McConnell v. Gentry

• Decision Date: 23 January 1907
• Parties: MCCONNELL v. GENTRY.
• Court: Kentucky Court of Appeals

99 S.W. 278

MCCONNELL v. GENTRY.

Court of Appeals of Kentucky.

January 23, 1907

Appeal from Circuit Court, Fayette County.

"To be officially reported."

Suit by Wheeler Gentry against Payne McConnell. From a judgment in favor of plaintiff, defendant appeals. Reversed and remanded.

Morton Webb & Wilson and Faulconer & Faulconer, for appellant.

E. L Hutchison, for appellee.

HOBSON J.

At a commissioner's sale made in Lexington, in January, 1891 H. C. Payne purchased a tract of land containing 117 acres. It was agreed between him and his nephew, Payne McConnell that McConnell would take the front 44 acres of the tract, which included the improvements, and pay half of the purchase money. The land was to be paid for in three payments, due in 6, 12, and 18 months. When the first payment fell due, McConnell borrowed of Wheeler Gentry the money to make the payment, and to secure Gentry gave him a note with his uncle, H. C. Payne, as surety, and a mortgage on some personal property which McConnell owned. McConnell had gone into the arrangement with his uncle upon the promise of Gentry to lend him the money as he needed it, and he had taken possession of the land and made considerable improvements upon it. When the second payment fell due, H. C. Payne desired that the second and third payments be both made, in order that his title might be cleared up, and McConnell applied to Gentry to furnish him the money. After some discussion McConnell and H. C. Payne signed an order for the master commissioner to convey to Gentry the 44 acres, McConnell's part of the purchase. The commissioner made the deed to Gentry in February, 1892. McConnell remained in possession of the land, and on March 12, 1904, Gentry filed this suit against him to recover the possession. McConnell answered, alleging, in substance, that the transaction was only a mortgage of the land to Gentry, that it was conveyed to Gentry in trust for him, and that he held it as his own from the time he first entered upon it. On final hearing, the court entered a judgment in favor of Gentry, and McConnell appeals.

There is very little conflict in the evidence. McConnell testifies That Gentry said to him, at the time he purchased the property: "Why don't you go ahead and buy the place?" That he answered that he was not able; that Gentry then said: "Go ahead; I will let you have the money and give you all the time you want." That when the second bond fell due and his uncle wanted to pay off the other two bonds, he sold some stock and paid Gentry the note which he held and Gentry turned the note over to him. That he signed the writing for the commissioner to make Gentry the deed when Gentry furnished the money to make the other two payments, upon Gentry's assurance that he could take all the time he wanted to pay for the place, and when he paid for it Gentry would give him a deed. He also testifies that at that time he had made improvements upon the place, costing him between $600 and $700, the improvements being in bad condition when he received them; that after this he raised several crops of tobacco, and out of the proceeds had made different payments to Gentry upon account of the land, and had finally called on Gentry for a settlement, proposing that, if there was anything due him, he would borrow the money from a man named Burrows and pay him; that Gentry then said that he wanted McConnell to have the place and Burrows would try to beat him out of it. Gentry's testimony as to what took place at the time the order was made for the commissioner to make the deed to him, is as follows: "Q. What was the next transaction, if any, that you had with McConnell regarding the purchase of this land by him? A. Well, just about the time the second payment was due on this land, he came to me again to borrow money to pay on it; and, in the meantime, he told me that his uncle Henry Payne talked about giving the land up or not going to pay for it, and that they had some talk if each one could raise money to pay for the land they would do so, and he wanted to borrow money from me to finish paying for it. Q. Well, did you lend him the money? A. I told him I could not lend him any more money--I did not have it, may be, and could not let him have it, and he proposed that I would take the land and pay for it and it would be deeded to me. Q. Anything further? A. And let him have the privilege of using this land for three years and let him plow up, I believe, about 10 acres of the land and work it in tobacco. Q. Well, was that all of the agreement? A. At the end of that time if he could pay me my money I would let him have the land back, and if he did not, why the land was mine, and he was to pay no rent for the use of it for that time." That there was no three-year limit in the arrangement between McConnell and Gentry is clearly shown by the testimony of H. C. Payne and by the subsequent declarations of Gentry to others, as well as by his subsequent conduct. We do not deem it necessary to extend the opinion by setting out at length the testimony on this subject. It is clear from the whole record that Gentry lent McConnell the money to pay the last two payments on the place, which amounted to about $800, and that the deed was ordered to be made to him by the commissioner, simply as a convenient way of securing him in the money, he agreeing to reconvey the property to McConnell when his money was paid back to him with interest. It is insisted, however, that the trust, being in parol, cannot be enforced by reason of the statute of frauds. It is settled that the owner of the land who conveys it to another directly by deed absolute in form, cannot, in the absence of fraud or mistake, impeach his own deed for showing a parol agreement to the effect that the deed was not absolute, but only a security for money. Munford v. Green, 103 Ky. 140, 44 S.W. 419, and cases cited. On the other hand, it is equally well settled that where a commissioner's deed is obtained in a judicial proceeding upon the agreement...