(dissenting).
The central point of this case is the fact that Hamilton McGowan was a fiduciary for his brother and for his brother’s widow. His status as fiduciary requires a conclusion that the interest of the widow is protected against his claim of title.
The terms of the treaty provide that the three-year period in which the widow must sell her interest is “reasonably prolonged if circumstances render it neces*103sary.”1 In the circumstances of this case, where a fiduciary failed to inform his alien beneficiary of her interest in the property which was the subject of his fiduciary relationship, asserted title to the property in himself, and attempted to divest the widow of her interest by a state court proceeding without notice to her, it is necessary that the three-year period be “reasonably prolonged.” A declaration that Hamilton holds the legal title subject to a constructive trust in favor of the widow, and that she must dispose of her equitable interest within a future time equal to that provided by the treaty, will fairly vindicate all interests in this case.
To permit Hamilton to neglect and abuse a familial-based fiduciary relationship as was done in this case and by doing so acquire title to the property which as fiduciary he was obligated to protect was too strong for the nostrils of an able and experienced trial judge. It is too strong for mine as well.
1. Hamilton is a fiduciary.
The District Court characterized Hamilton as a fiduciary. This factual conclusion of the trial court, necessarily determined on a case by case basis, is not plainly erroneous.
The law of fiduciary relationships is a creature of equity and gives effect to obligations of good conscience and fair dealings between persons who are in such relationship to each other that trust and confidence have been reposed by one to another, or both to each other. The underlying relationship may be what the Mississippi Supreme Court has called “conventional” in form, Ham v. Ham, 146 Miss. 161, 110 So. 583 at 584 (1926), that is, arising from familiar and defined legal relationships. These include trustee and beneficiary, agent and principal, guardian and ward, partners and joint venturers, life tenant and remainderman, executor or administrator and heirs, tenant and cotenant. Restatement of Trusts 2d2 § 2(b); 2 Scott on Trusts (3d ed.)3 § 170-21 at 1366 n. 2; 5 Scott § 495 at 3534. But, necessarily, the equitable concept of the fiduciary is not quickened by only those relationships formalized into precise “conventional” legal structures. “The relation and duties involved in it [a fiduciary relation] need not be legal, it [a fiduciary relation] may be moral, social, domestic, or merely personal.” Ham v. Ham, supra at 584 (quoting 2 Pomeroy Equity Jurisprudence (4th ed.) § 956).4
Mississippi gives very broad scope to the equitable doctrine of the fiduciary and of constructive and resulting trusts that are means of enforcing the fiduciary’s duties.
[T]he relation [of fiduciary] is not restricted to such confined relations as trustee and beneficiary, partners, principal and agent, guardian and ward, managing directors and corporation, etc. Davis v. Hamlin, 108 Ill. 39, 48 Am.Rep. 541; Cushing v. Danforth, 76 Me. 114; . 32 Am.Jur. 835, See. 991; Probst v. Hughes, 143 Okl. 11, 286 P. 875, 878, 69 A.L.R. 929. It applies to all persons who occupy a position out of which the duty of good faith ought inequity and good conscience to arise. “It is the nature of the relation which is to be regarded, and not the designation of the one filling the relation.” Davis v. Hamlin, supra. In the Probst case, supra, the Court said: “ * * * a trusteeship may arise by virtue of any relationship of the parties in which it may be- said that the one occupying the position of trustee is in duty bound to act in the utmost good faith for the benefit of the other.”
* * * * * *
*104“Wherever one person is placed in such a relation to another by the act or consent of that other, or by 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 in such a fiduciary relation with him that he is prohibited from acquiring rights in that subject antagonistic to the person with whose interests he has become associated.”
Risk v. Risher, 197 Miss. 155, 19 So.2d 484 at 486-87 (1944) (sublessee negotiating new lease from lessor, held to be in a fiduciary relationship to the lessee-sub-lessor and to hold new lease as trustee for lessee-sublessor).
