purchased by each of them in their individual names for the partnership, they became partnership assets, liable for the debts of the firm, and to be treated as other partnership assets; for it cannot be material how the title appears if it in fact belongs to the partnership. An agreement to become partners in trafficking in real estate is not within the statute of fraud and perjuries. That statute, as re-enacted in this state, reads: "No action shall be brought to charge any person upon any contract for the sale of real estate, or any lease thereof, for longer term than one year,

unless or note

the . . . . contract, or some memorandum thereof, be in writing, and signed by the party to be charged therewith, or by his authorized agent": Ky. Stats. 1903, sec. 470. An agreement to become partners in dealing in real estate is neither a contract to buy nor a contract to sell real estate as between the parties to it. So far as the formation of the copartnership is concerned, the title to real estate is no wise affected by the making of the agreement. The terms 110 of the agreement, the mutual undertakings by the partners as between themselves as to what each will contribute, and the interests of each in the profits of their undertaking, are matters not necessarily affected by the statute. The most numerous, and what seems to us the best-reasoned, authorities hold that such contract need not be in writing if to be begun and may end within a year, although as a fact it may not be terminated for more than a year. We cite the following among many cases holding these views: Browne on the Statute of Frauds, secs. 364-367; Meagher v. Reed, 14 Colo. 335, 24 Pac. 681, 9 L. R. A. 455; Dale v. Hamilton, 5 Hare, 369; Jones v. Davies, 60 Kan. 309, 72 Am. St. Rep. 354, 56 Pac 484; Bates v. Babcock, 95 Cal. 479, 29 Am. St. Rep. 133, 30 Pac. 605, 16 L. R. A. 745; Holmes v. McCray, 51 Ind. 358, 19 Am. Rep. 735; Richards v. Grinnell, 63 Iowa, 44, 50 Am. Rep. 727, 18 N. W. 668; Chester v. Dickerson, 52 Barb. (N. Y.) 349, 54 N. Y. 1, 13 Am. Rep. 550. In this state the doctrine prevails that partnership real estate is deemed personalty for the purposes of the partnership (Spalding v. Wilson, 80 Ky. 589, 4 Ky. Law Rep. 575; Casky v. Casky, 5 Ky. Law Rep. 775; Flanagan v. Shuck, 82 Ky. 617, 6 Ky. Law Rep. 699), which is sometimes given as one of the reasons for the rule that agreements to become partners in dealing in lands is not within the statute: Flower v. Barnekoff, 20 Or. 132,

25 Pac. 370, 11 L. R. A. 149. When the partnership is formed, though by parol, and the status of the copartners has become thereby fixed, the firm's transactions as between it and others concerning lands are subject to the same terms under the statutes as any individuals are. The firm, if it proposes to buy or sell land, will be bound or not in the transaction, precisely as an individual would be under the same circumstances: Duncan v. Duncan, 93 Ky. 37, 13 Kỵ. 111 Law Rep. 917, 40 Am. St. Rep. 159, 18 S. W. 1022. It may buy or sell by its agent, whose authority need not be in writing: Tewksbury v. Howard, 138 Ind. 103, 37 N. E. 355; Brown v. Eaton, 21 Minn. 409. The memorandum or contract, though signed by the agent alone, his principals not being named, is sufficient under the statute to charge the principals: Salmon Falls Mfg. Co. v. Goddard, 14 How. (U. S.) 446, 14 L. ed. 463. As copartners are deemed agents for each other in the transactions of the firm (Ferguson v. Sims, 3 Ky. Law Rep. 684; Davis v. Wiley, 3 Ky. Law Rep. 315, 755; Scott v. Colmesnil, 7 J. J. Marsh. 416), a memorandum signed by a partner, or authorized by him and in his name, but made for the firm, will bind the partners.

The case of Parker's Heirs v. Bodley, 4 Bibb. 102, cannot be deemed in conflict with what is herein adjudged. That case ought to turn upon the fact that the agreement between Bodley and Parker to become copartners in the purchase of the Byers estate was not consummated until after Parker had bought the land. It was then held that his agreement, subsequently entered into, to sell a part of it to Bodley in the way of partnership enterprise, was within the statutes of frauds. But if the opinion be not susceptible of this construction, it is not in harmony with the later decisions of this court, nor with the trend of the decisions on this subject generally.

