Carroll v. Draughon, 44 So. 553

Carroll v. Draughon

44 So. 553 | Ala. | 1907

ANDERSON, J.

“When property is sold under execution, or chancery decree, and the plaintiff becomes the purchaser, receiving title, if the judgment or decree be afterwards reversed, his title is left without ground or consideration to rest on, and it will he set aside and vacated. If, however, a stranger purchases and receives title, a subsequent reversal will not furnish ground for setting the sale aside, unless the judgment or decree under which the sale was made is void on its face, in contradiction to being merely erroneous and reversible. In *421the first case, ■ setting the sale aside simply restores the parties to their relative rights, held by them before the sale. In the latter case, to set aside the sale would leave the purchaser with his money expended, and nothing realized in its stead.” — Ive v. Stringfellow, 82 Ala. 547, 2 South. 22; Freeman on Judgments, §§ 482, 484; Marks v. Cowles, 61 Ala. 299; Freeman on Execution, § 345.

The bill avers that the respondent Dranghon was the next friend to the infant complainants in the proceeding, which resulted in the decree under which the sale was made, and at which he purchased. While the infants may have been the real parties to the decree, Dranghon was not a stranger to the suit, but was the real actor, and in effect stood in the shoes of the complainants, so far as purchasing at the sale, and cannot be such a bona fide purchaser as to render his title good, as against the owner, upon a reversal of the decree. This court has decided in the case of Phillips v. Benson, 85 Ala. 416, 5 South. 78, that an attorney of record of the plaintiff occupies no better position in purchasing, under a decree which was subsequently reversed, than his principal; and we see no reason why the same rule should not apply to the next friend. It may be true that the authority of a next Mend is not the same as that of an attorney. — Isaacs v. Boyd, 5 Port. 388; 14 Am. & Eng. Ency. Pl. & Pr. 998. But the next friend really directs and controls the attorney, and occupies a position that should render him familiar with every step in the litigation; and we see no good reason why he should be accorded greater protection, when purchasing at a sale under a decree rendered at his instance, than the infant complainants, or the attorney who conducted the litigation subject to his orders.

*422The chancellor erred in sustaining the motion to dismiss the bill for want of equity, and the decree is reversed, and one is here rendered overruling said motion.'

Reversed and rendered.

Tyson, O. J., and Haralson and Denson, JJ., concur.