¶1 (dissenting) — I am unable to agree with my associates that appellant advanced money to respondent for the purpose of interfering with any marriage that may have existed between herself and Rousseau. I gather from the credible testimony that respondent informed appellant she had remarried Rousseau, but had not lived with him as his wife; that Rousseau had made known to her he desired to marry someone else; that he claimed a community interest in some property she had acquired and would give her a quitclaim deed thereto if she would pay him three hundred dollars; that she had a number of bills to pay and would need eight hundred dollars to make a trip to see Rousseau, get the deed, and pay the bills; that, when she accomplished these things, she would then be in a position to have the marriage annulled. Respondent admitted in her testimony that she had never intended to marry appellant. All the money appellant advanced to respondent was upon the condition that she marry him. Promises made with the intention not to keep them are fraudulent, and relief may be had by the defrauded party. This is an exception to the general rule that a promise to do something in the future althoúgh not performed is not a ground upon which to base an action for relief on account of fraud. Jacquot v. Farmers’ Straw Gas Producer,Co., 140 Wash. 482, 249 Pac. 984, and cases therein cited.
¶2 We thus have a situation where a man over a period of years in. good faith and with honorable intentions advanced money to a woman with whom he was in love, relying on her continued promises to marry him and without which he would not have made such advances. It is my opinion *609 that, in such circumstances, a constructive trust arises; and when it becomes apparent to the one who advances money that he has been defrauded, he may invoke the jurisdiction of a court of equity to have a trust declared and appropriate relief given. Many of the cases on this subject are those where the legal title to property has been placed in one person under such circumstances as to make it inequitable for him to have the benefit of it, but the same principle extends into a vast and varied field. In Seventh Elect Church in Israel v. First Seattle Dexter Horton Nat’l Bank, 162 Wash. 437, 299 Pac. 359, we said:
“Where, for any reason, the legal title to property is placed in one person under such circumstances as to make it inequitable for him to enjoy the beneficial interest, a trust will be implied in favor of the persons entitled thereto. This arises by construction of equity, independently of the intention of the parties. Equity will raise a constructive trust and compel restoration, where one through actual fraud, abuse of confidence reposed and accepted, or through other questionable means, gains something for himself which, in equity and good conscience, he should not be permitted to hold.”
¶3 A statement of the rules relating to constructive trusts and which I think fits the situation we have before us, is in 54 Am. Jur. 167, Trusts, § 218 et seq. The author states that the forms and varieties of constructive trusts are practically without limit; that the classification of constructive trusts necessarily is somewhat overlapping, and that a single transaction, act, or set of circumstances may involve several fraudulent or wrongful aspects, any one of which would justify the imposition of a constructive trust; that although the mere failure to carry out a promise can not create a constructive trust, since such a breach does not in itself constitute fraud or abuse of confidence, the breach may, in connection with other circumstances, give rise to a trust; that a distinction exists with respect to the creation of a constructive trust between the breach of a promise not fraudulently intended and the breach of a promise made with no intention of performing it. These same ideas are expressed in *610 Restatement of the Law on Restitution and Constructive Trusts (Sup.) § 160. The authors refer to cases which hold:
“ ‘A constructive trust is the formula through which the conscience of equity finds expression. When property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest, equity converts him into a trustee.’
“ ‘A constructive trust is then the remedial device through which preference of self is made subordinate to loyalty to others.’ ”
¶4 In the same section, reference is made to what was said by Dean Pound in one of his articles in 33 Harv. L. Rev. 420:
“ ‘A group of cases involving constructive trusts invite consideration of what such a “trust” really is. An express trust is a substantive institution. Constructive trust, on the other hand, is purely a remedial institution. As the chancellor acted in personam, one of the most effective remedial expedients at his command was to treat a defendant as if he were a trustee and put pressure upon his person to compel him to act accordingly. Thus constructive trust could be used in a variety of situations, sometimes to provide a remedy better suited to the circumstances of the particular case, where the suit was founded on another theory, as in cases of reformation, of specific performance, of fraudulent conveyance, and of what the civilian would call exclusion of unworthy heirs, and sometimes to develop a new field of equitable interposition, as in what we have come to think the typical case of constructive trust, namely, specific restitution of a received benefit in order to prevent unjust enrichment.’ ”
¶5 We recognized a comprehensive definition of a constructive trust in Carkonen v. Alberts, 196 Wash. 575, 83 P. (2d) 899, 135 A. L. R. 209. In that case, we noted the distinction between resulting and constructive trusts and quoted the following definition of the latter:
“ ‘Constructive trusts on the other hand have none of the elements of an express trust, but arise entirely by operation of law without reference to any actual or supposed intention of creating a trust, and often directly contrary'to such intention. They are entirely in invitum, and are forced upon the conscience of the trustee for the purpose of working out right and justice or frustrating fraud.’ ”
¶6*611 Where there exists a constructive trust of the kind we have in this ease, the statute of limitations does not commence to run until it becomes known to the defrauded party that promises furnishing the foundation for the trust were not going to be kept. Ackerson v. Elliott, 97 Wash. 31, 165 Pac. 899. The action was timely brought by appellant.
¶7 The judgment of the court should be reversed, and the cause remanded with directions to enter a decree declaring that respondent became a constructive trustee of all of the money advanced to her by appellant, directing that such money be returned to him, and, as additional relief, that he be awarded a money judgment therefor.