(after stating the facts). Appellant argues that the facts alleged in his complaint are sufficient to create a trust ex maleficio; but we do- not agree with *45him. In the case of Bragg v. Hartney 92 Ark. 55, the following language was quoted with approval from Pomeroy’s Equity Jurisprudence, page 2038.:,!
(1) “In general, whenever the legial title to prop! erty, real or personal, has been obtained through actual fraud, misrepresentations, .concealments,' or through uni due influence, duress, taking advantage of one ’>s weakness or necessities, or through any .other similar means or un* der any other similar circumstances, which render it uni conscientious for the holder of the legal title to retain and-enjoy the beneficial interest, equity impresses' a com structive trust on the property thus acquired in favor' of the one who is truly and equitably entitled to the same; although he may never perhaps have had any legal estate therein; and a court of equity has .jurisdiction to reach the property, either in the hands of. the original wrongi doer or in the hands of any subsequent holder, until 'a purchaser of it in good faith and without notice acquires a higher right, and takes the property relieved from the trust. The forms and varieties of these trusts, which are termed ex maleficio, or ex delicto,. are practically without limit. The principle is applied wherever it is necessary for the obtaining of complete justice, although the law may also give the remedy of damages against the wrong-doer. ’ ’
There is no allegation here of any agreement on the part of appellee to take the title to the land in himself for the benefit of appellant, or to reconvey to him when it had been so taken; but the allegation of the complaiilt is that appellee contracted to acquire the title for appellant, and in his name.
(2) The ground of demurrer that the contract was not to be performed within .a year, 'and that therefore the contract was within the .statute of frauds, was not well taken, because the contract was one which might have been enforced within the year and such contracts are not within the statute of frauds. Friedman v. Schleuter, 105 Ark. 580.
*46(3) We think the facts stated in the complaint, which we have recited, are sufficient to entitle appellant to a specific performance of his agreement with appellee, and that he is entitled to have this relief granted him rather than to have appellee declared a trustee ex maleficio. The rule in regard to specific performance of parol contracts is that the mere payment of money is not such part performance as will take the case out of the statute of frauds,, because the remedy at law is adequate for its recovery, and such payments do not work an irrevocable change of position. Fred v. Asbury, 105 Ark. 499. But, under the allegations of the complaint here, there was not only a payment of the consideration, but there was an entry upon the land and the performance of the contract by cutting, selling and delivering to appellee the timber standing thereon. Appellant has performed his contract fully, except the payment of a small balance of the purchase money which he tenders with his complaint; and he also tendered a note for the unpaid purchase money and a mortgage on the land, and, under these circumstances, his right to the relief prayed for can not be defeated because his original contract was within the terms of the statute of frauds. In the case of Robinson v. Wynne, 97 Ark. 366, Gr. owned timber and had contracted to sell it to B. for an agreed price. C., acting upon B.’s authority and direction, entered upon the land and cut and removed the timber and the statute of frauds was there pleaded by B. against Gr., who sued to charge him with the contract price of the timber, but it was held that the statute was satisfied by the delivery of the timber to 0., and the agreement of B. to pay the price. We think there has been such performance of the contract here as to take the case out of the statute of frauds. Salyers v. Legate, 93 Ark. 606; Lee v. Foushee, 91 Ark. 468.
■ It will be observed that the facts in this ease are very similar to those in the case of Tatum v. Bolding, 96 Ark. 98, but a specific performance of the contract there sued on was refused because of the failure of proof. *47No such difficulty arises here, as this case was disposed of on demurrer.
In the case of Phillips v. Jones, 103 Ark. 556, it was said: “A court of equity can not make a contract for parties and then decree its specific performance, in order to carry out its notion of what the abstract justice and right of the case as disclosed by the proof demands. The court will only decree specific performance when the contract itself is clearly established by a preponderance of the evidence.” But here the court is not making a contract for these parties. It is merely ordering the enforcement of one made by the parties themselves. The agreement was that appellant should have the title to this land when he had sold and delivered appellee the timber thereon and had paid any balance of the purchase money which might then remain unpaid, or had executed a valid mortgage therefor, and appellant entered upon the land and commenced performance of his contract and has now substantially complied with it, and his right to a specific performance of this contract entitles him to a deed to the land. Appellee’s undertaking was to procure this deed for appellant and that undertaking will be performed when appellee has delivered to appellant its deed conveying the land.
For error in sustaining the demurrer, the decree will be reversed and the cause remanded, with directions to overrule the demurrer.
Kirby, J., dissents.