In Sojourner v. Sojourner, 247 Miss. 342, 153 So.2d 803 (1963), the complaint alleged that by informal and unwritten family agreement heirs to family property conveyed their interests to a brother on his promise to transfer it to his sister by deed or will after a fixed period of years. Upon his death after 11 years the sister claimed title as against the brother’s widow, alleging that the widow had knowledge of the family arrangement. The complaint was held sufficient on fiduciary-constructive trust grounds. The court negatived the necessity for an “express” relationship and said:
[A] constructive trust for fraud or wrong, being based on the equitable principle that no one can take advantage of his own wrong, exists in almost any case where there is a wrongful acquisition or detention of property to which another is entitled.
Id. at 808. See also: Adcock v. Merchants & Manufacturers Bank, 207 Miss. 448, 42 So.2d 427 (1949). Bank employee, managing, controlling and collecting rents on bank’s land, title placed in his name for convenience, held a fiduciary and constructive trustee for bank; unnecessary to show fraud.
I turn to examination of the relationship between Hamilton and Elbert McGowan, recognizing that it need not, and possibly does not, fit precisely into the four corners of a “conventional” pigeonhole of the law. The beginning point is, of course, that the two were blood brothers. Elbert was absent in a foreign country, seldom returning home,5 in no position to protect his interest in 37 acres of Mississippi land. Hamilton managed and farmed his own and other family land adjacent or nearby, so it was natural that he be called upon to care for Elbert’s two small tracts. The terms of the arrangement agreed upon with Elbert’s land as subject matter are not in dispute. The District Court relied upon Hamilton’s own description, made in his sworn complaint in the state title confirmation suit that he filed in 1968:
Your Complainant would show that since the purchase of the land by the said E. J. McGowan from his uncle, T. J. Evans, in 1911 that he, your Complainant, has had the exclusive control, use, occupation and management of the said land. That he farmed it each and every year, and never at any time attorned to his brother or paid him anything for the use thereof; neither was the same expected or required of him.
Complainant further says that he paid all ad valorem taxes upon the land and has paid the same since his brother purchased the land in 1911 when he was away from home working on the Panama Canal, as aforesaid. Thus, for fifty-seven years between 1911 and this date Complainant has paid all the taxes and had exclusive use of the same, farming, tilling or renting the same out for the purpose of farming and tilling at all times. However, Complainant admits that he was, between 1911 and 1936, performing all of these duties without claiming title to the land as a favor to his brother and for the use of the said lands.
For more than half a century Hamilton enjoyed the permissive use of the land, *105managing and farming it along with his own and other family land as a unit through tenants. He retained the profits, paid the taxes and, as Judge Coleman points out, acknowledged his brother’s ownership of the land in a number of ways.
In Wofford v. Wofford, 244 Miss. 442, 142 So.2d 188 (1962), a son managed the real estate of his mother, exercising control over it, repairing buildings on it, and paying taxes on it. Subsequently he claimed to be owner of the property by virtue of a quitclaim deed from his mother and a tax deed pursuant to a sale for unpaid taxes. Though finding no actual fraud, the Mississippi Supreme Court held that he was a fiduciary for his mother. The court noted the holding in Ham v. Ham, supra, that had pointed out the existence of fiduciary relations other than those cast in “conventional” terms. It then held that the quitclaim deed was prima facie voidable and that the son had been unable to sustain his contention that it represented a gift. The tax deed was held to give no rights to the son:
G. W. Wofford was managing the lands at that time for his mother. His relation to his mother at that time was that of a fiduciary; and it is well-settled that a business agent or other fiduciary charged with the management of his principal’s property cannot purchase and retain a tax title to the property for his own benefit. Pomeroy’s Equity Jurisprudence, Vol. 3, Fifth Edition, p. 825, Sec. 959c, and cases cited.
142 So.2d at 197.
In Minor v. McDowell, 113 So. 576 (Miss.1927), a son managing his mother’s plantation was held to be in an agent-principal relationship with her. In a second appeal of the same case, the Mississippi Supreme Court held:
The relation between these parties as heretofore declared by the court was that of principal and agent. A cardinal requirement of that relationship is that the agent shall be at all times loyal and faithful to the interests of the principal, and he can acquire no private interest of his own in opposition to that of his principal. There is a fiduciary relation which forbids the agent in any manner to place himself of his own volition in a favored position as against the principal in respect to the transactions growing out of the relationship.
