27 Ky.L.Rptr. 536, 120 Ky. 145, 117 Am.St.Rep. 575
Court of Appeals of Kentucky.
March 16, 1905.
ACTION: Affirmed.

Appeal from Circuit Court, Knox County.
"To be officially reported."
Action by John H. Catron against William Parker.
From a judgment for plaintiff, defendant appeals.

The father of appellee, John H. Catron, conveyed to him and his brother, Isaac Catron, a tract of land in Knox county. Thereafter a creditor of the father levied an execution upon the land for a debt due him from the father, and the land was sold under the execution. John and Isaac Catron, the two sons, got appellant, William Parker, to bid in the land for them at the execution sale. The amount of the debt was between $500 and $600. John H. Catron afterwards redeemed the land from Parker, and subsequently Isaac Catron died, with the title in this condition. Suit was filed to settle the estate of Isaac Catron, and his half was ordered sold in that suit for the payment of his debts. John Catron procured Parker again to buy in the land for him, which Parker did in his own name, at the price of $25. The equity of redemption was then sold, and Parker bought this for $5. The land was not redeemed, and at the end of the year Parker, over Catron's objection, caused a deed to be made to himself for the land; that is, Isaac Catron's half of the tract. John Catron then filed this suit in equity against Parker, setting up the facts, and alleging that Parker held the title in trust for him, and praying that he be required to convey the land to him; he having been all the time in the actual possession of it. The court decreed him the relief sought, and the defendant appeals.

Parker denied that he bought the land for John Catron, and denied that Catron made any arrangement with him by which he was to buy it for him, but the weight of the evidence sustains the chancellor's conclusion. Parker was a relative as well as a near neighbor and close friend. Catron had had some trouble with his wife, and was living at home alone, boarding with Parker. Parker had gone his bond in a suit which his wife had brought against him. Parker allowed Catron after the sale to treat the land as his own. He sold timber from the place. He made an oil lease, Parker telling the lessee that Catron's title was all right; and he told several persons that he had bought the land for John, and was going to stand by him. Catron was not apprised of Parker's change of mind until after or about the time the year had expired in which the land might be redeemed. Parker then declined to receive from Catron the $30 which he had paid. On the question of fact, while the evidence is somewhat conflicting, we cannot disturb the chancellor's finding.

If Parker had not misled Catron, he might have gotten some one else to buy in the land for him; and if Parker had not let him deal with the land as his own, and held himself out as having bought it in for him, he might still have protected himself. To permit Parker to shield himself behind the statute of frauds, and keep the land, would be to sanction a fraud and deny effect to familiar principles of estoppel. He had a lien on it for the money which he had paid to redeem it from the execution sale. The arrangement with Parker was made to protect his interest, and created no less a constructive trust when his interest in the land was equitable than if he had held the legal title. It would be no less a fraud on Catron to permit Parker to keep the land in the one case than the other. The estoppel arises equally in either case.

Catron was allowed to testify to certain transactions with his brother Isaac, who was dead, and to prove in his own behalf statements made by him not in the presence of Parker. This was error. He could not testify for himself as to matters occurring with his dead brother, nor could he make evidence for himself. But if we eliminate all this, and regard only the testimony admittedly competent, the clear weight of the evidence sustains the chancellor's conclusion. So the error in the admission of evidence was harmless.

Judgment affirmed.

Ky.App. 1905.
85 S.W. 740, 27 Ky.L.Rptr. 536, 120 Ky. 145, 117 Am.St.Rep. 575


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