will convert him into a trustee of the legal title, and order him to hold it, or to execute the trust in such a manner as to protect the rights of the defrauded party and promote the safety and interests of society.' Jur., section 1044.

Eq.

If, however, the right to recover in this case rests upon a parol contract for the sale of land, it comes within the statute, and Amburgey can not maintain an action thereon.

There are a few cases which hold that where the agent has violated the confidence of his principal, the contract can not be deemed to be within the spirit of the statute of frauds, since it is merely an agreement by one party to act as the agent of another in conducting the negotiations for the transfer of property from a third party to the principal, and contemplates no transfer of land between the two parties to the contract. These cases hold that it is immaterial who pays the purchase price, since, whether it is paid by the principal or the agent, a trust in favor of the principal will result from the agent's breach of confidence in purchasing the property in violation of his agreement. Rose v. Hayden, 35 Kans., 106, 57 Am. Rep., 145; Chastain v. Smith, 30 Ga., 96; and Johnson v. Hayward, 74 Neb., 157, 5 L. R. A. (N. S.), 112, are of this class. These cases, however, are in a small minority. By the decided weight of authority the fact that the contract contemplated that the title should be taken in the name of the principal, seems to be considered immaterial and the principal's right to compel a conveyance to depend on who paid the purchase money. Where the agent buys the land for himself, and denies the trust, and no part of the purchase money is paid by the principal, it has been held in a uniform line of adjudications of this court that the principal can not compel the agent to convey the estate to him, as this would be directly in violation of the statute. If Amburgey's claim has any substantial foundation, it must rest upon the doctrine that a resulting or a constructive trust has arisen in his favor by reason of the transaction between him and Day. But in Bispham's Equity, section 80, the doctrine of resulting trusts is defined and limited as follows:

"Where, however, an agent buys land for his principal, and not only takes the conveyance in his own name, but also pays the price out of his own funds, no result

ing trust will arise and the case will fall within the statute of frauds, because in such a case there is no payment of the purchase money upon which the right of the principal can rest, but that right is dependent solely upon the verbal promise of the agent. Where no money is advanced and there is nothing more in the transaction than is implied from the violation of the parol agreement, equity will not decree the purchaser a trustee."

And, section 2353, of the Kentucky Statutes, likewise limits it 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."

In Sugden on Vendors and Purchasers, 15 Am. Ed., 703, the doctrine is thus stated:

"Where a man employs another person by parol as an agent to buy an estate, who buys it for himself and no part of the purchase money is paid by the principal and there is no written agreement, he can not compel the agent to convey the estate to him as that would be directly in the teeth of the statute of frauds.'

Turning to the Kentucky Decisions, we find in the early case of Parker's Heirs v. Bodley, 4 Bibb., 102, that Bodley relied upon an oral contract by which Parker was to buy certain land in Pennsylvania for the joint account of Bodley and Parker; and in consequence of the agreement Parker bought the land, and took the bond in his own name. In denying any relief to Bodley the court, speaking through Judge Owsley, said:

"In the consideration of this cause two points are presented for determination. First, does the contract come within the provisions of the statute of frauds, etc.? And, if it does, second, are there any circumstances in the case taking it out of the statute?

* *

**

"The statute is a beneficial law, made for the avowed purpose of preventing frauds and perjuries, and we apprehend, should be construed liberally to attain that end; and although a contract for the purchase of lands may not come within the express letter of the law, yet as all the danger to be apprehended by suffering the admis

sion of parol evidence in other cases of the sale of land, would equally apply to the case of a purchase, a construction calculated to meet the evil intended to be remedied by the makers of the statute, requires that such a case should be held to come within the statute.

"If the trust is considered as created by the agreement of the parties, if it does not come within the letter, that liberality of construction just mentioned, which is alone calculated to prevent the mischiefs intended to be prevented by the statute emphatically requires it should be brought within the influence of the statute. Were the trust one resulting by operation of law, from facts and circumstances, there would not exist the same reason, and perhaps the statute in that case would not apply. But it is evident the trust in the present case, if it can be so denominated, is one created by contract, and is consequently within the statute."

In Fischli v. Dumarsely, 3 A. K. M., 23, Dumarsely, relied upon a contract, similar in substance, to that in Parker's Heirs v. Bodley, and the court, Chief Justice Boyle writing, used this language:

"It is evident that the decree can not be sustained. The parol testimony in the case strongly conduces, indeed, to prove the agreement alleged in the bill; but that agreement was never reduced to writing; and a mere verbal or unwritten contract for lands is remediless, according to the express provisions of the statute against frauds and perjuries.

*

"The idea suggested in the argument that Fischli acted as the agent of Dumarsely in making the purchase to the extent of a moiety of the lots, and that the statute does not require the authority of an agent to be in writing, can not take the case out of the influence of the statute. The sufficiency of the authority of Fischli to have made a joint purchase in Dumarsely's name and his own, is not called in question. He has not done so, but has made the purchase in his own name; and whether he had an authority to make a purchase for the joint benefit of both, or not, is immaterial, if the agreement that he would do so can not be enforced because it was not reduced to writing."

