. par. 1037; In re Stanger, (D. C.) 35 Fed. 239; Woodside v. Hewel, (Cal.) 42 Pac. 152. The appellee claims, however, that a constructive trust has been imposed; his contention being that where it appears that an agent employed by his principal to negotiate for the purchase of land purchases in his own name and with his own money; the transaction, on account of the circumstances, will be held to be impressed with reasons of equity and justice with a constructive trust in favor of the principal.

If we could ignore the fact that the pleadings raise no such issue, and that upon the evidence the relation of Scribner was rather that of a bailee holding his funds subject to Meade's orders, than that of an agent to purchase or negotiate a purchase for Meade, we still do not think that a constructive trust could be held to be impressed. As said by Mr. Pomeroy, such trusts "include all those instances where a trust is raised by the doctrines of equity for the purpose of working out justice in the most efficient manner, where there is no intention of the parties to create such a relation, and in most cases contrary to the intention of the one holding the legal title, and where there is no express implied written or verbal declaration of the trust. * They are often termed trusts in invitum, and this phrase furnishes a criterion generally accurate and sufficient for determining what trusts are truly 'constructive.' An exhaustive analysis would show, I think, that all instances of constructive trusts, properly so called, may be referred to-what equity denominates fraud, either actual or constructive, as an essential element, and as their final source." 2 Pomeroy's Eq. Juris. § 1044. One form of such constructive trust ex maleficio is where a person obtains the title to land by means of an intentional false verbal promise to convey to a third person, and having thus fraudulently obtained the property retains it. Equity regards such person as holding it charged with a constructive trust. The trust in such a case arises wholly from the fraud, and is in most jurisdictions expressly excluded from the operation of the statue of frauds. 2 Pomeroy's Eq. Juris. § 1055.

In all such cases, however, as pointed out, fraud actual or constructive must be found. Not only is the complaint here lacking in any allegation sufficient to cover such claim, but there is no finding of the trial court of actual fraud, or of such facts as would show constructive fraud, and the evidence does not support such claim. At best, the facts disclose a mere verbal promise to purchase and convey, and a subsequent refusal. This is not sufficient to impose such trust. Furthermore, such a promise, not being in writing, is not enforceable under our statute

of frauds. Spencer v. Lawton, 14 R. I. 494. To quote again from Mr. Pomeroy: "The foregoing cases should be carefully distinguished from those in which there is a mere verbal promise to purchase and convey land. In order that the doctrine of trusts ex maleficio with respect to land may be enforced under any circumstances, there must be something more than a mere verbal promise, however uniquevocal, otherwise the statute of frauds would be virtually abrogated; there must be an element of positive fraud accompanying the promise, and by means of which the acquisition of the legal title is wrongfully consummated. Equity does not pretend to enforce verbal promises in the face of the statute; it endeavors to prevent and punish fraud by taking from the wrongdoer the fruits of his deceit, and it accomplishes this object by its beneficial and farreaching doctrine of constructive trusts."

The case of Dunphy v. Ryan, 116 U. S. 491, 6 Sup. Ct. 486, 29 L. Ed. 703, is a case almost identical with the case the appellee seeks to make upon the evidence, and the findings of the trial court. There, however, under a similar agreement as is contended is in the case before us, the defendant by cross-complaint sought to compel the plaintiff to take a deed to the property he had purchased, the converse of the case at bar, where the plaintiff seeks to obtain such deed. The court there held that the general denial of the making of the contract alleged was sufficient to let in the defense of the statute of frauds; that such a contract was clearly within the statute, it being simply a verbal agreement to convey land for a certain consideration; that a contract so void by the statute could not be enforced directly or collaterally; that the fact that the purchaser was acting as the agent of the plaintiff, as well as for himself, did not avail to take the case out from the operation of the statute, the suit being based upon, and brought to enforce, the void contract; that the contract being void under the statute, there was no obligation upon the plaintiff to accept the deed tendered to him, or to pay any part of the purchase money; that the case, neither in the averments nor in the prayer, was one for equitable relief, and that the mere breach of a verbal promise for the purchase of the lands would not justify the interference of a court of equity, there being no fraud in such refusal. The case fully meets the contentions of the appellee, and is conclusive of this appeal.

