ON APPLICATION FOB REHEARING.
de GRAFFENRIED, J.The able and exhaustive brief filed by counsel for appellees on this application for a rehearing, which has been carefully and candidly considered, deserves a reply at our hands.
It seems to us that the equitable principles upon which our conclusions in the original opinion in this case are based flow naturally and logically from the facts as we find them to exist in the record. For this reason ive did not load the opinion down with citations of authorities.
1. In this case there was a plea of the statute of frauds. Appellee stresses the proposition that, as the agreement on the part of Roberts and Boyle to pay for appellee in cash' the boot which was to be paid by Dean and take a mortgage back from Dean to secure this cash payment rested in parol, therefore the statute of frauds defeated Dean’s right of recovery. On this subject counsel for appellee cite many authorities, among them the following: Lehman v. Lewis, 62 Ala. 129; Long v. King, 117 Ala. 423, 23 South. 534; Preston v. McMillan, 58 Ala. 84; Whaley v. Whaley, 71 Ala. 159; Tilford v. Torrey, 53 Ala. 120; Watkins v. Carter, 164 Ala. 456, 51 South. 318; Bourke v. Callanan, 160 Mass. 195, 35 N. E. 460; Reaves v. Garrett, 34 Ala. 564; Hughes v. Letcher, 168 Ala. 314, 52 South. 914; Patton v. Beecher, 62 Ala. 579; Brock v. Brock, 90 Ala. 86, 8 South. 11, 9 L. R. A. 287; Moseley v. Moseley, 86 Ala. 289, 5 South. 732; Smith v. Smith, 153 Ala. 504, 45 South. 168; Moore v. Campbell, 102 Ala. 445, 14 South. 780; Butts v. Cooper, 152 Ala. 375, 44 South. 616; Mitchell v. Wright, 155 Ala. 458, 46 South. 473.
*238The courts in the cases had under discussion, resulting or constructive trusts not tainted with actual fraud, and we certainly have no quarrel with the doctrines announced in those cases. Under the facts in this case, if we read the evidence correctly and have come to what appears to be the real truth of this matter, an actual fraud was perpetrated upon appellant. “Lord Hard-wick said That the court adhered to this principle, that the statute of frauds should never be understood to protect fraud, and therefore the court will not permit the statute to protect it.’ ” — Reach v. Kennedy, 1 Ves. 125; 1 Perry on Trusts (4th Ed.) § 226.
“It is a principle of universal prevalence that an agent must not put himself, (hiring the agency, in a position which is adverse to that of his principal. — 1 Parsons on Contracts, p. 93. This rule cannot, perhaps, be more comprehensively and concisely stated than as we find it in the American notes to Keech v. Sanford, 1 Lead. Cases in Eq. 53: “Wherever one person is placed in such relation to another, by the act or consent of that other, or the act of a third person, or of the law, that he becomes interested for him, or interested with him, in any subject of property or business, he is prohibited front acquiring rights in that subject anvtagonistic to the person with whose interests he has become associated.’ ” — Scottish Union & National Insurance Co. v. Dangiax, 103 Ala. 388, 15 South. 956; Davis v. Hamlin, 108 Ill. 40, 48 Am. Rep. 541; Waller v. Jones, 107 Ala. 331, 18 South. 277; Kent v. Dean, 128 Ala. 600, 30 South. 543.
“Where an agent to purchase purchases for himself, he acquires nothing thereby, though he contributes of his own means to effect it, and the product will belong to his principal.” — Bergner v. Bergner, 219 Pa. 113, 67 Atl. 999.
*239“Where an agency has been established, the burden of showing that the relation between the parties has changed before the transaction in question rests with the party affirming such change.” — Bergner v. Bergner, supra.
It seems clear, therefore, that upon reason and authority the complainant, Dean, under the facts of this case, is entitled to the relief which this court has decreed to him, and that the statute of frauds constitutes no defense to this suit.
2. Dabbs bought the land upon which he has seen proper to erect his improvements after he had been notified of complainant’s claim. He probably trusted Roberts and Boyle to protect him; but, as he bought with full knowledge of complainant’s rights, he made the improvements at his peril, and we know of no principle of equity under which he can claim reimbursement for the value of the improvements so made.
The application for a rehearing is overruled.