It follows that, if either of the appellees was in fact acting for his firm in buying the lots bid in by him at the sale, and was acting in pursuance to the partnership agreement alleged, his act in that matter was the firm's act. He had the power to bind his firm by employing an agent to act for it in signing a sufficient memorandum to comply with the statute. So that the signature of the auctioneer to his memorandum became 112 the binding act of the firm in that transaction. As the sale was to appellees as partners, which

gave them joint interests in the lots, and made them jointly liable therefor (assuming the allegations of the petition to be true), the tender of one deed to them conveying the lots to them jointly was a full compliance with appellant's obligation under the terms of the sale to convey the title as a condition precedent to demanding the money and the execution of the notes. In our opinion, the petition stated a cause of action, and the court erred in sustaining the demurrer to it.

Judgment reversed, and cause remanded for proceedings consistent herewith.

Authorities upon the Question involved in the principal case will be found in the note to McCoy v. McCoy, 102 Am. St. Rep. 230, on what amounts to a contract for the sale of land within the meaning of the statute of frauds.

PARKER v. CATRON.

[120 Ky. 145, 85 S. W. 740.]

TRUSTS Judicial Sales-Statute of Frauds.-If one, pursuant to an oral agreement with another, purchases land for the latter at judicial sale while the latter is in possession of, and has an interest in, such land, a constructive trust arises in his favor, which is not affected by the statute of frauds. (p. 576.)

TRUSTS Judicial Sales--Payment of Consideration. If one, pursuant to an oral agreement with another, purchases land for the latter at judicial sale while the latter is in possession of and has an interest in such land, a constructive trust arises in favor of the latter, and the fact that such purchaser paid the consideration himself does not destroy the trust, when the one for whom it was really purchased offers to pay such consideration and is kept from paying it by the act of the purchaser, who refuses to accept it, and takes a deed to himself. (p. 577.)

CONSTRUCTIVE TRUSTS Arise whenever the legal title to property is obtained by a person in violation, express or implied, of some duty owed to one who is equitably entitled to such title and when the property thus obtained is held in hostility to his beneficial rights of ownership. (pp. 577, 578.)

CONSTRUCTIVE TRUSTS are not within the statute of frauds. (p. 578.)

CONSTRUCTIVE TRUSTS rest on the doctrine of estoppel, the operation of which is never affected by the statute of frauds. (p. 578.)

WITNESSES Competency-Interest.-A witness cannot testify for himself as to matters occurring with his brother since dead, and thus make evidence for his benefit. (p. 579.)

J. S. Hays and J. M. Hays, for the appellant.

J. H. Wilson, P. D. Black and J. D. Black, for the appellee.

father of appellee, John H. his brother, Isaac Catron, a Thereafter a creditor of the

147 HOBSON, C. J. The Catron, conveyed to him and tract of land in Knox county. 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 five hundred dollars and six hundred dollars. John H. Catron afterward 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 twenty-five dollars. The equity of redemption was then sold, and Parker bought this for five dollars. 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 148 conclusion. Parker was a relative as well as a near neighbor and close friend. Catron 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 thirty dollars which he had paid. On the question of fact, while the evidence is somewhat conflicting, we cannot disturb the chancellor's finding.

It is earnestly maintained that the agreement of Catron, being in parol, is within the statute of frauds. In Stark's Heirs v. Cannaday, 3 Litt. 399, 14 Am. Dec. 76, it was held that where an agent verbally employed to purchase land for his principal does so with the money of the principal, but makes the contract in his own name, a trust for the principal will result by implication, which is not affected by the statute of frauds. The reason given by the court for its conclusion is as follows: "For the statute only forbids the enforcement of a trust or equity created by contract, and not such as results from the nature of the transaction by implication of law." The doctrine of this case was followed in Lisle v. Lisle's Administrator, 4 Ky. Law Rep. 990, where the purchase was made at a judicial sale by one for another who paid the consideration. Appellant insists that these cases are not in point, because here appellee did not pay the consideration. Still, he offered to pay it, and was kept from paying 149 it by the act of appellee, who refused to accept it, and insisted on having the deed made to himself. The payment of the consideration by the principal is not the only state. of case in which the rule applies. The rule rests upon the idea that the purchaser holds the land in trust for his principal. It is the constructive trust which underlies the rule. In Pomeroy's Equity, section 1030, it is said: "All trusts by operation of law consist, therefore, in a separation of the legal and equitable estates; one person holding the legal title for the benefit of the equitable owner, who is regarded by equity as the real owner, and who is entitled to be clothed with the legal title by a conveyance. Certain instances of this class are trusts sub modo. They are termed 'trusts' because the beneficial owner is entitled to the same remedies against the holder of the legal title which are given to the beneficiary under a true trust. All trusts which arise by operation of law are, as the name indicates, excepted from the requirements of the statute of frauds." Again, in section 1044, it is said: "Constructive trusts include all those Am. St. Rep., Vol. 117-37