(dissenting).
The district court in the case at bar made the following finding of fact:
“That during the month of June 1951, the respondent, Stanley Pitcher, and one William Henry Syrup, now deceased, made and entered into an oral agreement for the purchase and sale of certain real estate situated in the County of Pembina and State of North Dakota, (describing the same) for an agreed price of $1600.00 to be paid by the buyer to the seller upon delivery of merchantable title. That shortly thereafter the parties, together with others went to the office of one Ross McIntosh, an attorney in the City of Cavalier in the aforesaid county and state, and there arranged with him to handle the details of the transfer and left with said attorney the purchase money, said attorney to use said money to pay the balance of a purchase contract on the land sold (and other lands) and otherwise attend to details of the sale and transfer.”
We have repeatedly held that the findings of the trial court are entitled to appreciable weight. Gunsch v. Gunsch, N.D., 67 N.W.2d 311, 326, and cases cited. To *148my mind there is sufficient evidence to support that finding.
Stanley Pitcher, the petitioner and respondent in the instant case claims that he made an oral agreement with William Syrup for the purchase of a certain 80 acres of land in Pembina County for $1,600 cash and seeks specific performance of that agreement. The petitioner was handicapped in the presentation of this evidence by the fact that William Syrup died before the contract was completely executed. Petitioner, therefore, could not testify to the conversation actually had between them. Several witnesses, however, testified that Syrup had told them that he had sold his land to Pitcher. While those witnesses were related to Pitcher the credibility was for the district court. Then after that original agreement Stanley Pitcher secured the promise of A. C. McCurdy for a loan to finance the deal. Thereafter William Syrup, Stanley Pitcher and A. C. McCurdy appeared in the office of Ross McIntosh, an attorney at Cavalier. It appears from the testimony that the talk there confirmed this oral agreement already had.
The arrangements made at that conference were for the purpose of carrying out the oral agreement for sale and purchase between Syrup and Pitcher already had. Syrup had a contract with the State Land Department for the purchase of 160 acres of land of which the 80 acres involved were a part. He showed a statement that he owed $1,542.35 on the contract. Mc-Curdy then placed the $1,600 Pitcher was to pay for the 80 acres in trust with Ross McIntosh for the double purpose of paying up Syrup’s contract with the state to clear Syrup’s title and simultaneously to pay Syrup for the 80 acres thereof that Pitcher had bought from Syrup. That would both clear Syrup’s title and pay him off according to the oral agreement. McIntosh was agreed upon to carry that out. He accepted the assignment.
McIntosh testifies on direct examination:
“Q. — Anything further said by Mr. Syrup or Mr. McCurdy in your office at that time? A. — Well, Mr. McCurdy gave me a check for $1600.00.
“Q. — Examining check which is Exhibit ‘A,’ did you have that in your possession? A. — That was delivered to me by Mr. A. C. McCurdy.
“Q. — At that same time of the transaction with Mr. Syrup? A. — Yes.
******
“Q. — This was given to y'ou in trust ? A. — Yes.
“Q. — Under what conditions was that given to you in trust? A. — I was to clear the land deal up and secure good title to it.
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“Q. — Mr. McIntosh, you got the money on that matter, what did you do with the money? A. — I deposited it in the Farmers & Merchants Bank of Cavalier at that time in trust.
“Q. — And you still have control over it? A. — Yes.”
Re-cross Examination
“Q. — If no conveyance was had to whom will you return this money, Mr. McIntosh?”
Objection overruled.
“A. — That is what I was thinking, it would be on the determination of the Court.
« * * * ^he c0urt: Does he know to whom he will return it? A. — No I don’t. It is in trust.
“Q. — Whom is it in trust to ? A. — It is just in trust, on trust account. I am going to hold it there until I have reasonable ground on which to return it to someone entitled to it.
“Q. — To whom will you convey it if there is no determination of that? A. — I am waiting for a determination of this action.
******
*149“A. — I said I would hold this money • until the final determination of this action before disposing of it.
“Q.- — Assuming that the final determination of this action if there is to he no conveyance by the Syrup Estate, then what will you do with the money ?
“Objection overruled. A. — I presume I will return that to where it came from.
“Q. — Where did it come from ? A.— A. C. McCurdy.”
I think a fair inference from the testimony of that conference in the office of McIntosh, and all the circumstances shown in evidence, is that McCurdy placed that $1,600 with McIntosh for the benefit of Pitcher to enable him to carry out his oral agreement to purchase that particular land. By McCurdy’s instructions McIntosh wrote on the check, “For purchase price E% SE/^ 16 — 162—56, Pembina County, N. D.” McCurdy reserved no control over the money but directed what it should be used for. To finance that purchase Pitcher had asked McCurdy’s help. To work out a system for doing that was the purpose of the conference.
“Generally, intention to create a trust may be determined by construction of and inference from what the trustor has said or done, the nature of a transaction, and surrounding circumstances.” 54 Am.Jur.Trusts, Sec. 53, p. 62.
“Physical delivery of subject matter of a trust to the trustee, with sufficient indication of intention to create the trust, suffices as a complete and present disposition of property to establish the trust. An express trust exists by inference where money or property is delivered by one person to another to be held or paid over by the latter for a certain purpose or generally for the benefit of the former or a third person.” 54 Am.Jur.Trusts, Sec. 62, p. 70.
To my mind the evidence clearly warrants the holding that an express trust was formed for the purpose of carrying out the oral agreement between Syrup and Pitcher for the sale and purchase of the land. The trust was established by McCurdy for Pitcher as beneficiary. McIntosh accepted the trusteeship.
