163 Ky. 524 | Ky. Ct. App. | 1915
Opinion of the Court by
Affirming.
David Foushee died intestate in the year 1912, leaving a widow, Cora Pusey Foushee, and his father and mother, William F. Foushee and Mary E. Foushee, as his only heirs. At the time of his death he had title to a farm of about 100 acres of land situated in the county of Meade, and which he had purchased from his father and mother for the sum of $2,900.
This action was brought by William F. and Mary E. Foushee against Cora P. Foushee to have dower allotted to the latter and the land partitioned between them. Cora P. Foushee filed an answer and counterclaim in which she alleged that of the entire purchase money of $2,900 she herself paid the sum of $1,167.25, with the express understanding that the plaintiffs, William F. and Mary E. Foushee, who were the owners of the land, and from whom the purchase was made, would execute a deed jointly to her and her husband, David Foushee; that in violation of this agreement, the plaintiffs, without her knowledge and consent, conveyed the land to her husband, David Foushee. By reason of these facts, she asserted an equitable lien on the land which she averred was superior to any claim plaintiffs had therein. At the same time she filed a claim against the estate of David Foushee which was verified by her and R. L. Starks. On final hearing the chancellor refused defendant the lien asked for, and directed that dower he allotted to her, and the remainder of the land! he allotted to plaintiffs. From that judgment defendant appeals.
Plaintiff, William F. Foushee, testified, in substance, as follows: He and his wife owned the land in controversy. The trade was not made by Cora Foushee, nor did she pay him any part of the purchase price. The first payment was made before Christmas. He received a certificate of deposit for $1,522.50. Prior to that time he had received $350. He owed David $41.20, and the latter paid him in money the balance, amounting to $986.30. The balance was paid on December 24, 1911.
The general rule prevailing in most jurisdictions that where property is purchased by one person, and the consideration paid by another, a trust is presumed to result in favor of the person by or for whom the payment is made, has been abrogated by statute, and does not obtain in this State. The statute (Sec. 2353, Kentucky Statutes) is as follows:
“When a deed shall be made to one person, and the consideration shall be paid by another, no use or trust shall result in favor of the latter, but this shall not extend to any case in which the grantee shall have taken a deed in his own name without the consent of the person paying the consideration, or where the grantee, in violation of some trust, shall have purchased the lands deeded with the effects of another person.”
Under the statute a trust results in but two cases: (1) Where the grantee takes a deed without the consent of the person paying the consideration; (2) where the grantee, in violation of some trust, purchases the deeded lands with the effects of another person. In addition to these cases mentioned by the statute, it is also well settled that where one intrusts funds to another to be invested for her benefit, and the latter, without the consent of the former, and in fraud of the former’s rights, purchases property and has the title thereto put in the name of a third person, a constructive trust will result in favor of the person who has thus been defrauded. Graham v. King, 96 Ky., 339. The facts of this case do not bring it within the latter rule. The case turns on whether or not defendant’s proof brings her within either of the exceptions mentioned in the statute.
It remains to consider whether the husband took the deed to himself in violation of some trust. It may be conceded that if he had entered into an agreement with defendant, whereby his and her money was to be invested in the property purchased, and the deed thereto taken in their joint names, and he, in violation of this agreement, took the deed to himself, the trust would, result in defendant’s favor to the extent of the money contributed by her. The only .witness for defendant on this question is the defendant herself. Her statement is as follows:
“The deed was to be made to David and I equally and jointly, and there was to be a provision in there if he was to die first I was to have everything as long as I remained his widow. If I was to die first he was to have everything.”
It appears appellees have had incorporated in the transcript the record of the proceedings below after defendant’s counter-claim was dismissed. Appellees have not taken a cross-appeal. That part of the record referred to has no bearing whatever on the questions involved on the appeal. We, therefore, conclude that Cora Foushee’s motion to have that part of the record stricken from the transcript at appellee’s cost should prevail, and it is so ordered.
Judgment affirmed.