Mercier

The court below found that, on the 18th day of July, 1884, Milton A. Lewis “promised and agreed to and with *609 Jules Mercier to sell to him, said Mercier, all his right, title and interest in and to the rancho Rinconada del Arrojo de San Francisquito.”

This is substantially a finding that Mercier, at that time, purchased and was entitled to a conveyance of the small interest in the rancho, which Moultrie had conveyed to Mrs. Lewis—wife of Milton A. Lewis—because that interest would appear to have been, not her separate estate, as found by the court, but property belonging to the marital community. If there is any evidence in the record characterizing this small interest as the separate property of Mrs. Lewis, it has not been pointed out, and we have been unable to discover it.

The court below found that between Hemme and the plaintiff there existed no relation of trustee or cestui que trust. If by this is meant that there was no express trust established by the proofs, the finding is well supported. But there are circumstances under which the law will raise a trust by construction and fasten it upon the conscience of a party who by circumvention has obtained for himself…