Clark v. Tims ( 1883 )

Opinion.

Cooper, J.:

The appellee was the owner of a judgment against her father, N. Thompson, who had conveyed to her the certain lands which were afterwards levied on under a judgment, junior to the one owned by her. At the sale, under this execution, the attorney for the plaintiff, Clark, was present and expressed his intention of making the lands levied on bring their value, and had procured the attendance of bidders who were prepared to bid for the property. Mrs. Tims, who was present at the sale, expressed a desire to become the purchaser, and upon her assurance and promise that she would pay the judgment of Clark, the attorney sold the lands under his execution, and they were purchased by Mrs. Tims for a sum less than their real value. Mrs. Tims paid her bid to the sheriff, and having done so interposed her claim to the money as the holder of the senior judgment against Thompson. In the court below the money was directed to be appropriated to the payment of her judgment.

We think under the facts shown it would be a fraud upon Clark to permit the money realized by the sale of the lands to be appropriated to the satisfaction of Mrs. Tims’ judgment.

The judgment is reversed, and a judgment directed to be entered here, directing the money in the hands of the officer- to be paid to the appellant.