(dissenting.) This ease is reserved for the advice of this court. The facts are these. Jacob Haussman and Mary Haussman were married about the year 1867. Each had been married before and each had children by such former marriage. On the 11th dajr of December, 1885, Jacob, being then in feeble health and not expecting to outlive his wife, and intending to make a provision for her after his death, conveyed by a quit-claim deed the premises described in the complaint to an attorney-at-law *140reserving to-himself the use, occupation and control of the same during his natural life. On the same day and as part of the same transaction his grantee, by a release deed, conveyed the same land to Mary Haussman. The consideration expressed in each of the deeds is “ divers good causes and considerations, and especially one dollar” received to the satisfaction of the grantor.
The Superior Court, upon evidence to which objection was made, but which was received notwithstanding, in order that all the questions might be reserved, found that the real consideration for the deed from Jacob to the attorney and from the attorney to Mary was a parol promise made by Mary to Jacob, prior to the making of those deeds, and unknown at the time to any other person, that she would re-eonvey the land to Jacob, through some third person, whenever he, Jacob, should request her to do so. It is found that sometime in July, 1888, Jacob did request her to re-convey the land to him, and that on the 26 th day of that month she undertook to comply with that request and made a release deed of the land to an attorney, which she herself signed and acknowledged and which was properly witnessed; but this deed was never executed jointly by her and her husband and was never executed or acknowledged by her husband at all. On the next day the attorney made a release deed of the same land to the husband, Jacob. Mary died soon thereafter. Neither Mary nor her husband knew at any time during her life that it was necessary to have the deed to the attorney executed jointly by herself and her husband. They were advised and believed that the deed she had made was a good and valid one to convey all her interest in the land to her husband.
The defendants in the case are the children of Mary Haussman by her former marriage. Since this suit was brought Jacob Haussman has died intestate. An administrator on his estate has been appointed, who has entered and is now prosecuting this action for the benefit of his children of a former marriage. So that as the case now stands the parties in interest are the heirs of Jacob Hauss*141man on the one side and the heirs of Mary Haussman on the other.
The claim for a judgment in damages is not pressed.
The plaintiff’s first claim for relief is, that the deed from Mary Haussman to the attorney may be reformed so as to join Jacob Haussman as a grantor with the said Mary Haussman, and that said Jacob be permitted and directed to execute the deed as a grantor. Jacob being now dead it is impossible to grant this prayer. But treating the case in this respect as though Jacob was still alive, we are met by the rule that where a deed or other written contract is defective in some particular required by statute, it cannot be reformed. In Story’s Eq. Jur., sect. 177, it is said:—“And there are other cases of the defective execution of powers where equity will not interfere; as for instance, in regard to powers which are in their nature statutable, where equity must follow the law be the consideration ever so meritorious. Thus the power of a tenant in tail to make leases under a statute, if not executed in the requisite form prescribed by the statute, will not be made available in equity, however meritorious the consideration may be. And indeed it maybe stated as generally, although not universally true, that the remedial power of-courts of equity does not extend to the supplying of any circumstance for the want of which the legislature has declared the instrument void; for otherwise equity would in effect defeat the very policy of the legislative enactments.” Bright v. Boyd, 1 Story, 478 ; Hibbert v. Rolleston, 8 Brown Ch., 571. This doctrine has been recognized and acted upon to its full extent by this court in Dickinson v. Glenney, 27 Conn., 104. In that case Maria S. Dickinson, the wife of Isaac Dickinson, united with her husband in the execution of an instrument intended as a conveyance of her land to a third party, who at the same time executed to the said Isaac a conveyance of the same, the object being to transfer the title from her to her husband. The deed executed by herself and her husband was defective in not being acknowledged by him, being in all respects her deed except in the mere signing of the same *142by him. The parties intended that the deed should be prepared and executed in such manner as to be effectual for the conveyance of the estate, and that they were not so drawn was matter of accident and mistake. That case is still further like the one before us as it now stands, in the respect that both husband and wife were dead at the time the petition was brought. The heirs of the husband were petitioners and the heirs of the wife were ■ respondents. Judge Storks gave the opinion, and, after examining the authorities, decided that the case could not be maintained.
That case is conclusive of the present one in respect to the first claim for relief. The reformation of any written contract implies that the agreement between the parties is executed. It is the correction of an executed agreement and not the performance of an executory one. But if we regard the promise of Mrs. Haussman as an executory one on her part to convey her land, the difficulty is only increased, for the executory contract of a married woman to convey land is wholly void. No court can give effect to such an agreement- by decreeing its fulfillment. Gore v. Carl, 47 Conn., 291 ; Annan v. Merritt, 13 id., 478; Dickinson v. Glenney, 27 Conn., supra ; Martin v. Dwelly, 6 Wend., 9 ; Purcell v. Goshorn, 17 Ohio, 105 ; Carr v. Williams, 10 Ohio, 305.
