something, or done something.

There was no trust relation. They simply made an oral contract, and Mitchell violated his oral agreement, broke his word. To constitute a trust or confidential relation, there must have been some such relation, arising outside of the contract itself, and existing between the parties. The contract does not create the relation. (Taylor v. Kelly, 37 Pac. 216; Doyle v. Murphy, 22 111. 508; Wier v. Gard, 88 111. 493; Hodgson v. Fowler, 43 Pac. 462; Duffy v. Masterson, 44 N. Y. 557; 1 Perry on Trusts, sec. 134; Kroft v. Smith, 117 Pac. 183; Wheeler v. Reynolds, 66 N. Y. 234; 3 Pom. Eq. Juris, sec. 1056.)

The verbal promise does not create a trust. The party claiming the trust expended nothing, therefore he has no equitable estate. (Cushing v. Houston, 102 Pac. 29; Clallam v. Jackson, 101 Pac. 832; Howland v. Blake, 97 U. S. 624.) These cases are not based on the statute of frauds, but upon the proposition that a mere verbal agreement does not and cannot create a trust. A trust presupposes some title, legal or equitable, of which the party claiming the trust is deprived.

A person cannot locate in one claim two or more noncontiguous tracts of land. (16 L. D. 186; 13 L. D. 146; 1 Lindley on Mines, 1st ed. sec. 338.)

Finding No. 4 is not sustained by the evidence, for the court therein makes the agreement to do the labor on the Silver King Fraction and the relocation of the Whirlwind No. 4 both one and the same contract.

Finding No. 7 is not supported by the evidence, unless one wholly misconstrues the certificates of location of the Whirlwind No. 4 and of the Silver King Fraction. (Morrison’s Mining Rights, 14th ed. p. 65; Brook v. Justice M. Co., 58 Fed. 106; Gibson v. Hjul, 32 Nev. 360.)

Finding No. 8 has no foundation in law or in fact. Shannon and Carion knew nothing of any agreement to relocate the Whirlwind between Mitchell and Clark, and there is no testimony to that effect. On the contrary, the evidence is without contradiction that long prior to the Mitchell-Clark agreement, Shannon, Carion and Mitchell had agreed as to such relocation. There is no law that can hold Shannon and Carion as trustees for Clark. A third person cannot be bound by the act of an agent, when he does not know that there is an agency of any kind. (Am. & Eng. Ency. Law, 1136; Note by Freeman to 88 Am. St. Rep. 782-786.)

To give Clark any right in the premises, we must set aside Mitchell’s agreement with Shannon and Carion, and substitute in place of it a subsequent agreement with Clark, of which neither Shannon or Carion had knowledge.

If it be claimed Clark waived his right to locate, we say he gave Mitchell nothing, because Mitchell had the absolute right to locate. To be a consideration, Clark must have had a sole or superior right to Mitchell.

On Petition for Rehearing: The court overlooks the undisputed fact in this case that Mitchell had a prior agreement concerning the relocation of the Whirlwind No. 4 with Shannon and Carion. It is not law that the act of Mitchell would bind any interest of Shannon and Carion.

The district court found as a fact that plaintiff was fully and fairly informed by others. Under these circumstances, considering the uncertain value of the property, plaintiff should have promptly asserted his rights, and not have waited until the defendant had developed the property and demonstrated its value. (Mackenzie v. Coslett, 28 Nev. 65; Gamble v.'Silver Peak, 34 Nev. 428.)

The deception and fraud of Mitchell operated to raise a constructive trust in favor of Clark. (Bowler v. Curler, 21 Nev. 158; Levy v. Ryland, 32 Nev. 460; Thompson v. Thompson, 54 S. W. 145.)

This agreement was not within the statute of frauds and that statute cannot be invoked to protect a fraud or aid in a fraud.

There was mutuality of contract between Clark and Mitchell, and Mitchell could have obtained relief had he honestly and faithfully performed his contract and Clark had then tried to evade carrying out his part. (Musick Oil Co. v. Chandler, 109 Pac. 163.)

The pointing out of the claim and the forbearing and waiving his right to locate the claim for himself is a good and sufficient consideration. (Ballard v. Burton, 24 Atl. 769; Bank v. Nelson, 111 Pac. 913; 9 Cyc. 311; Trice v. Comstock, 121 Fed. 620; Brooks v. Bertners, 96 N. W. 97; Sanguinnetti v. Rossen, 107 Pac. 560; Harris v. Harris, 110 Pac. 1085; Eisenberg v. Goldsmith, 113 Pac. 1127; Pomeroy, Eq. Juris. 3d ed. secs. 899, 918, 959,1044,1050.)

The doctrine we are contending for has been applied in a number of cases relating to mining property. (Jurst v. Patchin, 35 Fed. 816; Lockhart v. Rollins, 21 Pac. 413; Utah M. Co. v. Dickert, 21 Pac. 1002; Sun Dance M. Co. v. Frost, 64 Pac. 435; O’ Neill' v. Otero, 113 Pac. 614; Murley v. Ennis, 2 Colo. 300; Moritz v. Laville,ll Cal. 10; Argentine M. Co. v. Benedict, 55 Pac. 559.)

The agreement with reference to the work on the Silver King Fraction and the agreement to relocate the Whirlwind No. 4 were but two parts of what is .only a single agreement.

Whatever title or interest Carion and Shannon may have in the Helen came from Mitchell, and that title and interest is impressed with the constructive trust in favor of Clark.