: Plaintiffs filed their bill praying for a determination in equity that a certain house and lot is owned by plaintiff McCreary subject to a land-contract .made by-her to her coplaintiffs, as against defendant Shields, who is-a purchaser of the said property from the State on a mistaken supposition;, (as plaintiffs claim) that the lot defendant Shields' bought’was an adjacent vacant lot spoken of in the* testimony as lot L. ' Plaintiffs also pray for an injunction against ouster proceedings and for other! equitable .relief. ' ' :
Defendant Shields answered and filed a cross bill-asking that she be decreed to 'be the owner of the-premises in question and for other equitable relief.
On November 27,1925, plaintiff McCreary and her husband (who died in 1946)' received a warranty; deed, in which the description -covered premises spoken of in the testimony as lot L, a vacant lot, but the grantees and evidently the grantors also in-said deed -supposed the description to cover the premises spoken of in the testimony as lot K. Under that deed, possession has been continuous up to and including the time of the hearing in the trial-court, by plaintiff' McCreary and her husband -and after his death by plaintiff McCreary and those claiming for her or under her authority; thus was covered a ’period of over"15 years before the deed .to *292the- State hereinafter mentioned. So far as concerns any right, title, interest or claim of defendant, under the showing in this record plaintiff; McCreary became the legal owner of lot K by adverse possession on November 27,1940, and she and her husband became equitably the owners by the entireties of lot K on November 27, 1925.
An agreement by Mrs. McCreary to sell to her coplaintiffs,. Mr. and Mrs. Malde, for $2,500, is dated August 24, 1946. The Makies are now in actual possession of the premises under that agreement.
. The State through delinquent tax proceedings received title to the premises, lot K, June 3, 1941, and deeded the same to defendant Shields, March 27, 1947, for $150. During its ownership, the State very evidently made no effort to collect rent from any of the plaintiffs, none of whom knew that the State had title until the ouster proceedings had been begun in 1947.
. In the meantime plaintiff McCreary, and her husband during his lifetime, had paid the taxes on lot L. supposing that to be lot K. The drafter of the deed to McCrearys had evidently considered that the county line was in the middle of a parkway now existing between 2 double lanes along the so-called Eight Mile road, one double lane of cement being for westbound traffic and the other double lane for eastbound traffic, whereas, in fact, the county line was in the center of the southerly (eastbound) traffic lane. The discrepancy was 53 feet.
In the county line was the starting point from which the distance to the corner of the lot in question was measured on TIubbell avenue, as per description in the deed to McCrearys.
The mistake was common as to several lots on Hubbell avenue and several years ago, by inter*293change of deeds and confirmatory court decree unknown to the McCrearys, was corrected as to several of other lots about which the same mistake had occurred.
The conclusion is clearly supported by the testimony that the public officials that had to do with the forfeiture to the State of title to the lands in question, all supposed that the taxes for which the title of McCrearys to lot K was forfeited to the State, were levied against the neighboring vacant lot..
Defendant Shields admits that she supposed the lot she bought was a vacant lot. The State sold for only $150 property worth $2,500 and never sought rent in the 5 years the State owned the title. It is clear that all 3, the State, the plaintiffs and defendant Shields all supposed until after the deed to Shields, defendant, that the title to 'the McCreary house had not been forfeited to the State.
The trial court evidently acted on the theory of a mutual (or common) mistake as to identity of the lot. The court did not question the absoluteness of a forfeiture to the State of the title to land for nonpayment of taxes.
The identity of the lot to which the forfeiture' is, in equity, to be considered applicable, is the controlling question in the instant casé. Not only are the equities in favor of plaintiff McCreary very strong, but the controlling facts claimed by her are clearly established and for the most part beyond controversy.
The trial court'in effect awarded lot K to plaintiff McCreary, subject to the land contract to her co-plaintiffs, the Makies, and required repayment to defendant of the $150 which she paid the State hs well as certain costs and expenses incidental to the transaction, a total of $337.63. The State has had its money and no reason is apparent why it should complain. Defendants did not object that the State *294•was not made a party. Defendant Shields has no just ground for complaint that she is not allowed to unjustly enrich herself out of the “error, common to all 3 parties interested, the State, the plaintiffs ánd defendant Shields.
