The bill in its final shape is not a bill to declare a parol trust ex contractu, and so is unaffected by the decision in Patton v. Beecher, 62 Ala. 579. It is a bill to set aside complainants' conveyance of land as having been procured by fraud, and to hold defendant as a trustee ex maleficio to account for the proceeds of the sale of the land made by defendant to third parties. "Fraud, imposition, mistake, in the original transaction, may constitute the purchaser, or donee, a trustee ex maleficio." Patton v. Beecher, supra. The bill charges that defendant procured the conveyance from complainants on the promise that he would sell the land and divide the proceeds with them, and the gist of the fraud charged is that "defendant at the time of making the said representations and of procuring said deed from grantors had the fraudulent intent of appropriating said land or the proceeds thereof to his own use and benefit and of not accounting to said grantors for their interest in said land." This sufficiently charged actionable fraud. Clarkson v. Pruett,201 Ala. 632, 79 So. 194. And, this being true, the rest follows as a matter of course.
Reversed and remanded.
ANDERSON, C. J., and GARDNER and MILLER, JJ., concur.