Sec. 59-0104, NDRC 1943 provides that:
“An express trust is created as to the trustor and beneficiary by any words or acts of the trustor indicating with reasonable certainty: ' ■
“1. An intention on the part of the trustor to create a trust; and
“2. The subject, purpose, and beneficiary of the trust.
It is created as .to the trustee by any words or acts of his indicating with reasonable certainty:
“1. His acceptance of the trust or his acknowledgment made upon sufficient consideration of its existence; and
“2. The subject, purpose, and beneficiary of the trust.”
McCurdy’s intention to create a trust and McIntosh’s acceptance of this fund as a trust for the benefit of Pitcher is further shown by the fact that McIntosh has retained it all .of this time. He says he will hold it “until final determination of this action.” He can do that because legal title to the. trust is in the trustee.
“The historic and universal rule, basic to the concept, origin, growth and scope of equity jurisdiction, is that a trustee is vested with a legal, as distinguishable from an equitable estate, which legal estate equity recognizes but compels to be used by the trustee in accordance with the terms of the trust and for the benefit of all beneficiaries, present and future.” 54 Am.Jur.Trusts, Sec. 96, p. 89. See also Sec. 59-0201, NDRC 1943.
Mr. McIntosh is holding that money subject to the purpose of the trust. He has *150notified the State Land Department thereof. If the decision of the district court were affirmed and specific performance of the land contract between Pitcher and Syrup is decreed, McIntosh must use that trust fund in carrying out that contract. He is" ready to do that. Because of the trust arrangement McCurdy has no right to prevent that and he has not tried to do so. Not until the contract was found un-enforcible so that it becomes impossible to carry out the object of the trust has McIntosh any right to let McCurdy have that money back. Not till then is the trust extinguished. Sec. 59-0217, NDRC 1943.
There is some suggestion in the testimony that the final deed from Syrup was to go to A. C. McCurdy. That, however, is explained by McIntosh’s testimony when he says:
“This money was paid to me by A. C. McCurdy for the benefit of Stanley Pitcher. It was A. C. McCurdy’s money. I don’t assume A. C. McCurdy was giving out the money without security — either he expected security in the way of trust deed or in the way of a mortgage.”
The fact that McCurdy wanted security from Pitcher on that land, whether by deed or mortgage, for the advancement of the $1,600 has nothing to do with the original oral agreement between Pitcher and Syrup. It does not interfere with that in any way. Whatever arrangements were made in that regard were between McCurdy and Pitcher and agreed to by Syrup who said he would return with his wife and sign the deed. The court asked McIntosh: “Was the matter clear to you, Mr. McIntosh, that Pitcher was to have the land? Ans. It was.” The arrangement assures the carrying out of Pitcher’s oral agreement with Syrup if there is partial performance sufficient to take it out of the statute of frauds.
It was claimed by the appellant that there was not sufficient part performance of the contract by Pitcher. Aside from the arrangements for payment as heretofore set out, the evidence shows that Stanley Pitcher, shortly after the meeting in McIntosh’s office took possession of the premises and commenced the work of improvement on them. It is true that the premises were leased by Pitcher’s father for pasture and had been for some years. Pitcher’s actions in entering upon the premises, however, could not be said to be under that lease. He entered upon the land for the purpose of making permanent improvements thereon for agriculture, not for pasturage. Further, the testimony shows that William Syrup came to Stanley Pitcher while he was working on the premises and had a conversation with him. That conversation Pitcher could not repeat but other witnesses testified that William Syrup told them he had been upon the premises and had seen the work Stanley was doing and expressed his satisfaction and approval thereof. The evidence shows that Stanley Pitcher borrowed a tractor and machinery from McCurdy for the purpose of clearing and breaking the land involved. There is evidence showing that the land was covered with poplar, oak and willow trees besides the ordinary scrub. Stanley would have to uproot trees, move them off and prepare the land for breaking which would also involve the removal of stones. The representative of the Soil Conservation Project testified that he made an aerial survey of the premises and found approximately 16 acres of breaking and that he saw felled trees. Stanley testified that he broke between 15 and 20 acres. That work is permanent improvement on the land. It covers almost one-fourth of the whole area involved. Pitcher’s doing that work clearly indicates he was taking possession under the agreement of purchase and performing work of considerable value to the premises. Such possession was with the consent and approval of Syrup. There is sufficient showing of work to take the oral contract out of the statute of frauds.
*151Appellant cites Grinde Corporation v. Klindworth, 77 N.D. 597, 44 N.W.2d 417, as authority for his claim of insufficient part performance. The work done on the premises in that case, which was held insufficient to take the matter out of the statute of frauds, consisted of paying for the plowing and removing the rocks from a tract of 400 acres of land and seeding 200 -of them to rye. As there were no alterations in the physical features of the land and the improvements were in harmony with the owner’s plan for farming the land that did not indicate any permanent improvement and differentiates the case from the one at bar.
Appellant finally claims that the petitioner has an adequate remedy at law. On that I believe the evidence shows that an action for damages would not be adequate. Real estate is involved and the permanent improvement thereon. While evidence •could be offered on the cost of the work •done, the value of the improvement to the land is more difficult. In the Am.Law Institute, Restatement of the Law on Contracts, Section 360, p. 642, the principle is laid down that damages are regarded :as inadequate remedy for the breach of .a promise to transfer any interest in specific land. In the comment on that it is ■there said:
“The remedy in money damages for breach of a contract for the transfer of a specific tract of land is regarded as inadequate without regard to quantity, quality, or location. A specific tract is unique and impossible of duplication by the use of any amount of money. Specific performance is available to enforce a contract the purpose of which is the transfer of any recognized interest in land to the purchaser, even though it is less than a fee simple.”
I think the judgment of the district court •should be affirmed.