McDowell et al. v. Minor, 158 Miss. 788, 131 So. 278 at 280 (1930), Another principal-agent case is Van Zandt v. Van Zandt, 227 Miss. 528, 86 So.2d 466 (1956), discussed infra. See also Restatement of Agency § 389.
In Guiseppe v. Cozzani, 238 Miss. 273, 118 So.2d 189 (1960); 248 Miss. 588, 159 So.2d 278 (1964); and 193 So.2d 549 (Miss.1969), decedent died in 1896 leaving a life estate to his widow with remainder over to his nieces, nephews and a sister. The widow died in 1933. A niece residing in Mississippi conspired with her (the niece’s) son to make herself sole owner to the exclusion of the other heirs, who were residents of Italy. The son petitioned to be appointed administrator of the estate, and in that petition and his subsequent petition to close that estate, made false representations the effect of which was that his mother was the sole person entitled to the property. He represented that his mother and decedent’s sister named in the will were the only persons entitled to share in the estate, and that the sister had died and after diligent search and inquiry he had ascertained that she had no living descendants. In fact he had made no search or inquiry. He represented that no other persons had any interest in the estate and that his mother was sole owner. He made no mention of the nieces and nephews in Italy. In 1958 ten Italian nieces and nephews filed suit, 25 years after they became entitled to interests in the property. The Mississippi Supreme Court, reversing the trial court, considered two related issues: whether the interest of the Italian heirs as cotenants had been cut off through adverse possession by the cotenant Mississippi niece, and whether the Italian heirs were barred from relief by the limitations pe*106riod of § 710 of the Mississippi Code of 1942 [now § 15-1-9, Miss.Code Ann. 1972], which is extended by “concealed fraud.” See 193 So.2d at 552-53, 554.
With respect to the first of these issues, the court held that the Mississippi niece was a tenant in common with the Italian nieces and nephews, and therefore in a fiduciary relationship with them which prevented her from holding by adverse possession without an “ouster” through actual knowledge to them of her adverse claim or through conduct so unequivocal that knowledge by those out of possession must be necessarily presumed. Id. at 553 — 54. As to the second issue, the court held there was concealed fraud, with the result that “these complainants are not barred from maintaining this suit in equity by virtue of the provisions of the Mississippi Code of 1942 Annotated, Section 710.” Id. at 554. Thus the holding on the concealed fraud issue went to the timeliness of the suit. That holding does not purport to limit the right to relief against a fiduciary to situations in which he has committed concealed fraud. In Wofford v. Wofford, supra, the fiduciary was held liable although there was no fraud or misrepresentation. 142 So.2d at 194. See also Adcock v. Merchants & Manufacturers Bank, supra. In the instant case the District Court elected to use gentler words than fraud, but if fraud is a requisite it was present here.6
[A]s between persons sustaining a fiduciary or trust or other confidential relationship toward each other, the person occupying the relation of fiduciary or of confidence is under a duty to reveal the facts to the plaintiff (the other party), and that his silence when he ought to speak, or his failure to disclose what he ought to disclose, is as much a fraud at law as an actual affirmative false representation or act.
Van Zandt v. Van Zandt, 227 Miss. 528, 86 So.2d 466 at 470 (1956) (holding that a cotenant having powers of attorney from the other owners was their agent in consummating a sale of timber from the land and was a fiduciary, required to exercise loyalty and good faith and to report to his principals the fact of the sale and to pay over their share of the proceeds).