. “Doctrine of ‘unjust enrichment’ is that person shall not be allowed to profit or enrich himself inequitably at another’s expense.” American University v. Forbes, 88 NH 17 ([syllabus 6] 183 A 860).
“Unjust enrichment of a person occurs when he has and retains money or benefits which in justice and equity belong to another.” Hummel v. Hummel, 133 Ohio St 520, 528 (14 NE2d 923).
[ “A constructive trust is imposed upon a person in order to prevent his unjust enrichment. To prevent such unjust enrichment an equitable duty to convey .the property to another is imposed upon him.” Restatement, Restitution, pages 642, 643.
“A constructive trust arises not from agreement but from operation of equities in order to satisfy demands- of justice.” Union Guardian Trust Co. v. Emery (syllabus 8), 292 Mich 394.
“Constructive trusts arise by operation of law, not by agreement or from intention, 'and are raised • by a court of equity whenever it becomes necessary to prevent a failure of justice.” Digby v. Thorson (syllabus 4), 319 Mich 524.
“Fraud is not necessary to give rise to a construc- ! tive trust, but if circumstances are such as to render it inequitable for the holder of the legal title to retain the same, the court may charge it with a trust in favor of the equitable owner.” Digby v. Thorson (syllabus 2), 319 Mich 524.
On a bill in chancery to set aside sale of lands by ' State land office board, we have declared the board’s grantees to be trustees ex maleficio holding title for *295the benefit of defrauded party, for fraud preceding the State’s acquisition of title. Gulf Refining Co. v. Perry, 303 Mich 487, 491, 492.
The instant case, so far as concerns defendant Shields, falls fairly within the rule as to unjust enrichment.
We do not intend by this opinion to reverse our rulings in Darby v. Freeman, 304 Mich 459, and Lowrie & Webb Lumber Co. v. Ferguson, 312 Mich 331.
Plaintiffs in their bill prayed that the court decree lot K to plaintiff McCreary and lot L to defendant Shields. Defendant Shields by her testimony disclosed that lot L is worth much more than the amount of $337.63 awarded to her by the decree appealed from.
The decree of the trial court awarded both lots K and L to plaintiffs and required the payment to defendant Shields of $337.63, as moneys paid by defendant.
For cases in which this Court has determined alternative remedies where parties by their common or mutual mistake as to the identity of property have acted to their detriment, we have in mind Hardy v. Burroughs, 251 Mich 578, in which we say, per syllabi:
“Owners of lot on which house was constructed by mistake should be given privilege of taking improvement at fair value or of releasing lot to builders at fair value.
“If owners of lot on which house was constructed by mistake refuse to take improvement or convey lot at fair value, conveyance to builders upon payment of fair value may be decreed.”
Also, Rzeppa v. Seymour, 230 Mich 439, per syllabus 5:
“Where one builds a house on another’s land by mistake, a court of equity does not follow the com-*296moil-law rule denying all relief, but follows the more lenient rule of the civil law (CL 1915, §13211 [CL 1918, §629.11 (Stat Ann § 27.1957)]), and permits the owner of the land to elect whether to pay the value added to the land by the building, or take the value of the land.”
The decree of this Court will award lot K to plaintiffs and will direct defendant to execute to plaintiffs a proper quitclaim deed thereof. In lieu of such execution this decree may be recorded in the office of the register of deeds of the county with like effect as though such deed had been executed and delivered. Said decree will further provide that defendant Shields shall receive the sum of $337.63, which amount may be deposited in the office of the county clerk by plaintiffs for defendant’s benefit, or in lieu of such sum said defendant may at her option, to be exercised by filing a notice thereof in the office of the county clerk and serving a copy on the plaintiffs within 30 days after the filing of the decree of this Court, be entitled to receive from the said plaintiffs a quitclaim deed of lot L in proper form to permit it to be recorded.
Circuit court commissioner Cody was joined as a defendant in order that he might be enjoined from proceeding further with an ouster proceedings brought by defendant Shields. Such ouster proceedings should proceed no further.
Except as herein modified, the decree appealed from is affirmed. A decree will be entered in this Court in accordance with this'opinion. No costs, neither side having in full prevailed.
*297Butzel, Carr, and Bushnell, JJ., concurred 'with Reid, J. North, C. J., and Dethmers, J., concurred in the result.