96 Ky. 445 | Ky. Ct. App. | 1895
delivered the opinion op the court.
The court having sustained a demurrer to appellant’ s petition, and appellant failing to plead further, his petition was dismissed.
Substantially, these are the facts alleged in the petition. Henry Farler died the owner of certain
The six tracts of land in controversy in this suit-were sold under such order, when Ewell Y. Unthank became the purchaser. Afterward, in 186 — , he, in consideration of seven hundred and fifty dollars, sold the land he had thus purchased to the appellant, Samuel Howard, Sr., who paid him on the price the sum of five hundred and thirteen dollars and sixty-seven cents, leaving a balance due of two hundred and thirty-six dollars and thirty-three cents. At the May term, 1869, of the court, an order was entered reciting Unthank’s purchase, his transfer to the appellant, and directing the deed for the land be made to the appellant.
Appellant took possession of the land under his purchase. No memorial of the contract of sale from Unthank to appellant was ever given, except the-order of court as stated.
Sometime in 187 — -, appellant had not yet paid Unthank the balance due him for purchase money. He was financially embarrassed, he owing the balance of purchase money, his brother, Milton E. Howard (appellee), a debt as assignee of C. B. Brittain and other debts amounting to about two hundred dollars.
In order to enable him to pay these debts he entered into a parol contract with the appellee, Milton E,
Without any authority from, and without the knowledge or consent of the appellant, the appellee, Milton E. Howard, procured from the court in the Farler case, a deed for the six tracts of land. The deed was not recorded until June, 1883. Appellant had no knowledge of the procurement of this deed, nor that it had been recorded, until 1890, Appellant had been in the actual adverse possession of the land from about the time of his purchase until the bringing of this suit, claiming it as his own. The obtention 'of the deed was fraudulent. Appellant says that he has paid appellee all that was paid by him under the contract. He is willing that for whatever amount he may owe the appellee, a lien shall be adjudged against the land. In 1890 the appellee, Milton E. Howard, while appellant was in the actual adverse possession of the land, claiming it as his own, without consideration, executed and delivered a deed to the other appellees, by which he attempted to convey the entire boundary
It is claimed among other reasons that the demurrer ■should be sustained, because it is an action brought to charge one on a parol contract for the sale of real estate, and that, under section 1, chapter 22, General Statutes, the action can not be maintained.
YYithout further discussion of the question, it is « sufficient to say that the purchase of Unthank and the transfer of his purchase to appellant, together with the order directing the deed to be made to him, takes the case out of the statute of frauds and perjuries. Although appellant never had made to him a deed •conveying him the land, nevertheless, he holds the ■equitable title thereto.
It is claimed he can not maintain the action because the appellant’s contract with appellee was to defraud his, appellant’s, creditors. The contrary is the fact. The contract was entered into for the express purpose of releasing himself from his financial embarrassment, and to enable him to pay all his debts. He agreed to convey his land to his brother to make sure the payment of his debts.
It is insisted that the court properly sustained the ■demurrer to the petition, because, under section 6, article 3, chapter 71, General Statutes, any right the ■appellant may have had to be relieved of the fraud •committed by Milton E. Howard in obtaining the deed to the land from the court, is barred.
The court is of the opinion that the statute of limitations does not bar appellant’s right to relief against
It is elementary that an equitable title, with the party holding the equity in possession at the time the legal title is acquired, has preference over the-legal title. If the appellee, Milton E. Howard, had been substituted as vendor by the chancellor, all he can do is to enforce his lien for the purchase money, and the statute of limitations has no application to
If the elementary principle announced in this opinion did not control, and the general provision contained in section 6, article 3, chapter 71, General Statutes, with reference to the statute of limitations, was applicable, still the demurrer should not have been sustained, because the appellant was a vendee in possession of the land, and seeks a conveyance of the property in this action.
Section 20, article 4, chapter 71, General Statutes, is as follows :
“The provisions of this chapter shall not apply in case of a continuing and subsisting trust, nor to an action by a vendee of real property in. possession thereof, to obtain a conveyance.”
This exception in the statute would save appellant’s right to sue, and the action would not be barred.
The court should have overruled the demurrer to the petition.
The cause is reversed, and remanded with directions for further proceedings consistent with this opinion.