The response of appellants to the fiduciary issue is twofold. First, they say that Hamilton was not a manager as in Wofford, or an agent as in Minor, or a 'tenant in common and agent as in Van Zandt. Hamilton could be characterized as a “manager” as in Wofford though with fewer managerial duties and less stringent fiduciary obligations. One could describe him as an “agent” as in Minor, though with fewer duties as agent and fewer burdens as fiduciary. And he can be termed as “agent” as in Van Zandt though less formally authorized. But dialogue such as this misses the mark. The existence of fiduciary obligations is not limited to “conventional” forms and does not turn on rubrics. Ham v. Ham, supra; Risk v. Risher, supra; Sojourner v. Sojourner, supra. It is clear beyond cavil that if the same arrangement had been made but Hamilton were a cotenant with his brother, Hamilton owning Vio and Elbert 9/io, Hamilton would be a fiduciary.
Because of the mutuality of their interests, possession and obligations, the relationship between cotenants is confidential and fiduciary in nature. Each has a duty to sustain, or at least not to assail, the common interest, and to sustain and protect the common title.
Nichols v. Gaddis and McLaurin, Inc., 222 Miss. 207, 75 So.2d 625, 629, 78 So.2d 471 (1974); Guiseppe III, supra. Lacking the Vio, he is no less bound to deal fairly and honorably with his brother.
Appellants’ second response is that if there were a fiduciary relationship it terminated upon Elbert’s death and Hamilton owed no obligation to the widow. This is discussed in part 3, infra.
*107 2. Hamilton’s obligations as fiduciary.
Fiduciary relationships are of varying degrees of dignity, and some impose more stringent obligations than others. 5 Scott § 495 at 3534. We need not define the outer limits of Hamilton’s obligations with respect to his absent brother and to the land that was the subject of their arrangement. At a minimum he was under several duties that dispose of this case. He was under a duty of loyalty to his brother, to act to Elbert’s benefit and not to profit at his expense. Restatement §§ 2(b), 170 and Comment a; 1 Scott § 2.5 at 39; 5 Scott § 495 at 3534. He had a duty to administer the subject matter solely in Elbert’s interest. Restatement § 170(1) and Comment a. He was under a duty to use reasonable care and skill to protect the property that was the res of the relationship. Restatement § 176; 2 Scott § 176. He may not compete with the beneficiary in the acquisition of property. 5 Scott § 504. It is but to state the obvious to say that Hamilton could not in derogation of duties such as these claim as his own the land that was the subject matter of the relationship of trust and confidence.7 A fiduciary who has acquired a benefit by a breach of his duty as fiduciary is under a duty of restitution to the beneficiary. Restatement of Restitution § 138.
A fiduciary is required to supply information to the beneficiary concerning administration of the trust only upon request. See Restatement § 173. But the law of trusts, embracing as it does both common sense and honorable dealings, applies a different rule where the fiduciary’s personal interest collides with his duty to the beneficiary. If he deals with the beneficiary on his own account he is under a duty “to deal fairly with him and to communicate to him all material facts in connection with the transaction which the [fiduciary] knows or should know.” Restatement § 170.8 See also Van Zandt v. Van Zandt, quoted supra.
It is immaterial that Hamilton made no promise to Elbert of specific duties that he would carry out. The consequences of a fiduciary relationship flow from the relationship as a matter of law. 1 Scott- § 2.5 at p. 40.
3. Hamilton is a fiduciary for the widow.
Appellant’s second response to the District Court’s view of Hamilton as a fiduciary is that even if he were under fiduciary obligations to his brother the relationship was terminated by Elbert’s death, and Hamilton had no duty to the sister-in-law that his counsel describe as “a native Honduran woman”
“whom he never knew, never saw and only heard of through the [United States] Consul.” This could not be more wrong. Upon the death of Elbert, his rights as the beneficiary of a fiduciary obligation descended to his widow in the same manner as did the land itself. Miss.Code Ann.1972, § 91 — 1 — 9; Restatement § 142.9
*108If a beneficiary of a trust dies intestate, and if his interest does not terminate on his death, the devolution of his interest is governed by the same rules of descent and distribution as govern the descent and distribution of a corresponding legal interest. . . . [I]f the trust property is real estate, the interest of the beneficiary passes to his heirs. (Footnotes omitted.)
