90 Ky. 142 | Ky. Ct. App. | 1890
delivered the opinion oe the court.
In 1877 appellant made an assignment for benefit of creditors to Young, wlio, in February, 1878, con
It is, in our opinion, sufficiently proved there was, before conveyance of the lot to Muir, a verbal agreement made between him and appellant, whereby he was to reconvey whenever the two debts were paid off by rents of the property or otherwise. Several witnesses, including Young, testify, substantially or directly, it was made; and besides, the property, instead of being exposed to public sale by the assignees, was, with knowledge and consent of appellant, sold at less than what the witnesses testify was at the time its actual value. It is, however, proper to say Muir,
The agreement thus alleged and proved would, if in writing, unquestionably have the effect to change operation of the deed in question, though absolute in terms, into a mortgage; and if now treated otherwise, it is because it comes within section 1, chapter 22, General Statutes, which provides that no action shall be brought to charge any person upon any contract for sale of real estate unless the contract or agreement, or some memorandum or note thereof, be in writing, and signed by the party to be charged therewith. There is a marked distinction between a legal title to real estate acquired under circumstances that make a trust upon the holder in favor of a person other than the immediate grantor, and that conveyed by an absolute deed from the vendor to purchaser. '
An action for equitable relief may be brought and maintained in the first mentioned case without either charging a person ‘‘upon a contract for sale of real estate,” or contradicting or varying the terms of a deed under which the legal title is held, though the result may be to change a conveyance, absolute on its face, into a mortgage or deed of trust, or divest the holder of title altogether. Consequently an agreement upon which claim for relief is in such case founded may, though not in writing, exist, and be enforced without violation of the statute referred to, and be established by parol, notwithstanding the general rule of evidence mentioned.
The doctrine then recognized and applied was in accordance with the previous cases of Martin v. Martin, 16 B. M., 8, and others cited, where equitable relief was upon similar grounds sought and granted. On the other hand, in the case of Thomas v. McCormack, 9 Dana, 108, referred to with approval in Williams v. Williams, the only question was, whether a conveyance by McCormack to Thomas of a lot of land, absolute on its face, should, on the facts there presented, be deemed, nevertheless, a mortgage, and this language was used: “There being no written memorial of any condition or defeasance, neither the public interest nor the established principles of equitable jurisprudence will allow a court of either equity or law to admit parol testimony, in opposition to the legal import of the deed and the positive denial in the answer, unless a foundation for such evidence had been first laid by an allegation and some proof of fraud or mistake in the execution of the conveyance, or of some vice in the consideration.”
The case of Harper v. Harper, 5 Bush, 176, was
Apjjellant in this case, though not holding at the-time the legal title, which was in Young, assignee, did have the beneficial interest in the lot, and, becoming a party to the deed to Muir, occupies substantially the attitude of vendor, and consequently can not be now permitted to set up a parol agreement made at the same time, that contradicts and essentially varies the terms of the deed that, without condition or reservation, passed the absolute title. And as the agreement is denied by appellees, and no fraud or mistake in the execution of the deed is alleged or proved, the relief sought must be denied.
Judgment affirmed.