concurring. I concur in the conclusion that the evidence in this case was insufficient to establish a constructive trust in appellants’ favor. But I wish to make it clear that our statute prohibiting express oral trusts in lands (Ark. Stats., § 38-106) does not in any wise inhibit the establishment of constructive trusts. The next following section in the statute of frauds (§ 38-107) provides: “Where any conveyance shall be made of any lands or tenements, by which a.trust or confidence may arise or result by implication of law, such trust or confidence shall not be affected by anything contained in this act.”
The great weight of American authority recognizes the validity of constructive trusts under the' circumstances set out in the Restatement of Trusts, § 45,' as quoted in the majority opinion. Unless constructive trusts are enforced in those circumstances the statute of frauds will be made an instrument for achieving fraud, by vesting in nominal grantees the title to lands for which they have paid nothing and to Which in equity and good conscience they are not entitled. Under § 38-107 it is clear that this was never the intent of the statute of frauds.
Whether the constructive trust in such circumstances should run in favor of the ones for whom the oral trust was declared, as the Restatement suggests, thus effectuating it as though it were an express trust, or should run in favor of the grantor or his successors, on the theory that the parties should be restored as nearly as possible to the position they were in prior to the making of the deed, is another matter. Certainly, the latter disposition of the property would be more nearly in keeping with the law of constructive trusts generally. See 3 Bogert, The Law of Trusts, p. 215; 1 Scott, The Law of Trusts, p. 269. This form of relief, however, was not sought in the present case.