
    CASE 63. — ACTION BY BERTIE ANTLE -GRIFFIN AGAINST MINNIE SCHLENK AND OTHERS
    May 29, 1907.
    Griffin v. Schlenk, &c.
    Appeal from Jefferson Circuit Conrt (Chancery Branch, First Division).
    From the judgment plaintiff appeals
    Affirmed.
    1. -Contracts- — Agreement for Benefit of Third Person — Infants.— Where so-mle of the owners of land subject to a mortgage agreed that -on the sale- of the land under -decree of court one of them should bid in the property for the benefit of -all, the fact that one of the -owners, who wa® not a party to the contract, was -an -infant -and incompetent to contract, -did not preclude him from sharing in the benefits of the agreement.
    2. Frauds, Statute of — Contracts Relating to Realty. — A .parol contract between joint owner® of real property, whereby one is to bid at .a public -sale thereof for (the benefit of all, is valid.
    S. Trusts- — Creation—Constructive Trust.- — -Where joint owners of land subject to -a mortgage agreed that .at .a public salle of the land one of them/ wa® to bid the same in -for the benefit /of the others, except the mortgagee, the purchase by su-ch one under the agreement -created a trust by operation of law for the benefit of all the owners, enforceable at the suit of any or all of them; and it was not material that -the purchaser was not paid in advance -the others’ proportion of the money to .purchase the property.
    4. Same — Statute of Frauds — Estoppel.—Constructive trusts are not within the statute of fraud®, -since they are bottomed on the doctrine of -estoppel and the operation of an estoppel is never -affected by the statute of frauds.
   Opinion of the Court by

Judge Settle

Affirming.

The appellant, Bertie Antle Griffin, and appellees, Minnie Schlenk, William Antle, Tom Antle, and Willie TIerritt, the latter an infant, jointly owned a tract of land in Jefferson county, to obtain a decree for the sale of which they brought suit in the court below. Two grounds for the sale of the land were set forth in the petition: (1) That the property was indivisible; (2) that one Thompson, who was made a defendant to the action, held a mortgage lien upon the property as security for the payment of a note of $1,632.83, which was past due. Thompson filed an answer, which was made a cross-petition against the other parties to the action, setting up his debt and lien, and joining in the prayer of the petition for a sale of the land. Judgment was rendered by the lower court, directing its sale for the payment of Thompson’s debt and division of the remaining proceeds between the joint owners. Before its sale the land was valued at $4,010, and when sold by the commissioner at public outcry appellant, Bertie Antle Griffin, became the purchaser at her bid of $3,300. Being ruled to execute sale bonds for the purchase money as directed by the judgment, appellant filed a response saying appellees, the other joint owners, were claiming that her purchase of the land was made for the benefit of all the joint owners, which she denied, and asking that the question as to whether they were to share in her purchase be determined by the court before requiring her to execute the sale bonds. Thereupon Minnie Schlenk, ¥m. Antle, and the guardians ad litem of the infant Willie Herritt, filed exceptions to the report of sale, and resisted its confirmation, upon the alleged grounds that the land was sold at a grossly inadequate sum, and that appellant was trying to procure a deed from the commissioner conveying the land to her alone, in violation of an agreement made-by her with the other joint owners, at the time of the sale and before tbe property was knocked down to her, that sbe would buy it for them all. Tbe parties excepting asked that they and tbe other heirs be adjudged joint owners of tbe land under appellee’s purchase, and made grantees with ber in tbe commissioner’s deed, or, if this could not be done, that tbe sale be set aside and a resale of tbe land ordered. Tbe lower court, on tbe trial of tbe exceptions, adjudged that the appellees, except Thompson, were entitled to share equally with appellant in tbe property purchased by ber, and gave appellant tbe option to consent that appellees might become grantees with ber in tbe deed to be made by tbe commissioner, or be released from ber bid made at tbe sale; but sbe refused to consent, and judgment, was then entered setting aside tbe sale and directing a resale of tbe land. Appellant excepted to that judgment, and prosecutes this appeal.

A number of affidavits were filed by tbe parties in support of and against tbe exceptions. Without discussing in detail tbe evidence thus furnished tbe lower court on tbe issues of fact raised by tbe exceptions, we think its weight sustains tbe court’s conclusions that there was an arrangement between appellant and appellees, or some of them, made at tbe time of tbe sale and just before ber purchase of tbe land, whereby sbe agreed to buy it jointly for herself and appellees ; that they relied upon ber promise to do so, and Wm. Antle was induced thereby not to bid upon tbe property, and Mrs. Schlenk to quit bidding therefor, upon receiving information of tbe agreement after tbe sale began. We also think it fairly apparent that but for tbe agreement in question tbe land would have brought a larger sum, and something near its appraised value of $4,010. It is not material that tbe infant, Willie Herritt, was not a party to the agreement referred to. His infancy would have rendered him incompetent to contract, if he had been present when the agreement was made; but as a part owner of the land he was nevertheless entitled to share in the fruits of the agreement, for, while it was made between appellant and only a part of the other joint owners of the land, by its express terms all the joint owners were included in and to become beneficiaries of the purchase made by appellant. Before setting aside the sale it was proper for the chancellor to give appellant the opportunity to carry out her agreement with appellees by consenting that they might be made grantees with her in the deed to be made by the commissioner ; but, when she refused to give such consent, there was no alternative but to set aside the sale of the property and order its resale upon the terms specified in the original judgment.

Appellant’s contention that the agreement, being in parol, was within the statute of frauds, is wholly untenable. “An agreement between joint owners of real estate that one shall bid at a public sale of it for the benefit of both (or all) is valid, although by parol.” 29 Am. & Eng. Ency. of Law (2d Ed.) 899. Appellant’s purchase of the land under the agreement created a trust by operation of law for the joint benefit of all the appellees and herself. Such trusts are enforceable at the suit of all or any of the beneficiaries. It is not material that she was not paid in advance .their proportion of the money to purchase the property. Some of them, according to the evidence, were ready and able to buy it when her bid was accepted, but were prevented by the agreement from bidding. In permitting appellees to share with appellant the benefit of the purchase, the court could require them to contribute ratably to the making up of the purchase price. Appellees showed their willingness to contribute their respective shares of the purchase price paid for the land by appellant, but were not permitted to do so by her act in repudiating the trust imposed by the agreement.

Constructive trusts are held not within the statute of frauds, because they are bottomed on the doctrine of estoppel, and the operation of an estoppel is never affected by the statute of frauds. Morris v. Shannon, 75 Ky. 89; Martin v. Martin, 55 Ky. 8; Miller v. Antle, 65 Ky. 407, 92 Am. Dec. 495; Green v. Ball, 67 Ky. 586; Parker v. Catron, 85 S. W. 740, 27 Ky. Law Rep. 536; Pomeroy’s Eq. sections 1030-1044. In the case at bar the enforcement of the trust was not sought by appellees by a pleading filed to that end. They only sought, by excepting to the sale, to prevent appellant from obtaining an undue advantage from the repudiation of the agreement under which she was allowed to became the purchaser of the land. The only relief authorized by the record was given by the court in setting aside the sale and restoring the status that existed before the agreement in question was made.

Finding no cause for disagreeing with that decision, the judgment is affirmed.  