
    Adam Foster et al. vs. William E. Pugh.
    It seems that, where real and personal property of a defendant in an execution, are sold under the execution, and the same person purchases both, the fact that the purchaser permits the personal property to remain, after the sale, in the defendant’s possession, even if prima, fade fraudulent as to the personal property, is not evidence of fraud as regards the realty.
    Mere inadequacy of price is not necessarily evidence of fraud ; very gross inadequacy, under certain circumstances may be so ; hut the fact that one lot sold at five dollars, and one at ten dollars, at sheriff’s sale, the value of the lots not being shown, will not be evidence of fraud.
    The fact that the defendant in an execution, whose real estate has been sold under it, claimed rent of the realty after the sale, is no evidence of fraud in the purchaser; possession of realty does not accompany the sale by the sheriff; and the proof must implicate the purchaser in the admission of the defendant’s right to collect the rents, to make it fraudulent as to the purchaser.
    Circumstances calculated to excite suspicions, that there was an understanding between the defendant in an execution, and the purchaser of his real estate thereunder, are not sufficient to justify the court in declaring the sale void, in the absence of all proof of unfairness in the sale, by an effort to keep off bidders, or to make the property sell at a low price.
    A bill was filed to set aside a purchase at sheriff’s sale, on the ground of fraud, and the court not being satisfied that the proof established the fraud, dismissed the bill without prejudice to the party’s remedy at law.
    Where an attorney at law purchases property under his client’s judgment, and a third person seeks to have the sale set aside, on the ground of fraud, the client should be made a party to the bill; but if the client is not a party to the bill, and does not complain, the sale will not be set aside, because the purchaser was the attorney of the plaintiff.
    
      On appeal from the equity side of the circuit court of Attala county; Hon. Robert C. Perry, judge.
    William E. Pugh alleges in his bill, that on the 27th March, 1839, John T. Simmons recovered in the circuit court of Attala county a judgment against the defendant, James R. Winn, and others, for $2053-74, upon which an alias fieri facias issued to the April term, 1840, of said court, which was levied by the sheriff on several pieces of property of Winn, both real and personal, among which were lots eighty and one hundred and one, in Kosciusko; that at the sale of said property, the defendant, Foster, bid off said lots, one for five dollars and the other for ten dollars, and was also the apparent purchaser of nearly all the other property sold as Winn’s; the sheriff executed deeds to said lots to Foster; in April, 1841, the complainant and John O. Hunter recovered in said court two judgments, amounting to about $900, against said Winn et al.; executions issued on said judgments, and on the 3d day of March, 1842, were levied on said lots eighty and one hundred and one, and they were sold on the 11th of April, 1842, and were purchased by complainant, and a deed made by the sheriff to him for the same, which was duly recorded; that Foster was present at the last sale, and did' not set up his title. The bill charges that the sale made- under Simmons’s execution was made for the benefit- of Winn, and to shield his property froto his debts; that at the sale-the execution was either Winn’s, or he was permitted to- use it to- defraud his creditors; that Foster did not pay one> cent for- all1 said purchases, or if he did Winn has paid him back, or accounted with him for it, according to an agreement either expressly or impliedly entered into between them before the sale; if Simmons ever-received the money bid by Foster, he did not receive it from- the sheriff or Foster, but from Winn or some agent of' his; that it was well known on the day of sale, that Winn had his matters so arranged as to have all his property bought in for him, and the sale was a fraud, &c.; Foster did not pay the purchase money to the sheriff; since the purchase of Foster, Winn retained the property, rented the lands, and received the rents with the consent of Foster; though to the world he gave the possession to Foster, Foster now holds said lands for the use of Winn, and to defraud Winn’s creditors; the sale was conceived and executed in fraud, by the combination of Simmons, Foster, Winn, &c.
    The bill prays that the deed to Foster for lots eighty and one hundred and one may be declared null and void, and complainant be put in possession, &c.
    Winn was not served with process; publication was made, and a pro confesso taken against him.
    Simmons answered that he had such a judgment as is described: he was informed he could trade such judgment to George Wilson; he went to Leake, and was informed that one Parker was indebted to George Wilson, to whom he might trade the said judgment; that he saw Wilson and Parker at their house, and made a trade; Parker acknowledged he was indebted to Wilson; he brought three negroes, and transferred the judgment to Wilson, by Wilson’s agreeing to pay Foster his fees; afterwards Foster assented to it, and gave Simmons a receipt against his claim; does not know of his own knowledge what became of the judgment afterwards; all he ever received from Winn on this judgment was three mules, at $325, for which he gave Winn credit; denies any fraud or agreement with Winn or any person else, to defraud Winn’s creditors.
    Foster in his answer says, he did on 2d March, 1840, buy lots eighty and one hundred and one, as set forth in the bill, and received a deed, &c.; does not recollect whether he was present at the sale at which complainant purchased, nor whether he forbade the sale; nor does he deem it material. Does not believe Winn had control of said judgment or owned it, or if he did, he was ignorant of it at the time of his purpose. Believes the execution belonged to George Wilson at the time of sale; he was the attorney of record in the judgment, and it was not necessary for him to pay the purchase money to the sheriff. Denies any agreement between him and Winn, before the sale, to pay back the purchase money of the lots; that they were purchased by him, and are still held by him for his own use, nor was there any contrivance or combination to defraud complainant or any other person.
    