We think that the trial court in the findings made by it went outside of the issues raised by the pleadings, and furthermore, that upon the findings as made by it, and upon the evidence, the trial court was in error in its conclusions that the defendant held a half interest in the property in trust for the plaintiff, which he was obligated to convey to him.

The judgment of the district court is reversed, and the case remanded for a new trial.

SLOAN, CAMPBELL, and NAVE, JJ.

concur.

(10 Ariz. 83)

IVES v. SANGUINETTI. (Supreme Court of Arizona. March 30, 1906.) 1. ASSIGNMENTS FOR BENEFIT OF CREDITORSTRUSTS-CONTRACTS-PAYMENT OF DEBTS.

Defendant agreed to sell to plaintiff a hay crop harvested on certain ranches belonging to defendant's wife, the proceeds to be applied to certain debts of defendant and his wife; plaintiff agreeing to account to defendant for the balance. Held, that such agreement created a mere trust of such proceeds, in which the creditors had no vested interest, and that it was not an assignment for the benefit of creditors.

[Ed. Note. For cases in point, see vol. 4, Cent. Dig. Assignments for Benefit of Creditors, §§ 5, 6.]

2. TRUSTS-ALTERATION-AGREEMENT OF PAR

TIES.

Such agreement was subject to alteration or abrogation by the parties to the extent of eliminating from its provisions the payment of any money to any of the creditors named therein at any time.

3. ASSIGNMENTS-EFFECT.

Where creditors acquired no vested rights under a trust of the proceeds of certain hay sold by their debtor to which such creditors were not parties, an assignment of whatever rights they had under such agreement to the debtor did not confer on him a right of action against the buyer.

4. HUSBAND AND WIFE-WIFE'S PROPERTYSALE-ACTIONS.

Where a husband sold hay cut from land belonging to his wife under an agreement with the buyer to pay a portion of the proceeds to the creditors of both husband and wife, the buyer's failure to conform to such agreement gave rise to a cause of action to compel him to account, maintainable by the husband and wife jointly, and not by the husband alone.

5. SET-OFF AND COUNTERCLAIM-JOINT Debt. A joint debt cannot be pleaded as a set-off or counterclaim by one of two joint creditors in a suit brought by the debtor against such joint creditor alone on his individual debt.

Appeal from District Court, Yuma County; before Justice Campbell.

Action by E. F. Sanguinetti against Eugene S. Ives. From a judgment sustaining a de murrer to the counterclaim, defendant appeals. Affirmed.

Marcus A. Smith and W. E. Parker, for appellant. Peter T. Robertson and Thomas Armstrong, Jr., for appellee.

SLOAN, J. The appellee, E. F. Sanguinetti, brought suit in the district court of Yuma county against appellant, Eugene S. Ives, to recover upon two several checks aggregating $125, one being in the sum of $100, and the other in the sum of $25. The appellant in his answer admitted the indebtedness sued upon, but pleaded a counterclaim wherein he alleged that on or about the 1st day of April, 1899, he and his wife, Annie W.