2 Scott § 142.
Hamilton continued in possession of the land, enjoying the use and profit, and assessing it in the name of the estate of which the widow was the sole beneficiary (subject to the “three-year plus reasonable prolongation” provision of the treaty). The courts have- characterized in varying ways the precise interest of the alien in circumstances such as those before us. The appellants refer to it as a fee simple determinable.10 Whatever its precise character, the widow had an interest in the land, commencing at her husband’s death and extending thereafter for three years plus any reasonable prolongation thereof. With respect to her interest Hamilton continued to be a fiduciary as he had been for her husband.
As with respect to Elbert, the maximum perimeters of Hamilton’s obligations to the widow need not be marked. Under the narrowest, most minimal standards of faithfulness, fair dealing and the trust and confidence that under-gird fiduciary relations, Hamilton was bound to notify her that he was a fiduciary of certain land in which she had a [fee simple determinable] interest and that she was now the beneficiary of the obligations which he owed with respect to the land and to the owner thereof. Notice to her and action by her was the only way in which the interest to which his obligations attached could be preserved from destruction, for he had no power to sell for her. He would have been obligated to give her notice of circumstances that might cause her to lose her rights to a stranger. “No one is required to watch the clerk’s office to see that those in possession of property in privity with him or in subordination to his title are not acquiring rights adverse to him.” Nichols v. Gaddis and McLaurin, supra, 75 So.2d at 633. Inarguably he was compelled to inform her that if she failed to timely act he intended to deal with the res for his own account and adversely to her by himself claiming as an heir of his brother. Van Zandt v. Van Zandt, 86 So.2d at 470, quoted supra; Restatement § 170(2).
The situation here is similar to that in which the subject matter of a fiduciary relationship is a leasehold interest. The fiduciary may not secure a renewal of the lease for his own benefit. Risk v. Risher, supra; 2 Scott § 170-21. Like a fiduciary-lessee in possession and seeking a renewal for himself, Hamilton draws his right to possession from someone other than the beneficiary; also he made no effort to “evict” his beneficiary by terminating his relation with her during the “term” — in her case three years- — but sought, and secured, through channels independent of her and without notice to her, the interest available upon the termination of her interest.
4. Hamilton's breach of fiduciary obligations.
From his brother’s death in 1957 until this suit was filed in 1971, Hamilton made no attempt to communicate with the widow, although he had been in*109formed of her status and her name and address by an official report sent to him in 1957 by the U.S. consul in Panama. His lame explanation that he didn’t believe that his brother was married was no explanation at all, and the District Court so treated it. Even if he was unwilling to believe that his brother had married “a native Honduran woman,” he knew the name, address and identity of the person who held herself out to be Elbert’s wife, and who had been accepted by the United States Consul in Panama as Elbert’s wife for purposes of the Consul’s Report11 and to whom his personal effects had been turned over.
The result in this case would be the same if Hamilton’s failure to inform the widow were done without improper intent. But we are not left to guess at his intent. His daughter, an experienced businesswoman, handled payment of the taxes for him. Beginning around 1951 she had attempted, but unsuccessfully, to have the assessments changed from Elbert’s name to her father’s.
In 1968 Hamilton filed his “confirmation suit” in Mississippi state court claiming title by adverse possession to the land. The District Judge referred to this as an “attempted divestiture of the widow”. At no time had he given notice to the widow that he intended to claim adversely the land that for half a century he had held permissively. See footnote 8, supra. Hamilton named as parties to the suit his brothers and sisters, the widow of a deceased brother other than Elbert, and “unknown heirs, if any of E. J. McGowan.” Elbert’s widow was not named as a party. Process was had on various named defendants, their addresses having been given. The remaining process was by publication addressed to “unknown heirs, devisees and executors, if any of E. J. McGowan deceased, whose whereabouts, places of residence and post office addresses are unknown.” At this time, the District Court found, Hamilton “made no effort to locate [the widow], or have process directed to her by name at her last known address.” Also, as the trial judge found, he did not allege, as required by Mississippi law, Warren v. Clark, 230 Miss. 873, 94 So.2d 323 (1957), that he had joined all parties interested in the land so far as they were known to him and could be ascertained by diligent inquiry. Such an allegation would have been false.
