Carden v. Lane

• Decision Date: 22 January 1887
• Parties: CARDEN <I>v.</I> LANE.
• Court: Arkansas Supreme Court

2 S.W. 709

CARDEN

v. LANE.

Supreme Court of Arkansas.

January 22, 1887.

Appeal from circuit court, Polk county.

Z. P. H. Farr, for appellant.

COCKRILL, C. J.

A saw-mill and fixtures belonging to the appellant, and worth between $400 and $500, were sold by the sheriff, under an execution against him, to the appellee, for $50. About two months after the sale, and after an ineffectual effort to repurchase the property, the appellant filed his complaint in equity against the purchaser and the plaintiff in the execution to set aside the sale. He relies upon the inadequacy of the price paid by the purchaser, and the fact that he was led by the attorney for the plaintiff in the execution to believe that the sale would not take place on the day advertised, but would be postponed for the purpose of submitting to his client a proposition made by the appellant to discharge the judgment upon which the execution issued by a conveyance of real estate to the person who owned it. The proof shows that the agreement was made, and that the sale was allowed to proceed in violation of it. The appellant had no notice of the sheriff's intention to proceed with the sale until 10 o'clock of the day it was made. He was then about three miles from the place of sale, at the store-house of the appellee, and was then informed that the latter had gone to the mill for the purpose of buying it under the execution. It was the day originally advertised for the sale. The sheriff had his instructions from the attorney controlling the execution to sell. The appellant had given him no positive information of the agreement not to do so, and the appellee was not apprised of the proposition to compromise, or of the agreement to postpone the sale. He was absent from the county when the arrangement was made for the postponement, and returned only the night before the sale. After receiving the information that the appellee had gone to attend the sale, and bid for his property, the appellant made no effort to reach the place of sale, and inform him, and any others who might intend to bid, of the breach of faith on the part of the attorney who controlled the execution. He might readily have done this, for the proof shows that the sale did not take place until 12 o'clock, — about the usual hour for such sales. Notice to the bidder, before the sale, of the agreement to postpone, would have prevented the sale, or else have rendered the purchase invalid. The owner thus had it easily in his own hands to prevent the sacrifice of his property, but he seems to have preferred to await the result of the sale, and seek his opportunity to repurchase. His equities, under the circumstances, cannot be said to be superior to the purchaser's.

It is the policy of this court, settled by a line of precedents,...