concurring in part; dissenting in part:
I agree with the majority decision relating to the appeal of Miller and Pugliani. There is a genuine issue of material fact which defeats summary judgment and requires a trial.
The appeal of Stewart Title & Trust of Tucson is in a clearly different category. This involves the theory of constructive trust and the limits to which it may be invoked by the court. The centerpiece from which liability springs is Markel v. Transamerica Title Insurance Co., 103 Ariz. 353, 442 P.2d 97, cert. denied sub nom. Phoenix Title & Trust Co. v. Markel, 393 U.S. 999, 89 S.Ct. 484, 21 L.Ed.2d 463 (1968).
As the majority points out, plaintiffs had an unadjudicated claim for attorneys’ fees against the assets of Trust No. 0891 in which Stewart Title was the trustee. The validity of this claim is in dispute and has yet to be tried. It should be noted that the claim is based upon written assignments of beneficial interest in the trust which were never forwarded to Stewart Title and are now apparently lost or destroyed. This has everything to do with whether or not Stewart Title is liable to plaintiffs on a theory of constructive trust, but it is not recognized by the majority of the court as material.
In January 1979, Pugliani and Miller transferred their interests in Trust No. 0891 into Trust No. 1905, a land trust also administered by Stewart Title as trustee. The land trust agreement provided that Miller and Pugliani each owned a fifty percent beneficial interest in the trust. No *313other beneficiaries were named. Stewart Title had no knowledge whatever of any interest of the plaintiffs in the trust.
The terms of the trust are very clear that the interest of a beneficiary may only be transferred by written assignment delivered to the trustee. “No assignment of any interest hereunder (other than by operation of law) that is not so executed, delivered and accepted shall be binding upon the Trustee.” Despite this, plaintiffs claim to be secret beneficiaries of the trust and would have the court impose a constructive trust against Stewart Title to satisfy their claim.
It should be noted that plaintiffs did not take steps to seize, garnish, attach, or freeze by injunction the beneficial interests of Pugliani and Miller held by Stewart Title. The claim against Stewart Title now said to give rise to a constructive trust rests upon the allegations of the complaint filed by plaintiffs, none of which are directed against Stewart Title. Plaintiffs contend that this was sufficient to require Stewart Title not to deal with the property as its contract with Pugliani and Miller required it to do. The dilemma thus created is one common to all holders of property belonging to others. If a creditor of the owner makes a demand against the holder, to whom must the holder respond? Will any claim so made interdict the performance of a contract and require the party “in the middle” to interplead at court to avoid the consequences?
The plaintiffs rely on Markel v. Transamerica Title Insurance Co. In my view the time has come for the Arizona Supreme Court to scrutinize this broad ruling and confine the remedy of constructive trust to its proper limits.
A constructive trust is a remedial device created by courts of equity to compel one who unfairly holds a property interest to convey that interest to another to whom it justly belongs.
Arm, Inc. v. Terrazas, 24 Ariz.App. 441, 442, 539 P.2d 915, 916 (1975) (emphasis added).
“A constructive trust arises by operation of law and not by agreement or intention, (citations) It is a remedial device (citation) used whenever title to property has been obtained through actual fraud, misrepresentation, concealment, undue influence, duress or through any other means which render it unconscionable for the holder of legal title to continue to retain and enjoy its beneficial interest____”
In re Estate of Rose, 108 Ariz. 101, 104, 493 P.2d 112, 115 (1972) (emphasis added).
One of the prerequisite factors necessary for the imposition of a constructive trust is the identification of a specific property, or res, in which the claimant has an interest. Amtitle Trust Co. v. Fitch, 25 Ariz.App. 182, 541 P.2d 1166 (1975). That factor was present in Markel but is not present in this case. In Markel a divorce decree had given the claimant a “one-half interest in any funds that may be obtained through” sale of certain marital real property. After the divorce, the former husband of the claimant remarried and his second wife became the titleholder of the land. She subsequently contracted to sell the land and the transaction led to an escrow at Transamerica Title Insurance Company. Learning of the sale, the claimant filed a claim against the title company and the second wife, demanding one-half of the proceeds from the sale. The title company closed the sales transaction and disbursed the proceeds to the second wife without recognizing the claimant’s interest. It is important to note that in Markel the claimant had a vested property right in the res of the trust which had been granted to her by the divorce decree. The court held the title company liable to the claimant and imposed a constructive trust on the trust assets as of the date the proceeds were received. In the present case, no vested interest belonging to plaintiffs has been established in either Trust Nos. 0891 or 1905. That is because the terms of the trust itself provide that no assignment of a beneficial interest is valid *314unless it is delivered to and accepted by the trustee. There is no evidence that this occurred. Therefore, the claim of plaintiffs in the trust res fails and with it falls the remedy of a constructive trust. See De-Mello v. Home Escrow, Inc., 659 P.2d 759 (Hawaii Ct.App.1983). For this reason, the summary judgment in favor of plaintiffs against Stewart Title should be reversed and the trial court should be directed to enter judgment in favor of Stewart Title dismissing the complaint.
While Markel can thus be distinguished, it should, in my opinion, be overruled by the Arizona Supreme Court. It stands alone on the subject of constructive trust because it imposes the remedy against a party without any finding that the property was obtained by fraud, misrepresentation, concealment, undue influence, duress or any other wrongdoing. See, e.g., In re Estate of Rose. Absent this key element to which equity rightfully responds, the imposition of the remedy is nothing more than an expedient shortcut for bypassing the judicially supervised remedies of garnishment, attachment and injunction without satisfying the requirements of notice, hearing, and the posting of security. These pre-judgment remedies and their sometimes burdensome convolutions are circumvented if all a claimant need do is voice a claim against property in the hands of another. Everyday transactions would halt at the mere suggestion, perhaps a phone call or a letter, of a claimed interest in property or to a fund of money. In my view, Markel is a broad departure from the common-law precept that a constructive trust is an equitable remedy to prevent unjust enrichment. See, e.g., Restatement of Restitution § 160 (1937).
In summary, I would direct the entry of judgment dismissing the plaintiffs’ complaint against defendant Stewart Title. The plaintiffs’ claim, if it be meritorious, lies against defendants Pugliani and Miller. They are the parties who owe money to the plaintiffs, if anyone does.