Hamilton took a default judgment in the confirmation suit. The assessment to 27 of the 37 acres12 was changed shortly thereafter from “E. J. McGowan estate” to Hamilton’s name. Oil had been discovered on the land at a date not revealed by the record. Beginning in late 1958 and continuing to the filing of this suit Hamilton participated in a series of oil leases, royalty contracts, and similar documents relating to the property in question. Elbert’s widow died in 1969. Around 1970 the heirs of the widow, residents of Honduras, learned of the land through persons interested in oil development. Thereafter the widow’s sister brought this suit. In the District Court Hamilton claimed a parol gift of the land but wholly failed to establish it, and the appellants have abandoned that claim.
The facts here are remarkably parallel to those in Guiseppe. There the nephews and nieces in Italy were uneducated people who knew nothing of the United States and its courts and legal records. The “native Honduran woman” of this case had a fifth grade education, and spoke little, if any, English and, so far the record discloses, knew nothing of her husband’s 37 acres in Mississippi. In each case a knowledgeable resident was *110on the scene in Mississippi.13 In both cases the resident with no notice to the distant members of his family, attempted to claim adversely to them. In both cases the resident employed state court procedures as a device to exclude his alien relatives. In Guiseppe the son affirmatively misrepresented in the state court suit. In this case Hamilton omitted an element of pleading that would have required that he reveal the facts or swear falsely. The Mississippi Supreme Court, in Guiseppe III, 193 So.2d at 553, treated with unconcealed disdain the failure of the resident to carry out his duty of diligently seeking out heirs in Italy.
The District Judge in this case found that the state court confirmation suit did not deprive the widow of her interest because as a matter of law Hamilton’s permissive use and possession of the land was not adverse at least until 1957, and because due process was violated by failure to give her notice of the suit. The court then found with respect to the three-year period provided by treaty that “until [the widow and her heirs] were made aware of their interest, the circumstances were such as to require a prolongation of the three year period in which to divest themselves of their inherited interests” (emphasis added), and that plaintiff had filed this suit within a reasonable time after she learned of her interest.
As I understand Judge Coleman’s analysis it is this: the widow loses, but not because of the judgment in the confirmation of title suit, the validity (or lack of) which he does not discuss. She loses because she failed to sell her interest within three years and it terminated by operation of law in 1960. Title fell like a ripe peach into the lap of Hamilton, not under the judgment in the confirmation suit but because he was the sole remaining heir of Elbert entitled to take.14 Judge Coleman declines to “reasonably prolong” the three-year period because the widow knew that her husband had family in Mississippi and could have inquired, and, in any event, she was put on notice of her husband’s ownership by the Mississippi public records.
Uniformly the courts agree that what is an allowable period in which the alien must dispose of his interest, whether under a statute calling for “reasonable time,” or one calling for a term of years, with a “reasonable prolongation,” requires case by case analysis of the circumstances. Scharpf v. Schmidt, 172 Ill. 255, 50 N.E. 182 (1898) (commencement of suit for partition two and a half years after alien’s death held to comply with two years plus reasonable prolongation); Ahrens v. Ahrens, 144 Iowa 486, 123 N.W. 164 (1909) (50 years after alien’s death held outside of “reasonable time” statute where no “excusing facts or circumstances” existed); Pierson v. Lawler, 100 Neb. 783, 161 N.W. 419 (1917) (same treaty provision as at bar, alien failed to prove circumstances showing necessity for prolongation of eight years). Fischer v. Sklenar, 101 Neb. 553, 163 N.W. 861 (1917), points out that the original and specific term of a treaty providing for such a term plus reasonable prolongation merely prevents the state from limiting the term to a shorter period. To refuse to permit such further time as is reasonable “would, for all practical purposes, render this [prolongation] provision of the treaty nugatory, while like any other instrument, it should be construed to give it practical effect rather than to make it ineffectual.” 15 Id.