      Dominick Barrett testified, that he knows something of the purchase of the west half of lots thirty-one and fourteen, in Kosciusko, by John F. Short, by being told by Winn, Foster, and Short,' the defendants. His office was on thirty-one at the time Winn first told him he had sold the lot to Short. After-wards said it was sold to Short, without saying who sold it; and that he (Winn) was to receive payment in cattle, and named the price of lots thirty-one and fourteen, but witness does not recollect what it was; Short afterwards told witness he had bought the lots, and wished witness to rent the property for him. Some time afterwards Winn and others brought cattle through town, which Winn told witness he had from Short in payment for said lots; Winn was on his way to Arkansas, and witness is certain Winn told him he had bought them to take to Arkansas; has heard the same in substance from Short. In these conversations they made occasional reference to Foster, in relation to the titles, but witness did not pay much attention, knowing Foster had purchased at execution sale. Witness applied to Winn for the use of the house on said lots. He spoke of witness’s paying rent; witness refused to pay rent, and Winn then referred witness to defendant Foster. He first asked witness if he had spoken to Winn concerning the house; witness informed him he had ; he then gave witness permission to use the house; this was in June or July, 1841. The negro woman Nancy and her child, and a negro boy named Isaac, and several horses and oxen and wagon, were sold at execution sale as the property of Winn; bid off by Foster, and continued in possession of Winn, up to the time he removed from this state, and were carried off by him; a part or all of this property was carried off by Winn shortly after the sale of said lots by Winn to Short, and, as he told witness, to Arkansas, where he lived when witness last saw him, last fall or winter. Foster left Kosciusko in 1843, and told witness he was going to settle in Georgia; witness had since received letters from him, dated Columbus, Georgia, in which he informed him he had settled there.
    Richard Henry testified, that in March, 1840, negro woman Nancy, child Elizabeth, boy Isaac, and several horses .were sold by the sheriff as the property of the defendant, Winn; they were bid off by Foster; were all sent out to Winn’s, and remained in his possession until he removed to Arkansas, when he took said property with him, together with a boy George, also1 claimed by Foster, and which Foster had brought from Georgia. Foster was boarding at 'Winn’s, making that his home before and after the sale; when Winn left this country, he left none of said property in possession of Foster.
    Robert M. Cade, sheriff, testifies that, as well as he recollects, lot eighty, and ten and a half of lots thirty-one and fourteen were sold together; the negroes were all sold in one lot; the horses, he believes, were sold separately; the oxen were sold separate from the wagon; the bed and bedding sold separate; hogs sold in one lot; corn sold by lot, and so much per bushel; sheep sold separately; the hogs, corn and sheep were not present, but sold by consent of Winn. After the levy on said property, it was all left in possession of defendant, Winn, by the consent of Foster, and delivered to witness on the day of sale by Winn; all the personal property was carried back to Winn’s house after the sale; Winn was present at the sale, and made no objection to the manner of selling; negro Nancy was twenty or twenty-five years old, child eighteen months or two years, boy Isaac from twelve to sixteen years; all had the appearance of being sound, healthy, and good looking; Isaac was no relation of Nancy. Lots thirty-one and fourteen adjoin, but lot eighty is on the opposite side of the square; Winn had not property enough at the 'time to pay the executions against him; when Winn left the state, he carried all this personal property with him. Does not think George Wilson was present on the day of sale; Foster did all the bidding; Winn exercised acts of ownership over, and controlled the personal property until he left the state, kind claimed rent from the real.
