Adkinson v. Randle , 93 Ky. 310 ( 1892 )

JUDGE PRYOR

delivered the opinion op the court.

While the defense interposed to prevent a judgment must be regarded as purely technical, in our opinion the sale should have been set aside. The commissioner making the sale was the attorney for the plaintiff, and as •such obtained the judgment under which the sale was made. By an act of the Legislature, approved January 12, 1878, it is made “unlawful for any master commissioner of any court of the Commonwealth to act as such counsel in any case in which he is or shall become interested as attorney or otherwise.” (General Statutes, chap. 75, p. 942.)

While the attorney for the plaintiff in this case may not have been the master commissioner of the court, still he was made the commissioner in this particular case, and the special meaning of the statute must necessarily be held to embrace both the regular and special commissioners. The enactment was intended to prevent those who are the partisans of one of the litigants, by reason of being an attorney or otherwise pecuniarily interested, from taking charge of the ease after judgment or before, where he necessarily, for the time being, is not under the control of the court, but must act on his own judgment. He is presumed to be looking more to the-interest of his client than that of his adversary, and, therefore, this enactment prohibiting him from acting as commissioner. We do not adjudge such a sale void, because if the purchaser alone were seeking to avoid the purchase we would compel him to abide by the sale; but where the vendee of the land, by proof on his exceptions, shows that the land has sold for less than its value and that the sale was made by the attorney prosecuting the case to a judgment, this court will set the sale aside.

There has been no improper conduct shown on the part of the attorney who acted as commissioner, but on the contrary he acted in good faith; still there is testimony showing the land sold for less than its real value, and having been sold by the attorney as commissioner this court, however properly the attorney may have acted, will set the sale aside.

It is said that after the attorney discovered he was. made commissioner by the judgment he renounced his employment as attorney and proceeded to act from that time on as commissioner only. This does not cure the evil intended to be remedied by tbe statute, for if one can act as attorney until be is appointed commissioner and tben take charge of tbe case as commissioner, tbe very purpose of the statute would be defeated; and while there is not tbe least blame of unfair dealing with the-defendant by tbe attorney for tbe plaintiff, tbe statute-must be regarded; and tbe only serious question in tbe case is, whether or not tbe mere fact of tbe sale by the-attorney is not sufficient to invalidate it on tbe motion of tbe debtor, although no injury has resulted from it.

Judgment reversed with directions to set tbe sale aside and order a re-sale of tbe land.