*111I find no other case involving similar treaty provisions in which the issue of breach of fiduciary relationships has been presented. In Miller v. Clausen, 299 F. 723 (CA8, 1924), relied upon by Judge Coleman, the decedent died in 1911, the owner of Nebraska land, leaving a sister Catharina, residing in Nebraska, and a father, brothers and sisters, and other kin, all residing in Germany. The father, Hans, died in 1916, having failed to exercise his treaty-given right to sell, which was for a reasonable time after the death of the decedent. The Alien Property Custodian seized the property in 1919. Catharina filed a petition in Nebraska state court in 1922 for a decree of heirship, and that court entered a decree that she was the only heir of decedent qualified to take title to the real estate. She then sued the Alien Property Custodian for possession of the property. The Eighth Circuit rejected the Custodian’s argument that Catharina took, if at all, by inheritance from the father so that his title having failed, she took nothing, and held that she took directly as the heir of decedent. No contention was made that Catharina was in a fiduciary relationship to her father or her German kin.16
The District Judge in this instance made the factual analysis that the case law requires, and found that the widow had no knowledge of: (a) the provisions of the treaty, (b) her inheritance, and (c) “the attempted divestiture” [by Hamilton], nor did her heirs have such knowledge. He concluded that a prolongation was required, and that it should extend until the heirs had knowledge of their interest. Without a tip of the hat to the plainly erroneous rule, Judge Coleman reverses these findings and holds that no extension was necessary.
His conclusion of no necessity for prolongation has two bases, the duty of the widow to inquire whether her husband owned Mississippi land and the constructive notice to her by the Mississippi recording statutes. The first founders upon the duty of the fiduciary-adverse claimant to tell her the facts. The recording act argument was advanced by the fiduciary in Guiseppe and rejected by the Mississippi Supreme Court:
All of the nephews and nieces of Frank Toney, except Mary Cozzani, lived in the Republic of Italy, at the time of his death in 1896. They, thus, lived some 4,000 miles from the shores of the United States. They were uneducated people who knew nothing about the United States, its laws, its courts and its legal records. How could this Court or any court hold that these illiterate people, 4,000 miles away, were given actual notice or the equivalent thereof by the filing of pleadings and deeds in the Warren County Chancery Clerk’s Office in Vicksburg, Mississippi?
Guiseppe III, supra, 193 So.2d at 554. We find no comparable case in which recording acts have even been considered as a relevant factor. Necessarily the cases will often concern aliens who by reasons of distance, family separation, language, and educational barriers, do not know of their interests in land in the United States and are delayed in learning. To give to the local recording acts the effect proposed by Judge Coleman substantially erodes the possibility for “reasonable prolongation” in such cases and makes the prolongation provision of limited utility. See Fischer v. Sklenar, supra.
The three-year provision of the treaty implements state policies against alien ownership of land and in favor of repose of land titles. The constructive trust is *112the usual equitable means of enforcement against the fiduciary who has secured for himself a benefit that in fairness and honorable dealings belongs to his beneficiary. Sojourner v. Sojourner, supra; Adcock v. Merchants & Manufacturers Bank, supra; Restatement of Restitution §§ 160, 190, 199, and see also § 195; Restatement § 1(e). A declaration that Hamilton holds legal title but as constructive trustee for the widow, with a duty to account to her, will vindicate her interest with respect to the past. It will vindicate the interest of the state to repose of title.17 Under the circumstances the interest of the state against alien ownership of land will be protected by a requirement that the widow dispose of her equitable interest within three years (plus reasonable prolongation) of the end of the litigation declaring her interest.
I have discussed this case under the law of fiduciary relationships and trusts. Precisely the same consequences attach, however, if it is approached in terms of a confidential relationship, which can exist where there is no fiduciary relation, and particularly arises between persons in a familial relationship where one reposes confidence in the other and such other abuses the confidence placed in him. 1 Scott § 2.5. The same result also ensues if one applies plain vanilla estoppel.
I have no doubt that the courts of Mississippi, like the Mississippi federal District Judge, would not permit this fiduciary to enrich himself by the abuse of a position of trust within his family. I respectfully dissent from the majority opinion which does permit that unfortunate and inequitable consequence.
