(concurring.)
While I concur in the law as the same is stated, and the result reached, by my Brethren, I, nevertheless, feel constrained to- add a few words, in view of some of the statements contained in the opinion of Mr. Justice Straup with regard to the testimony in the record. I do this, not because the testimony in the opinion is stated incorrectly, unfairly, or improperly, but because I fear that, in referring to the case hereafter as a precedent, it may be assumed that the conclusions reached iu this case were based on certain elements which, in my judgment, are not in the case.
In summing up plaintiff’s testimony and the reasons why a trust ex maleficio should be declared. Mr. Justice Straup, among other reasons, gives the following: “That the land, worth more than $15,000, was bid in by Arnold for $5,100, a sum less than the mortgage indebtedness.” From this — although, no doubt, not so intended — no other inference could be deduced than the one that Mr. Arnold obtained the title to the land for the purpose of reaping a large profit. It is true that Mrs. Chadwick placed such a value upon the land, but the testimony of a number of qualified and disinterested wit*63nesses is to tbe effect that the value of the land was no more than the amount at which it was bid in at the foreclosure sale. It further appears that after the foreclosure sale the land was publicly advertised for sale for a long time prior to the sale of it to Mr. Emert, and could have been boug’ht at the price paid for it by him. Moreover, the sheriff’s sale was open to all bidders,' and no one bid more than Mr. Arnold bid for it. If we view the matter of value, therefore, from the standpoint of the witnesses alone, the testimony is overwhelmingly against Mrs. Chadwick. But if we add to this the further circumstance, no court would be justified in finding that Mr. Arnold did not bid in the land at a fair valuation.
It appears that the land was placed in the hands of at least one real estate agent -for sale; that he inspected it with a view of setting a price upon it; and that another man, who was a large owner of lands in the vicinity, also inspected it,, and was well qualified to express an^opinion as to its value, testified that the land was worth not to exceed $5,000, and that he would not pay that sum for it, while the real estate agent testified that it was worth about that amount. In view of these facts, which, to my mind, are conclusive with respect to the value, Mr. Arnold cannot be said to have been actuated in what he did by the expectation of reaping a large profit out of the land; and this feature, therefore, in my judgment, ought not be considered as an element in the case. But, even after eliminating this feature — as Mr. Justice Straup well says — there was at least some kind of an agreement between Mrs. Chadwick and Mr. Arnold with respect to his acquiring the title to the land at the foreclosure sale and its disposition thereafter. What this agreement was the parties to it do not agree, and the court has made no findings respecting its terms and conditions. Taking Mrs. Chadwick’s version of it and that of the only other witness who testified in her behalf upon that subject, I was strongly inclined to the view that the agreement amounted to no more than that Mrs. Chadwick should have the right to repurchase the land from Mr. Anrold at the agreed price of $2,500 to be paid for by her with interest from time to time as she was able to do so. *64If the agreement amounted to no more than tbis, and being in parol, it was invalid because within the statute of frauds. This conclusion was" deduced, to some extent at least, from the fact that Mrs. Chadwick had absolutely no defense to the note and mortgage, and hence could not have been prejudiced in any way by not appearing in the foreclosure action. Moreover, she said that she was to have the land reconveyed to her free of all incumbrances.
While I have no doubt that Mrs. Chadwick was not misled nor injured by the i foreclosure proceedings, nor by the sale thereunder, I am not SO’ clear that she was not misled with regard to her right to redeem the land from foreclosure sale. The majority of this court are firmly of the opinion that in view of all the facts and circumstances a trust ex maleficio arose by reason of which Mr. Arnold should be adjudged as holding the land in .trust for Mrs. Chadwick. In this regard I feel constrained to yield to their judgment. The judgment of two out of three, where all have equal opportunity to examine and judge of the facts, is, in my judgment, stronger than the judgment of one. Under such circumstances I feel constrained to yield to their judgment. I do so with less hesitancy in this case for the reason that if my judgment, as first conceived, should be wrong, Mrs. Chadwick would be left without redress, while, on the other hand the court may, in its decree, protect the interests of all and do complete justice between them in accordance with the equities in favor of each.