The plaintiff also claims to recover on the ground of a trust. All possible trusts, whether of real or personal estate, may be divided into two general classes, express trusts and implied ones. Pomeroy’s Equity Jurisprudence, section 152. Those created by the intentional acts of the parties are express. Those created by operation of law, where the acts of the parties may have had no intentional reference to any trust, are implied. At section 155 the latter class is subdivided into resulting and constructive trusts. If it be granted that Mrs. Haussman was under no disability by reason of her coverture to make contracts concerning land, it must be conceded that the conveyance of the premises to her by Mr. Haussman on her promise to re-convey upon request and her promise to do so, apparently created an express trust in the *143land conveyed. Such a trust cannot be proved by parol. Dean v. Dean, 6 Conn., 285 ; Vail’s Appeal from Prolate, 37 id., 198 ; Todd v. Munson, 53 id., 579. The plaintiff disclaims any right to recover by reason of such a trust even if it existed'—which he does not admit. Nor can he claim a resulting trust from the fact that the deeds were without actual consideration. He is estopped by his deed. Belden v. Seymour, 8 Conn., 304 ; Feeney v. Broward, 79 Cal., 525 ; Graves v. Graves, 29 N. Hamp., 129 ; Philbrook v. Delano, 29 Maine, 412. His claim is that before Mr. Haussman requested Mrs. Haussman to re-convey to him there was no trust, but that after he made that request a trust arose. It can hardly be said that the request alone made Mrs. Haussman a trustee. The request did not change the character of her promise, it only fixed the time when it became her duty to perform it. According to the claim of the plaintiff, if Mr. Haussman had never made any request for a re-conveyance, or if upon such a request the land had been revested in him, there never would have been any trust at all. B ut he insists that because the land was not re-conveyed to him upon his request therefor, Mrs. Haussman became a trustee for him by construction of law.
Pomeroy’s Equity Jurisprudence, section 155, says:— “All instances of constructive trusts may be referred to what equity denominates fraud, actual or constructive, including acts or omissions in violation of fiduciary obligation.” In another part of the same section it says that constructive trusts are sometimes called trusts ex maleficio.
The plaintiff’s brief states his claim in this part of the ease as follows :—“ The facts show constructive fraud from which equity raises a constructive trust, owing to the confidential relation of husband and wife ; ” and gives as authority for this proposition, Brison v. Brison, 75 California, 525. The civil code of California provides that “ actual fraud consists * * * in any of the following acts; * * * —a promise mfide without any intention of performing it.” Another section of that code says that “ either husband or wife may enter into any engagement or transaction with the other or *144with any other person, respecting property, which either might if unmarried; subject in transactions between themselves to the general rules which control the actions of persons occupying confidential relations with each other as defined by the title on trusts.” The case of Brisan v. Brison, supra, was a suit brought to have a trust declared. The complaint averred that the plaintiff and defendant were husband and wife. The plaintiff was the owner of the property in question, upon which there was a mortgage. In order to raise the money to pay off the mortgage the plaintiff determined to go to Arizona and engage iu business there, and was desirous of making a will before his departure, so that his property should go to his wife. But being influenced by the wish to save her the expense of probate proceedings in case of his death, and relying on her parol promise that she would re-convey to him upon his request, he made the deed to her absolute in form and took no written acknowledgment from her, but though the. deed' recited a consideration, yet in truth and in fact there was no consideration therefor, and no money was paid or intended to be paid as a consideration for the deed. The complaint also averred that the promise by which the plaintiff was induced to make the deed was in bad faith and false and made with intent on her part to deceive and did deceive the plaintiff. The complaint was demurred to. The court held the complaint sufficient on the ground that it charged an actual fraud within the code of that state. In giving the opinion the court remarked that the complaint might be sustained on theground of the confidential relation of husband and wife because of the fraud.
I look in vaiu through this case for any indication of fraud or want of good faith on the part of Mrs. Haussman. On the contrary the facts show that she made the promise to re-convey honestly and with the full intention to perform it. She did perform it so far as performance depended on her. It is well settled that the failure to perform a promise honestly made is not fraud. Feeney v. Howard, 79 Cal., 525 ; Perry v. McHenry, 18 Ill., 227 ; Wheeler v. Reynolds, 66 N. *145York, 234 ; Levy v. Brush, 45 id., 589 ; Cowan v. Wheeler, 25 Maine, 269 ; Burden v. Sheridan, 36 Iowa, 125 ; Boyd v. Stone, 11 Mass., 348. This case is entirely unlike the case of Brison v. Brison. No fraud, actual or constructive, towards her husband can be imputed to Mrs. Haussman, for she did exactly what he asked her to do, and just what she had promised to do so far as it was possible for her to do it. That the deed failed to have the effect they desired was owing to the mistake of Mr. Haussman as much as to any mistake of Mrs. Haussman. It was a mutual mistake, owing to incorrect advice as to the legal effect of that deed. It has been laid down by high authority that where parties have been mutually mistaken as to the legal effect of the transaction into which they have entered, equity will not interfere to reform the contract. Eaglesfield v. Marquis of Londonderry, L. R., 4 Ch. Div., 693 ; Pomeroy's Equity, sect. 846 ; Wheaton v. Wheaton, 9 Conn., 96. Whether or not this is the law it is not necessary to decide. In the present case the mistake is as to a statute requisite, which on other grounds cannot be supplied by any equitable interference, as already shown.
I think the Superior Court should be advised to dismiss the complaint.