    Robert Huntington testifies, that at the sale under Simmons’s execution he understood and believed, and still believes, that all of Winn’s property, real and personal, was sold and bid in principally by Foster; the personal was all carried back to Winn’s house, where Foster boarded. Does not know any acts of ownership to lots eighty, and ten and a half of thirty-one and fourteen, either by Winn or Foster after the sale, except that Foster claimed an undivided half of lot one hundred and one; does not know whether said claim was before or after April, 1843. Winn was decidedly insolvent in January, 1840. Is not aware that James Wilson owned any property, and if he had any, it was from the bounty of his brother.
    Austin W. Harvey testifies, that the negro woman and child, at the time of sale, was worth 8650, and the boy, as described, worth $500.
    On cross-examination stated, that he knew that in September, 1841, John T. Short carried about one hundred and fifty head of cattle to the state of Arkansas; thinks they were Short’s cattle. Sold him a part of said stock; started with about $ 500, and got back with about twenty dollars in about six weeks.
    A. G. Anderson testifies as to the value of the slaves.
    James A. Groves, defendant’s witness, testifies, that he has, as agent for Adam Foster, rented out lot eighty nearly the whole of last year, (1845,) collected the rent, and, as such, sold lot eighty and one hundred and one, received the money, and sent part to Foster in Georgia, and applied the balance according to his instructions, and that no part has been paid to Winn.
    Andrew Adkinson, for defendants, testifies, that in 1840 or 1841, he hauled cotton for Foster from a place called Slandard’s Place; saw the negroes that had been Winn’s, and bought by Foster at execution sale, and a boy brought here by Foster; Foster paid him for hauling the cotton, and spoke of it as his own. He sold Short two cattle, and he got another from his house to carry to the west, and three for Winn, which they drove to Short’s, who said they were going to take them west of the Mississippi; thinks this was in the summer of 1840.
    J. L. C. Flowers, for defendants, testifies, that he knew of John T. Short driving cattle to Arkansas; they were in his mark and branded with his name, and he exercised acts of ownership over a portion of them. On proposing to Winn to mortgage some of his property, viz. negroes Nancy and Isaac, he said they were not his property; said proposition was made to raise money to speculate on in 1843, some time during the fall; this was in Arkansas; never heard Foster say any thing about it. Winn and witness came here in the fall of 1842; Foster returned with them to Arkansas; the second visit was in 1843. In June, 1843, Foster took George away from Winn’s possession, and carried him to Georgia, as he understood.
    On cross-examination, he stated, that Short sold the cattle to Winn the same fall he left here; all the property Winn carried from here is now in his possession in Arkansas, except the boy George aforesaid. Foster has never made but the two visits to Arkansas to his knowledge; witness left Winn’s in Arkansas on 1st September, 1845; witness understood from Short and Winn, that Winn paid Short for the cattle (in whole or part) with a house and lot in Kosciusko, Mississippi; it was the house on the north of the public square, standing (as appears by reference to the map of said town) on lot thirty-one, as witness understood.
    On this proof, the court below decreed in favor of the complainant, and the defendants appealed.
    
