182 Ky. 446 | Ky. Ct. App. | 1918
Opinion op the Court by
Affirming.
Appellant brought this action in- equity to require the defendants to convey to him a tract of 1Ó0 acres of land which defendant, A. N. Hoskins, purchased at a judicial sale, alleging that plaintiff was the owner of the land and that it was.sold to satisfy a judgment lien debt which he owed the estate of Felix Hoskins; that the defendant purchased it under a parol trust agreement to hold the title for plaintiff and to accept in repayment of what he paid for the land and such other expenses as he might incur in the transaction, white oak trees, at $1.00 per tree, from the land sold, and other lands in the vicinity, owned by plaintiff and his father-in-law.
Defendant denied the agreement, and after the proof had been partially taken, plaintiff amended his petition to conform to the proof, alleging that before the sale he had sold and conveyed the land to Osborne and Sparks for $1,000.00 and their agreement to, assume and pay the Felix Hoskins mortgage' on the land, and that they, at the time of the sale, held the legal title to the land, but that he retained a lien upon same for the purchase price of $1,000.00, which was inferior to the Felix Hoskins mortgage lien.
It was further developed, without contradiction in the proof, that in the suit by the administrators of Felix Hoskins to foreclose the mortgage, the plaintiff, by answer and cross-petition against Osborne and Sparks, secured a judgment against them, as the owners of the land, for the unpaid part of the purchase price due him, with a second lien upon the land, and that the land was sold at the sale at winch defendant became the purchaser, as the land of Osborne and Sparks, to satisfy both liens.
It is therefore clear that as plaintiff was not the owner of the land at the time of the decretal sale, his contract with the defendant, if proven, does not come within the doctrine of Griffin and Wife v. Coffey, &c., 9 B. Mon. 452;
Summarizing plaintiff’s evidence and disregarding that for the defendant, we find that no confidential relationship of any kind existed between plaintiff and defendant; defendant practiced no fraud upon plaintiff in acquiring title in his own name; plaintiff held a second lien against the land of third parties, about to be sold, and defendant, present at the sale to bid in the land for
The statute of frauds was enacted to prevent frauds, and courts of equity will not therefore permit it to be used to perpetrate a fraud upon pre-existing fights or confidential relationships; hence parol agreements of implied trust, whether resultant or constructive, are held not to be within the statute, but an express trust between strangers at law, not in writing, is within°the statute and unenforcible because no trust exists except such as is imposed by the terms of the agreement itself, and against the violation of which both equity and the statute demand the parties shall protect themselves.
Hence, even if we assume that the contract was proven, it was not enforcible, and the chancellor did not err in dismissing the petition.
Wherefore, the judgment is affirmed.