Again, in Fowke v. Slaughter, 3 A. K. M., 56, Slaughter bought from White a tract of land at $6 per acre, for which he gave his obligation and took from White a bond for a deed. Slaughter subsequently sold the land

Vol. 147-5

to Fowke and West at $8 per acre, and assigned to them his title bond. White brought suit against Fowke and West for the purchase money, and recovered judgment; whereupon Fowke and West filed their bill in equity to stay the proceedings, alleging that Slaughter had agreed to purchase the land, as their agent and for their benefit; that after he made the purchase he reported to them that he had given $8 per acre instead of $6, and under the influence of that representation they had given their bond for that price. Slaughter denied the agency, and the court, again speaking through Chief Justice Boyle, held that the contract, being in parol, could not be enforced, using the following language:

"But if the fact had been as the complainants allege it would not have availed them; for they seek not to vacate the contract on the ground of the fraud or the exorbitancy of the price, but to have the benefit of the defendant's purchase, which they allege he was bound to make as their agent; and they have wholly failed to make out a case that would entitle them to such relief. There is some parol testimony, of an equivocal character, tending to prove that the defendant had undertaken to make the purchase as the agent of the defendants; but there is no written evidence of such an agreement. And, as in fact, he made the purchase in his own name, and upon his own credit, a mere verbal agreement to make the purchase for the complainants can not be enforced under the provisions of the statute against frauds and perjuries."

Letcher v. Letcher's Heirs, 4 J. J. M., 590; Graves v. Dugan, 6 Dana, 632; Griffin v. Coffey, 9 B. M., 453; Hocker v. Gentry, 3 Met., 474; Ecton v. Moore, 4 Ky. Law Rep., 309; Commonwealth v. Maysville B. S. R. R. Co., 94 Ky., 16; Estes v. Estes, 142 Ky., 262, and Wormald's Grdn. v. Heinze, 28 Ky. Law Rep., 1022, 90 S. W., 1064, announce the same general doctrine.

A distinction has been made between cases of the class above described and those cases where one buys. land at a judicial sale under a parol agreement to purchase for another, and fails to convey in accordance with the agreement. The last class of cases are not within the statute of frauds, and a resulting trust will arise where the promisee furnished the purchase money, or had an actual interest in the estate, or a bona fide claim thereto. Crutcher v. Muir, 90 Ky., 142; Griffin v. Schlenk, 139 Ky., 523; Sherley v. Sherley, 97 Ky., 512; Payne v. Mc

Clure Lodge No. 539, 115 S. W., 764; Davis v. Spencer, 128 S. W., 295; Lancaster Trust Co. v. Long, 220 Pa., 449; Wiedmann v. Crawford, 142 Ky., 303; Parker v. Catron, 120 Ky., 145; and Warden v. O'Brien, 142 Ky., Ky., 633, belong to this last class of cases.

But in the case at bar plaintiff's action is, in the light of the Kentucky Decisions, based upon the contract by which Day agreed to buy the land for him; and under the long line of authorities above shown, the statute of frauds governs this case. The demurrer to the petition. in Amburgey v. Day should have been sustained.

The judgment in Grinstead v. Amburgey is affirmed; the judgment in Day v. Amburgey is reversed, with instructions to sustain the demurrer to the petition.

Miller v. Wheeler.

(Decided February 23, 1912.)

Appeal from Campbell Circuit Court.

1. Appeal-Right to Prosecute.-Where a debtor's land had been sold at judicial sale, and before the expiration of the year in which the debtor might redeem his property he sold and conveyed said land, the debtor's grantee had the right to prosecute an appeal from an order denying his right to redeem the land. 2. Judicial Sales-Right to Redeem.-In order for the owner of the land sold at a judicial sale, or his grantee, to exercise the right of redemption, it is not necessary that the claim should be presented by a formal pleading; but where the grantee files his affidavit and deed showing his title, and a tender of the purchase money, with interest, to the purchaser, and moved that he be allowed to redeem the land which he had bought after it had been sold, he was entitled to make the redemption.

3.

4.

Appeal to be Prosecuted by Real Party in Interest.-Where a debtor's land had been sold at judicial sale, and before the expiration of the year in which the debtor might redeem his property he sold and conveyed said land, his grantee could prosecute the appeal in his own name, he being the real party in interest. Redemption-Right of Under Judicial Sales.-Where the owners of two tracts of land mortgaged them to secure the payment of their joint note, and both tracts were subsequently sold at judicial sale for the purpose of paying the debt, and the rights of redemption in both tracts were subsequently sold jointly, and not separately, the owner of either tract had the right to redeem