166 Ky. 353 | Ky. Ct. App. | 1915
Opinion of the Court by
Affirming.
. Overton Adams, an unmarried man, resided in Lincoln County, Kentucky, on a farm of one hundred and two and one-half acres, of which he was the owner of an undivided one-third interest. A sister resided with him, and previous to his death, which occurred on the 23rd day of December, 1905, his sister died. The appellee, J. T. Wells, for several years previous to the death of Adams, also resided with him, but exactly upon what terms is not shown. In 1904, Ann Cover, who was the owner of an undivided one-third interest in the farm upon which Adams lived, instituted a suit against Adams and Charles Singleton, the other joint owner, for a sale of the land and a division of its proceeds. The court adjudged that Adams, Singleton, and Cover were each an owner of an undivided one-third of the land and adjudged that it be sold. The sale was made on the 8th day of August, 1904, when the appellee, J. T. Wells, became the purchaser, at the price of $300.00, and executed bond for the purchase price with J. M. Singleton as his surety. The sale was duly reported, when Ann Cover filed exceptions to the, sale, and thereafter additional exceptions, which the court finally heard and overruled on the 8th day of March, 1905. On the same day the appellee gave his cheek to the master commissioner, on a banking institution at Crab Orchard, for the amount of $310.00, which was the purchase price of the land and its interest, and on the same day the court directed that after the payment of the costs, that one-third of the purchase money should be paid to each of the joint owners of the land. On the following day, the 9th of March, Overton Adams filed an affidavit, signed and sworn to by himself, in which he recited the fact that the land had been sold and the sale confirmed and the purchase price had been paid to the commissioner of the court, and that the court had directed one-third of the proceeds of the sale of the land to be paid to Charles Singleton, and that he had previous
Adams died intestate, and thereafter, on the 11th day of May, 1911, his administrator and thirty-two of his-collateral heirs instituted this suit against the appellee, Wells. The allegations of the.pleadings in this case-are fully set out in the opinion upon a former appeal of this case, which may be found in 153 Ky., 768. Suffice it to say, however, that the plaintiffs below, who are the. appellants here, alleged in substance, that Overton Adams, their ancestor, was the owner of an undivided two-thirds interest, and in addition, one sixth of the land which was sold in the action of Gover v. Adams, &c., and that he desired to become the purchaser of it at the decretal sale, but upon the day upon which the sale was made, that he was sick and unable to attend the sale, but for the purpose of purchasing the land at the sale, he made the appellee, Wells, his agent to attend the sale and buy the land for him, and, also, procured a surety in the bond which would have to be executed for the sale price, and that Wells fraudulently purchased the land for himself, and caused himself to be reported as the purchaser, and procured a confirmation of the sale and execution to/ him of a deed, all of which facts were unknown to Adams, who was relying upon Wells to take care of his interest
The appellee, by answer and amended answers, controverted all the allegations of the petition, and in addition plead that his purchase of the land and his procuring a deed, and the payment of the purchase money by him were facts well known to the decedent at all times, and that decedent approved of same and filed no exceptions to the report of sale, and, also, set out the fact of the decedent filing the affidavit and motion on the 9th day of March, after the confirmation of the sale and the payment of the purchase money, and the filing of his answer and cross-petition on the 30th day of June, thereafter, and relied upon same as an estoppel to the plaintiffs’ cause of action set up in their petition, and further plead, that since the death of the decedent that the appellants had, by an order of court, procured the payment to their attorney, as a portion of his fee in the case, the sum of $100.00, which he alleged was a part of the proceeds of the sale of the land which belonged to the decedent, and relied upon such fact as a further estoppel to the appellants’ cause of action.
The affirmative allegations in the answer and amended answers were duly controverted by replies, and the cause coming on to be heard upon the pleadings and proof, the court adjudged that the petition of the appellants be dismissed, to which they excepted and prayed an appeal to this court.
Proof was offered by the appellants tending to prove that the land was worth from $700.00 to $1,000.00; that Adams was a man of good sense, able to read and write; and was near seventy years of age; that Wells had lived
For the appellee, it was proven that he resided in the same house with Adams at the time- of the sale and continued to live in the same house until April or May, 1905, when he married, and thereafter lived in another house upon the same land; that shortly after the sale Wells went to work upon the land, clearing it up of its brush, erecting new fencing, cutting dbwn trees, which he caused to be sawed into lumber and which he brought to the land and used in improvements upon it. By another witness it was proven, that in January, 1905, she went to Adams for the purpose of renting a house which was on the land; that Adams said to her, that he had
The above was, in substance, all of the evidence offered in the case on either side, in addition to the affidavit and motion made by Adams on the 9th day of March, 1905, and his cross-petition in the case on the 30th day of June, 1905, and the facts recited in the affidavit and cross-petition. It will be observed that there is no evidence to support the allegation, that Adams sent Wells to buy the land for himself, neither is there any evidence which shows that Adams ever desired to buy the land for himself, nor is there any evidence tending to show that he ever expressed any dissatisfaction in regard to the sale of the land and the purchase of it by Wells, except the statement of the witness who testified' that he went with Adams to consult a lawyer about bringing suit to recover the land, but it does not appear that his claim at that time was based upon anything growing out of the purchase of the land by Wells and the witness who testified about the agreement between Adams and Wells that Adams should, live upon a portion of the land during his lifetime,, and then the portion was to revert to Wells. The latter statement, however, 'falls short of showing that there- was any dissatisfaction on the part of Adams about the purchase.of the land by Wells. The statement made by Adams to the neighbor,- who went upon Wells’'bond, does not show whether he intended
-A parol constructive trust arises when a party obtains the legal title to property in violation, express or implied, of some duty owed to the one, who is equitably entitled, and when the property thus obtained is held in hostility to the beneficial rights of the one equitably entitled to it. Vol. 2, Pomeroy, Section 1044.
This court has uniformly upheld the doctrine of parol constructive trusts, and has maintained them where the facts, which go to establish them, are proven by certain and undoubted testimony and such as to leave in the mind of the court no rational doubt as to the truth of the facts necessary to establish the trust. Roche, et al. v. George’s Exor., 93 Ky., 609; Northcutt v. Hogan, 4 R., 364; Taylor v. Fox’s Exor., 162 Ky., 804; Warden v. O’Brien, 142 Ky., 633.
It has, furthermore, been held, that the evidence to create a parol trust must be strong and convincing, where
The judgment is affirmed.