The motion will have to be denied. The suit did not abate by the death of the plaintiff David Weaver: Or. L., § 38; nor by the transfer of the property involved pending the trial of this suit: Meyers v. Hot Lake Sanatorium Co., 82 Or. 587, 589 et seq. (161 Pac. 697).

Said Anna Gibbs had a right to have the suit prosecuted to final termination in the name of the plaintiff. Having taken the property while the suit was pending she would be bound by the decree. Again, only the Gresham property was conveyed to Anna Gibbs. Block 15 in said Des Moines Addition to Portland remained the property either of the estate of David Weaver, deceased, or of the defendant A. G. Guynup. The motion to dismiss the appeal is denied.

We have carefully considered the evidence and find the equities in favor of the plaintiff. The learned judge who presided at the trial seems to have considered the principle involved as one of undue influence only. Defendant A. G. Guynup was two years older than plaintiff David Weaver. It was the court’s *512 impression, gathered from the testimony of plaintiff while a witness in his own behalf, that plaintiff was of sound mind and able to take care of his own affairs. We hold that the ground for equitable interference in this suit is not based upon undue influence but on deceit and fraud practiced by defendant A. G. Guynup on plaintiff at the time all of the different deeds were executed. In the first place, said Guynup induced plaintiff to execute a deed for the purpose of deceiving plaintiff’s sister. Plaintiff and said Guynup were then warm personal friends and plaintiff apparently enjoyed the company of the defendant A. G. Guynup. The sister was opposed to Guynup’s coming into the home but when she was shown the deed she could not well object to said Guynup occupying his own property. Guynup’s purpose then, as expressed by him, was to deceive the sister. Plaintiff Weaver was induced to execute the deed for the sole purpose of getting Guynup a room in his home over the objection of his sister. The deed was not to be delivered to the grantee, iand was in fact never delivered. Later, for the puripose of continuing the deception of said David ; Weaver, defendant Guynup induced him to correct i the mistake in the description of the Gresham property, under the representation that it was necessary for said Guynup to have the title in order to effect a sale of the property. After said David Weaver had decided to enter the Soldiers’ Home he wanted to sell the Gresham property. Guynup was very active in trying to find a purchaser. He represented to said Weaver that he might be arrested and imprisoned for selling property which did not belong to him. These facts were denied by defendant A. G. Guynup, but a careful consideration of the testimony convinces us that the statements above made are true. These facts *513 elearly warrant the inference that at the time A. G. Guynup was working upon said David Weaver to make the deeds he intended to claim the property and procure the same without consideration. No consideration was paid by said Guynup to Weaver at any time for the several deeds that were executed by David Weaver in his favor.

The law is well settled that one who procures the execution of a deed by misrepresentation with intent to deceive and defraud a person will be held a trustee ex maleficio.

“The fact that one person has obtained the property of another, under a form of purchase, without having paid any consideration therefor, and with a design of acquiring it for nothing, is fraud in itself. Misrepresentation and deception in such a case will be implied, as they are necessary concomitants of the act. It is unlike a case to set aside a deed for undue influence, where there is no positive element of fraud apparent from the intrinsic nature and subject of the transaction.” Archer v. Lapp, 12 Or. 196, 202 (6 Pac. 672, 677); Templeton v. Hollinshead, 119 Or. 620, 624 (250 Pac. 747); Parrish v. Parrish, 33 Or. 486 (54 Pac. 352).

"Constructive trusts are held not within the statute because they rest in the end on the doctrine of estoppel, and the operation of an estoppel is never affected by the statute of frauds.” 26 R. C. L. 1233, § 79; Bogert on Trusts, § 36, cited in Templeton v. Hollinshead, above; 9 C. J. 1183, § 47.

The decree of the Circuit Court is reversed and one will be entered here annulling and canceling the conveyances from said David Weaver to defendants, requiring the defendants to transfer by special warranty deed, covenanting against encumbrances placed by defendants, and against claims under them or either of *514 them, the Gresham property to said Anna Gibbs, the successor in interest of the said David Weaver, transferring said Block 15 to the plaintiff, as administrator of the estate of said David Weaver, deceased, within thirty days from the date this decree is entered in the Circuit Court. Unless said conveyances are so executed and delivered, said decree shall stand in lieu of such deeds. Plaintiff will recover his costs and disbursements, both here and in the Circuit Court.

Reversed.

Rehearing denied June 5, 1928.

On Petition eor Rehearing.

(267 Pac. 812.)

Defendants’ petition for rehearing complains particularly because the more valuable tract of property was awarded to Anna Gibbs, who is not nominally a party to this suit. It does appear, however, from the record made here by defendants themselves, which is conceded by plaintiff, that after this suit was started Anna Gibbs became the purchaser of the tract of land awarded to her. That fact is in no way questioned in the petition for rehearing. The original opinion cites authority for the rule that as such purchaser pending the litigation she had the right to have the case conducted to termination for her benefit without substitution. There is no good reason advanced why the decree cannot directly award to her the property which she admittedly owns under the de *515 cisión instead of circuitously remanding the case with directions to have her substituted and then a decree rendered. The issues were not changed by her purchase of the property. She stepped into the shoes of her grantor. Defendants were in nowise injured by the purchase nor are they affected to any extent by the decree awarding the property to the real party in interest — the legal owner thereof. Defendants have no cause for complaint.

We are not concerned about the other action begun upon the advice of an attorney who is a stranger to this record. It appears from the record that the plaintiff Metzger, who was substituted for the original plaintiff David Weaver, was deceived and misled when he verified the complaint. That action can be disposed of in the light of the decision in the instant case. That case is not here for this court to act upon.

There is no merit in the other contentions advanced in the petition for rehearing.

The original opinion is adhered to.

Rehearing Denied.