Harlan v. Eilke

JBDGE PAYNTEK. delivebed tite opinion of the coubt. It appears from satisfactory testimony that in 1882 Ellie Eilke, tlie eleven-year-old son of William Eilke, Sr., desired to become a jockey. His father reluctantly consented to it, but finally did so, and emancipated his son, saying to him: “My boy, if you think you can make a living, you can go.” He admonished his son to save his money; send it to him and he would invest it for him. Under these circumstances the son entered upon his career as a jockey, and in the prosecution of his business traveled over the country for several years, earning a yearly salary of some $3,000 or $4,000. The father seems to have been afflicted and thriftless. The son sent him several thousand dollars, and he invested it in the real estate in controversy. The father, without the knowledge of the son, had the deeds made to himself. In 1893 the father died, and this action was [644] instituted by Elbe Eilke to have the trust declared, and to recover the property. Section 19, article 1, chapter 63, General Statutes (section 2353, Kentucky Statutes), reads 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 said trust, shall have purchased the lands deeded with the effects of another person.” We agree Avith the learned counsel for appellants, that no claim like that of the appellee should be sustained except upon the fullest and clearest proof. After the examination of the proof in this case we can not escape the conclusion that the money with which the property was bought was that of the appellee, which he sent to his father to invest for him. Appellee introduced several witnesses to sustain his claim. They appear to be worthy of credit; besides no effort AAas made to impeach them or to contradict their statements. In addition to the facts which they prove with reference to the son sending home his money to the father and its investment in the real estate, they also proAre that the father had no source from which he obtained the money Avith which to purchase property except through the son. There is nothing in the statute quoted which pre [645] vents the trust from being enforced. On tbe other band, tbe saving clauses in tbe statute recognize tbe equitable doctrine that an enforcible trust exists where one takes a deed in bis own name without tbe consent of tbe person paying tbe consideration, or where tbe grantee, in violation of such trust, shall have purchased tbe lands deeded with tbe effects of another person. We are of opinion that tbe land was held in trust for Ellie Eilke, and that be is entitled to recover it. (Grayham v. King, 96 Ky., 339; Faris v. Dunn, 7 Bush, 276; Miller v. Edwards, 7 Bush, 394.) Tbe judgment is affirmed.