McLaury v. Miller

Citations

• 64 Tex. 381

Syllabus

<p>1. Execution sale — Purchase by attorney of judgment creditor — Fraud— Inadequacy of consideration. — An attorney controlling a judgment rendered by a justice of the peace placed an execution in the hands of a constable, who on the same day made a return of nulla bona thereon. On the same day the attorney obtained another execution, directed to another county, which he caused to be levied on one of three town lots which was incumbered with a lien of §100, and in connection with two other lots was incumbered with another lien of §500. The lot levied on was worth §1,000, and one of the other incumbered lots was worth still more. The attorney was the only bidder at the sale, and bid for the lot §10, or one-half the amount of his client’s judgment. In a suit by the judgment debtor to set aside the sale, held:</p> <p>(1) It was the duty of the attorney, if he bid at all, to make the property bring a fair price, that his client’s judgment might be satisfied.</p> <p>(2) To sustain the sale under the facts would give countenance to a practice which sound public policy should condemn.</p> <p>(3) The officer selling would, under the circumstances, have been authorized to postpone the sale until some competition in bidding could have been secured.</p> <p>(4) Sound policy and good morals require that a purchase at execution sale, made by the attorney of the judgment creditor, should be set aside whenever its cancellation is sought by the debtor, who offers to return purchase money with interest, unless it appears that the sale was fairly made and for a fair price.</p> <p>(5) The inadequacy of price in this case was manifest, and the additional circumstances justify the inference that in a legal sense, the sale was fraudulent, though the purchase may in fact have been prompted alone by zeal for the client.</p> <p>(6) The sale should have been set aside.</p>