Ives, entered into a certain contract with the appellee in which they agreed to sell to appellee the hay crop to be grown during the year 1899 on certain farms, belonging to said Annie W. Ives, upon the terms that appellee was to pay to the appellant and his said wife $5.50 per ton for all the hay delivered under the contract, and the balance that might be realized from the sale of said hay to be disbursed by said appellee as follows: First, the sum of $750 was to be paid to one J. W. Dorrington upon a promissory note held by him against appellant and his said wife; second, the sum of $3,958, with interest, was to be paid on a promissory note given by Ives and his wife to Gandolfo and Sanguinetti, and the sum of $550.50 to be paid to one F. L. Ewing, and credited upon another promissory note of appellant and his said wife; third, after the payment of the aforesaid claims appellee was to pay the sum of $372.50 to said J. W. Dorrington, with interest; fourth, any residue remaining in the hands of appellee after all the said claims were paid was to be paid to appellant and his said wife. The counterclaim further alleged that under said agreement 510 tons of hay were delivered to appellee which were sold by appellee for a sum not less than $5,000; that appellee failed to pay to appellant or to Ewing or Gandolfo any sum whatever on account of the notes mentioned in the agreement; that prior to the commencement of the action Ewing assigned his interest in said agreement to appellant, and that Gandolfo also assigned his interest and claim against Sanguinetti under said agreement to appellant; that the notes mentioned in the agreement had become due and payable long prior to the commencement of this action; that Gandolfo and Sanguinetti, mentioned in the agreement, prior to the assignment of Gandolfo's interest therein to appellant, had dissolved partnership; this interest it is alleged, upon information and belief, to have been two-thirds of any interest which the firm of Gandolfo and Sanguinetti were entitled to in the proceeds of the sale of the hay under said agreement. It is further alleged in the counterclaim that appellee had received from the proceeds of the sale of the hay a sum more than $925 in excess of the amount agreed by him to be paid to the said appellant and his wife in and by the terms of said agreement; and that appellee became, under the agreement, indebted to Dorrington in the amount of $783.50; that after deducting from the said $5,000, received by appellee from the proceeds of the sale of the hay, $2,805, said sum being $5.50 for each ton of hay delivered to and sold by appellee, and deducting the further sum of $783.50, due Dorrington under the agreement, there remained the sum of $1,411.50; that, of the latter sum, by reason of the assignments made to appellant by Ewing and Gandolfo of their interests in the proceeds of the sale of the hay under the agreement, appellant became entitled to the 85 P.-31

sum of $998.50, being, as alleged, the proportionate amount which would, under the agreement, have been due to Ewing and Gandolfo had no assignment been made by them of their interests. The counterclaim prayed for judgment against appellee for said sum of $998.50, less the amount sued for by appellant. To this counterclaim appellee demurred upon the grounds: First, that there was a defect of parties; second, that it failed to state facts sufficient to constitute a counterclaim; third, that it failed to constitute facts sufficient to constitute a defense, and cause of action against appellee. The demurrer was sustained by the court, and judgment rendered for the appellee for the amount sued for. From the order sustaining the demurrer, and from the judgment, this appeal is taken.

In considering the ruling of the court in sustaining the demurrer to the counterclaim the first inquiry must be to ascertain the exact nature of the agreement between Ives and his wife and Sanguinetti. Upon its face, primarily it was an agreement to sell the hay crop to be grown and harvested on certain ranches belonging to the wife of the appellant; secondarily it was an agreement between the parties regarding the disposition of the proceeds to be derived from such sale. A trust arose by virtue of the agreement that Sanguinetti should devote a part of the proceeds to the payment of certain debts owed by Ives and his wife evidenced in part by their promissory notes. In no sense can the agreement, either at common law or under the statute, be construed as an assignment for the benefit of creditors. The parties to the agreement could, at any time, have abrogated it or changed its terms to the extent of eliminating from its provisions the payment of any money to any of the creditors named. The trust was not such an one as conferred any vested right upon any of the creditors named in the agreement who were not parties thereto. In so far as the agreement read, the provisions thereof having reference to the payment of certain debts were for the convenience merely of appellant and his wife. Certainly, nothing appears in the agreement, nor is any fact alleged in the counterclaim, from which it can be inferred that the creditors named had any vested interest in the trust funds held by Sanguinetti. The beneficiaries under the trust were Ives and his wife. None of the creditors, therefore, had a right of action against Sanguinetti upon the agreement, and no assignment of any assumed interest therein carried with it such a right of action. Appellant, therefore, by taking an assignment from Ewing and Gandolfo of their assumed interests in the agreement, did not acquire thereby any right of action which he could enforce against Sanguinetti, either in this suit or in one which he might bring against the latter. Whatever may be Sanguinetti's liability upon an accounting, that liability continues, notwithstanding the

assignment, one enforceable by appellant and his wife jointly, and not by appellant individually. By the terms of the agreement it appears that the hay sold was the separate property of Mrs. Ives. She had rights, therefore, under the agreement, which could not be litigated in this action. A joint indebtedness cannot be pleaded as a set-off or counterclaim by one of two joint creditors in a suit brought by the debtor against the former alone upon his individual debt. It does not appear that Mrs. Ives has assigned her interest in the proceeds of the hay to appellant. For the reasons given the appellant cannot, in this action, require an accounting by Sanguinetti or recover judgment against him for any amount which may be due appellant and his wife jointly under the contract.