      Charles Scott, and James A. Graves, for appellant,
    Cited Freem. Ch. Rep. 458 ; 3 Madd. Rep. 232 ; 7 Ves. 30; Freem. Ch. Rep. 105; 3 Johns. Dig. 396; 4 Cow. 461; 5 lb. 390; 3 Ves. 4; 1 Madd. Ch. 225, 226; Fonbl. Eq. 127, n. d; 5 Ves. 845; 2 Johns. Ch. Rep. 23; 4 Dess. Ch. Rep. 687; 2 lb. 636, 639; 3 lb. 292; 3 Cow. 445.
    
      W. E. Pugh, in proper person,
    Cited 6 Monr. 23 ; 7 lb. 845; 1 Pet. 449; 2 Munf. 341; 5 Rand. 211; 4 Leigh, 535; 2 Bibb, 67, 69; 3 Monr. 187; 3 A. K. Marsh. 6; 4 J. J. Marsh. 89; 3 Wend. 61S; 1 Freem. 43.
   Per Curiam..

This bill was filed in the circuit court of Attala county by W. E. Pugh, to vacate a sale made by the sheriff of two lots in the town of Kosciusko, and to have the deed delivered up to be cancelled.

It is alleged that on the 27th of March, 1839, John S. Simmons recovered a judgment against James R. Winn et al.; that .execution issued which was levied on the two lots in question, and also on certain personal property; that at the sheriff’s sale Foster purchased one lot for $5, and the other for $10, and was also the purchaser of most of the other property; that this sale was made for the benefit of Winn, or to shield his property from his creditors; that Winn was permitted to control the execution for that purpose; that Foster paid nothing, or, if he did, it Avas either the money of Winn, or the amount has been settled by Winn since the sale, and that if the execution creditor received the amount of the bids, it was paid to him by Winn, who has exercised acts of ownership over the property since by renting it.

It seems that in 1841, Pugh and Hunter recovered two judgments against Winn, and had their execution levied on the two lots, which were sold on the 11th of April, 1842, when Pugh became the purchaser, and also received a deed.

It appears that Foster was the attorney who recovered the judgment for Simmons, and that Simmons afterwards transferred the judgment to Wilson, who should' have been a party to this suit.

At the time the lots in controversy Avere sold, two others were also sold, as well as personal property. In regard to the personal property, it seems that Winn continued in possession, and took it from the state with him; but in regard to the lots, the acts of oAvnership by Winn are not so well established. One witness says, that after the sheriff’s sale he heard Winn say he had sold lot thirty-one to Short, and Avas to receive payment in cattle, and he afterwards saAV Winn with cattle, said to have been received of Short. ■ He had heard conversations between Winn and Short in regard to the sale of the lot, in which occasional allusions were made to Foster in relation to title. The witness had applied to Winn for the use of the house on this lot, who spoke of charging him rent, and referred him to Foster, who, when applied to, asked the witness if he had spoken to Winn on the subject, and on being answered in the affirmative, gave the witness permission to occupy it. Winn had also claimed rent of this same Avitness, as the administrator of the former tenant, up to the 1st of May, which was after the sale. Cade, another witness, says that he knows of no act of ownership by Winn, except that he claimed rent after the sale. The other witnesses do not speak of Winn’s exercising acts of ownership over the lots, the most of the testimony having reference only to the personal property. It does not appear that Winn continued in possession of the lots, or that Foster was ever present at conversations in reference to them; or ever acknowledged or admit-' ted a right in Winn, further than is above stated. Groves, the agent of Foster, says that he has rented the lot eighty for Foster since he left the state, and has sold both, (eighty and one hundred and one,) and received the money for Foster.

The proof that Winn retained possession of the personal property was intended to establish fraud as to that, and thus to raise the presumption of fraud as to the lots also. But there is a distinction between public and private sales. In the case of Garland v. Chambers, 11 S. & M. 337, we held that it was not prima facie evidence of fraud to permit personal property, which had been purchased under a deed of trust, to remain in possession of the former owner. The circumstance of Winn’s subsequent possession of the personal property, is not evidence of fraud as regards the lots. The proof is rather unsatisfactory as to any act with regard to the lots that would certainly indicate fraud. The claiming of rent is not such an act, because the sheriff, in selling land, does not give possession. But there is an absence of proof as to any act of- Foster’s that would prove fraud; he never recognized Winn’s pretensions or claim of ownership, and has since sold the lots. True, the price for which he purchased was small, but the value of the lots is ■not shown. Besides, mere inadequacy of price is not necessarily evidence of fraud. Yery gross inadequacy may be so under certain circumstances. Nor was it evidence of fraud, that Foster did not pay the money bid by him. He was the attorney' who had recovered the judgment, and his client does not complain. If Wilson, the owner of the judgment, had been made a party, he could have stated whether as to him the sale was fraudulent. Whilst it is true that there are some circumstances calculated to excite suspicions, that there was some understanding between Foster and Winn, yet the proof is not sufficient to justify us in declaring the sale void. There may have been an understanding between them, and still the sale may have been valid. There is no proof of unfairness in the sale by an effort to keep off bidders, or to make the property sell at a low price. It is possible that a jury might find differently. There is a remedy at law, if the party should choose to pursue it, when the question of fraud can be better investigated. We, therefore, reverse the decree, and dismiss the bill without prejudice to the remedy at law..

Decree reversed, and bill dismissed.  