. The District Court held that the heirs of the widow are entitled to the same protection as she would have had. No party questions this conclusion. For convenience I refer to the interests of widow and heirs as though the widow were still living.
. Hereinafter “Restatement.”
. Hereinafter “Scott.”
. In Ham the persons involved were partners, but the court chose not to rely upon that “conventional” foundation but rather to look to their closer and more intimate relations.
. Twice between 1911 and his death. In his passport Elbert showed Hamilton as the person to be notified in the event of his death.
. The facts that require a conclusion of fraud are dismissed in part 4, infra.
. He could not even purchase the property at a sale, foreclosure or otherwise, even though he paid a fair consideration, because this would place in conflict his personal interest and his duty as fiduciary. Restatement § 170, Comment b; 2 Scott § 170.2. It would be strange indeed if, without paying anything, he could by silence maneuver himself into ownership of that which he could not purchase at a fair price.
. The principles here involved are parallel to those of the law of adverse possession. One who has come into possession permissively must evidence his intent to claim adversely by acts of occupation sufficient to demonstrate hostile possession. As the trial judge noted in this case, permissive occupation is so usual by persons in familial relationships that acts which might be sufficient to demonstrate to strangers hostile possession may not be sufficient with respect to family members. Similarly, before a tenant can claim adversely against his cotenants there must be “ouster” by actual knowledge to the cotenants, or the equivalent. See discussion of Guiseppe III, in part 1, supra.
. Hamilton was a fiduciary with respect to the widow for another reason also. Although there was no administration of Elbert’s estate in Mississippi and Hamilton had no status as representative thereof, he purported to act as representative. He changed the tax assessment to read “E. J. McGowan estate” and until 1968 taxes paid by him were shown on *108the records as received from that estate. Whatever his precise legal status, as the person in possession of the decedent’s property pursuant to an agreement with the decedent and holding himself out as authorized to act on behalf of the estate, he was under fiduciary obligations to the heirs of that estate.
. “There is much discussion in the cases as to the nature of the title which nonresident aliens held under the terms of this treaty. Some authorities denominate it a base or qualified fee, and others as a determinable fee. The terminology is not of controlling importance.”
Pierson v. Lawler, 100 Neb. 783, 161 N.W. 419, 420 (1917).
. Report of the Death of an American Citizen, Form FS-192. Under familiar evidentiary rules this official certificate would almost certainly be admissible in a court, against hearsay objections, to prove the truth of the matter asserted therein, a much higher threshold to pass than that for notice necessary to trigger the attention of a fiduciary.
. There is no explanation of why the assessment on the other ten acres was not changed.
. ' For many years Hamilton, in addition to farming, had engaged in securing and putting together oil leases.
. Under § 91-1-3 Miss.Code Ann. 1972, the brothers and sisters of Elbert would inherit. Some or all of those other than Hamilton appear to have deeded their interests to him. In any event, the confirmation suit appears to have been valid with respect to them.
. Modern cases hold that after the treaty period has run its course the alien’s estate is defeasible as against the state, and subject to be defeated by an action to declare the property escheated. Until the action is brought *111the alien retains the power to convey title good against the world. Dutton v. Donahue, 44 Wyo. 52, 8 P.2d 90 (1932); Abrams v. State, 45 Wash. 327, 88 P. 327 (1907); Louisville Ins. Co. v. Comm., 147 Ky. 72, 143 S.W. 1044 (1912).
. Assuming the Custodian would have had standing to raise such an issue, there is no mention of any fidiciary relationship during decedent’s lifetime and upon his death an administrator was appointed and took possession of the property, although Catharina was permitted to live on it.
. In Guiseppe, 25 years had elapsed since the Italian nieces and nephews acquired title. During that time the Mississippi niece had sold off three parcels of land and granted a utility easement. The Supreme Court remanded for an adjudication of respective ownership interests and an accounting of net rentals and sale proceeds from 1933 to 1967, the date of the decision.
See also Sojourner v. Sojourner, supra, in which the Mississippi court held that, if the obligations were proved, the brother’s widow, who held legal title by inheritance from her husband, would hold as constructive trustee for the sister.