We hold, therefore, that the demurrer was properly sustained, and the judgment of the court will therefore be affirmed.

DOAN and NAVE, JJ., concur.

(10 Ariz. 78)

YOUNG v. TERRITORY. (Supreme Court of Arizona. March 30, 1906.) 1. ASSAULT AND BATTERY-PUNISHMENT.

Under Pen. Code, § 208, prescribing the punishment for assault as either a fine in any sum not exceeding $300, or imprisonment for a term not exceeding three months, a judgment imposing both a fine and an imprisonment is irregular.

[Ed. Note. For cases in point, see vol. 4, Cent. Dig. Assault and Battery, § 170.] 2. SAME.

Under Pen. Code, § 208, prescribing as punishment for the crime of assault, either a fine in any sum not exceeding $300, or imprisonment for a term not exceeding three months; and section 1013, providing that a judgment imposing a fine may direct that defendant be imprisoned until the fine be satisfied, specifying the extent of the imprisonment, which must not exceed one day for each dollar of the fine, a judgment on conviction for assault, sentencing defendant to pay a fine of $300, and, in case of nonpayment of the fine immediately after judgment, to be imprisoned for 300 days, failed to impose the imprisonment as the method of satisfying the fine under the provisions of said section 1013, and was irregular as imposing both a fine and an imprisonment. 3. SAME-EXCESSIVE TERM.

The judgment was also irregular under said Pen. Code, § 208. as imposing a term of imprisonment exceeding three months.

Appeal from District Court, Graham County; before Justice Eugene A. Tucker.

George Young was convicted of assault, and appeals. Judgment modified.

W. K. Dial, for appellant. E. S. Clark, Atty. Gen., for the Territory.

SLOAN, J. The appellant, in the district court of Graham county, was convicted of the crime of assault. He was sentenced by the court to pay a fine of $300, and in case the defendant should not pay the fine immediately after judgment to be imprisoned

in the county jail for 300 days. The appeal is from this judgment.

The punishment prescribed for the crime of assault is either a fine in any sum not exceeding $300 or imprisonment in jail for a term not exceeding three months. Section 208, Pen. Code. The judgment is ir regular, in that it imposes both a fine and an imprisonment, and for the further reason that the term of imprisonment imposed exceeds three months. A judgment imposing a fine may direct that the defendant be imprisoned until the fine be satisfied, specifying the extent of the imprisonment, which must not exceed one day for each dollar of the fine. Section 1013, Id. If the intent of the court was to impose the imprisonment as a method of satisfying the fine under the provisions of the latter section of the Penal Code, such intent is not expressed in the judgment and cannot, therefore, be given effect.

The judgment is modified by eliminating all reference to the imprisonment which leaves in full force and effect the fine of $300.

KENT, C. J., and DOAN, CAMPBELL, and NAVE, JJ., concur.

(10 Ariz. 30)

EPPERSON v. CROZIER. (Supreme Court of Arizona. March 30, 1906.) SALES BILL OF SALE - ACKNOWLEDGMENTNECESSITY.

Under Acts 1897, p. 28, No. 6, § 57, declaring that upon the sale of horses or cattle the delivery shall be accompanied by a written bill of sale signed and acknowledged by the seller, and that upon the trial of any person charged with theft of any such animal the possession of the animal by the accused without his having such a bill of sale shall be prima facie evidence that the possession is illegal, and section 55, declaring that no person shall, in originally branding animals make use of more than one brand, provided that any person may own or possess animals in many marks and brands, the same having been acquired by purchase and that bills of sale in writing properly acknowledged by the previous owner, shall be sufficient evidence of such purchase, etc., a bill of sale of cattle is not by reason of being unacknowledged, inadmissible in evidence in action for conversion of the cattle.

Appeal from District Court, Mohave County; before Justice Sloan.

Action by William Epperson against John W. Crozier to recover damages for the conversion of mares and colts. From a judg ment for defendant, plaintiff appeals. Reversed and remanded.

E. M. Sanford, for appellant. Herndon & Norris, for appellee.

NAVE, J. The appellant, William Epperson, brought suit in the district court of Mohave county to recover $2,500 alleged to be the value of mares and colts purchased by plaintiff from defendant on April 2, 1901,