A. Jones and John Mackay v. William Martin, 26 Tex. 57

Whebleb, C. J. The circumstances attending the purchase of the land by the attorney of the plaintiff, seem to render it obnoxious to the observations of Chief Justice Robertson in the case of Howell’s Heirs v. McCreery’s Heirs, (7 Dana, 388,) and of Chancellor Kent in Howell v. Baker, (4 Johns. Ch. R., 118,) to the effect that such a transaction carries evidence of abuse upon its face. It is questionable whether a purchase by an attorney under his client’s execution, over which he had control, Avould not be deemed, in itself, invalid in England. In Howell v.

Baker, (supra,) the Chancellor quotes an observation of Lord Thurlow, to the effect that “ no attorney can be permitted to buy in things in a course of litigation, of which litigation he has the management. This, the policy of justice will not endure.” And the Chancellor strongly intimates that the rule disqualifying trustees, solicitors and attorneys, from purchasing at sales brought about" by their agency, might justly be applied to the case of an attorney purchasing for his own benefit, at a sale under his client’s execution.

Waiving the decision of that point, however, the Chancellor held, that the circumstances under" which the purchase was made by the attorney warranting an inference of unfairness in the sale,.were sufficient, when taken in connection with his character as attorney, to constitute him a trustee for the parties whose interests were concerned in the sale, and decreed accordingly. In Howell’s heirs v.

Mc-Creery’s Heirs, (supra,) the court said they would not go so far as to hold, that all such purchases were interdicted by the law, but that “public policy, and the analogies of the law, require that they should be considered, per se, as in the twilight between legal fraud and fairness, and should be deemed fraudulent, or in trust for the debtor, upon slight additional facts.” It is scarcely possible that a sale in gross, pursuant to such a levy upon a mass of property, without any specific description, embracing undefined and unascertained interests, could be a fair sale of the property for its full value.

It seems not to admit of doubt, that comparatively inconsiderable distinct parcels of the property, if sufficiently designated and described, would have sold for a sum sufficient to satisfy the execution.

Such being the case, the sale of the whole in mass, and in the terms of this extraordinary levy, cannot be deemed otherwise than unreasonable and unjust, and quite sufficient, considering that the purchaser was. the attorney of the plaintiff in execution, having control of the execution and levy, to set aside and annul the sale, or to constitute him a trustee, holding the title in trust for the parties whose interests were concerned in the sale—that is, the defendant in execution and plaintiff in this suit, and the intervener, whose mortgage, subsequent in date to the lien of the judgment, gave him an interest.

Whatever effect may be ascribed to the presence and silence of the former at the sale, though he should be deemed by his conduct to have waived the irregularities in the levy and sale, this cannot be said of the intervenor; and as to him, at least, the sale under circumstances so calculated to depreciate the property and cause it to sell for greatly less than its value, ought to be deemed invalid.

But, aside from ail question of the validity of the sale in other respects, if, in truth, there was an understanding, as alleged, between the plaintiff and defendant at the time of the sale, that the former should buy in the property for the benefit of the latter, and give him ten days within which to redeem by paying the money, and this was a question for the jury, the refusal of the former to abide by and carry out this understanding or agreement, operated a manifest wrong and injustice upon the latter.

The effect of such an understanding would be to induce the debtor to relax his efforts to obtain the money immediately, in order to save his property, or to prevent its sacrifice by procuring the intervention of a friend to buy it in for him, or to induce its sale for its fair value. If known or suspected, it was calculated to repress competition and cause the property to sell for less than it would otherwise have brought.

Under such circumstances, the purchaser must be deemed to create a trust in behalf of the plaintiff who had the right to redeem the estate by the payment of the debt; and having made a tender of it, the action was well brought to enforce the right to redeem. (Howell v. Baker, 4 Johns. Ch. R., 118.) The giving of the receipt to the defendant for the excess of his bid above the sum required to satisfy the execution, as the money was not in fact paid, could in no way compromit the plaintiff „or affect his right; for he was but carrying out, in good faith on his part, the understanding between them.

The tender, as deposed to by the witness Townsend, appears to have been in time, and much more than sufficient in amount, and to have been refused and the right of the plaintiff to redeem denied, unless the plaintiff would pay the defendant a bonus of one thousand dollars to give up the legal advantage supposed to have been obtained. Such a demand was manifestly unjust and oppressive, and -the plaintiff was under no legal necessity to accede to it. All the defendant had the right to claim was to be re-imbursed the amount expended in satisfying the execution.

Ifj indeed, there was any defect in the tender, it was waived by the failure to indicate it at the time, and assigning a reason for refusing it which was unfounded. The case, as respects the intervenor, is free from the questions-Which were raised as to the right of the plaintiff, arising from his conduct at the sale. That very conduct, considered in reference-to the defendant’s agency in the business, affords strong grounds-for the interposition of the court in his behalf.

These views lead us to the conclusion that the court erred, both as to the plaintiff'and intervenor, in excluding the evidence offered by them respectively. The allegations of the petition of the intervenor show no sufficient cause for making the sheriff, McKinney, a party to the suit, Since no decree is sought against him. The more fact that he made the sale could not subject him to a suit.

But, as to the deputy, Ballard, who is alleged to have been a party to a fraudulent combination with the defendant to the prejudice of the plaintiff’s right, and is charged with being secretly interested with the defendant in the purchase, and to have received from him a deed to a part of the land, the allegations are sufficient to require him to answer to the action of the intervenor. The judgment is reversed, and the cause remanded for further proceedings. Eeversed and remanded.