It is alleged in the complaint that John Potter was the owner in fee of the half league of land therein described; that he devised the same in fee to James K. Polk Potter, one of his sons; that the title of the devisee was conveyed to John Bidwell; that Bidwell conveyed to the plaintiff and Perrin L. Solomon a of the half league, which is also *42described in the complaint, whereby they became tenants in common and owners in fee of the last mentioned tract of land, together with all the estate, right and title that James K. Polk Potter held therein; that while the plaintiff and Solomon were in possession and the owners thereof as such tenants in common, the other six heirs of John Potter, deceased, “ set up some claim, or pretended claim,” to the half league of land, but that “ their pretended claim of title and interest in said property, particularly in the last named tract, was only colorable, and absolutely null and void, as this plaintiff is informed and believes to be true;” that Solomon negotiated with the six heirs of John Potter for the purchase of all their right, title, etc., in the-half league of land; that he procured William Meek to advance the purchase money, and take the conveyance from the heirs in his own name as security for the purchase money; that Meek conveyed the title he thus acquired to O. 0. Pratt, who paid him the purchase money he had advanced; that Pratt conveyed to the defendant, Maria S. Solomon, the executrix of P. L. Solomon, deceased, the title he acquired through the deed of Meek to that portion of the half league of land which Bidwell had conveyed to the plaintiff and Solomon; that Meek and Pratt severally took their conveyances of the title • in trust for the plaintiff, Solomon and Bidwell; and the defendant, Maria 8. Solomon, also took the title conveyed to her by Pratt in trust for the plaintiff as to the undivided half of the last mentioned tract, each of the grantees having full notice of the trust and the facts in relation thereto; that the plaintiff tendered to Maria S. Solomon his share of the purchase money and expenses, and demanded of her a deed as to his undivided half of the premises, which she refused. The plaintiff seeks to hold her as his trustee, and compel her to convey to him whatever interest she acquired in his undivided half of the premises through the series of conveyances, commencing with that of the six heirs of John Potter to Meek.
The defendant, Maria S. Solomon, demurred to the complaint, and the demurrer was overruled.
There is no allegation that there was any express contract *43between P. L. Solomon and the plaintiff, by which Solomon undertook to purchase for the use or in trust for the plaintiff, the title or claim of the heirs of John Potter. The averments showing the capacity in which the purchase was made and ■ the position of the plaintiff in reference to the transaction are, that by the purchase from Bidwell they became tenants in common in fee of the tract of land; that Solomon “ as the tenant in common of the plaintiff” entered into a negotiation for the purchase from the heirs, etc.; that Solomon “ for and in behalf of this plaintiff, and to perfect their title and to remove all clouds therefrom,” purchased all the title of the heirs, etc.; that Solomon negotiated with Meek to advance the purchase money, and to secure its repayment to Meek “ by an agreement and understanding with said Meek, that the said title so purchased was to be conveyed by the said heirs to the said Meek in trust by way of security for the payment of said money, and for the use and benefit of this plaintiff and the said Solomon,” as to their tract of land and of Bidwell as to. his tract of land, and “ with that understanding ” the heirs conveyed to Meek. There are other aver-1 ments of a character similar to the last. ISTo one of these averments amounts, nor do all of them combined amount to the allegation of an express contract between the plaintiff and Solomon in respect to purchase. There being no express agreement, there was no express trust between them, as to the title so purchased; and the plaintiff must rely, as he does mainly in his brief, upon the trust arising by operation or construction of law, out of the relation subsisting between the plaintiff and Solomon as tenants in common, and the fact of the purchase of an outstanding or adversary title by Solomon.
We do not here question the doctrine of Van Horne v. Fonda, 5 John. Ch. 407, which is approved by Mr. Justice Story, in Flagg v. Mann, 2 Sum. 520, and followed in Lee & Graham v. Fox, 6 Dana, 176, and very many other cases, that one tenant in common cannot purchase an outstanding title or incumbrance on the joint estate for his exclusive benefit, and use it against his cotenant, but that the purchase will inure to the benefit of* the cotenant also, upon Ms making *44contribution; and it is, perhaps, too firmly founded on well recognized and admitted principles of equity to be now doubted. But the facts presented in the complaint do not require or permit the application of this rule. 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 bi-m and causes it to be transferred to the person equitably entitled to it. It is as necessary in establishing and enforcing such a trust that there should be trust property as that there should be a trustee and cestui que trust; and indeed the relation of trustee and cestui que trust cannot exist or be declared in cases of implied trust, in the absence of a subject matter to which the alleged trust relates. The plaintiff must allege that the defendant holds the title or some interest in certain property which it is inequitable for him to enjoy as against the plaintiff, for that is the subject matter of the action, and in its absence there is nothing which the Court can order to be transferred to him. Here the title in fee was not the subject of the trust, for the parties rightfully hold that as tenants in common. The only right or title that the plaintiff has attempted to specify as the trust property, is the title derived through the conveyance made by the heirs of John Potter to Meek. This is expressly shown to amount to neither a right, title nor interest in the land. The claim of the heirs is directly alleged to be void, and the same is argumentatively stated when it is alleged that the title in fee passed from John Potter, by virtue of the conveyances first mentioned, to the plaintiff and Solomon, as tenants in common. A trust in a void title cannot be enforced against the plaintiffs by the defendants. It will be of no value to the plaintiff if transferred to him, and the Court will therefore retirse to order; so vain a thing as the *45transfer of the undivided half of nothing. Whether parties may not contract that one of them shall purchase, for the use of both, a claim, whether well or ill founded, is a question that does not arise here, hut an implied trust cannot be raised in respect to a claim that is expressly alleged to be null and void.
Judgment reversed and the cause remanded, with directions to sustain the demurrer to the complaint.