# Cabell v. Board of Improvement of Improvement District No. 10 > Supreme Court of Arkansas · May 15, 1916 · 124 Ark. 278 URL: https://www.frixlaw.com/law-library/cases/7808295 ## Case - **Full name:** Cabell v. Board of Improvement of Improvement District No. 10, of Texarkana - **Court:** Supreme Court of Arkansas - **Decided:** May 15, 1916 - **Citations:** 124 Ark. 278 - **Precedential status:** Published - **Opinion:** Dissent by McCulloch - **Judges:** Hart, Here, Kirby, McCulloch, Pressed - **Cited by:** 4 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7808295 ## Opinion text McCulloch, C. J., dissenting. The question of the right of an attorney to purchase at a judicial sale as against the interests of his clients must not be confused with the questioninvolved on this appeal. It is too well settled for further controversy, that an attorney owes the highest duty to his client, and can not, as against the interests of his client, purchase at a judicial .sale in which his client is interested. In the present case the client of the attorney who purchased does not complain, and we have only the question of the right of the adversary to object to the sale on account of the purchase by the attorney who represented the plaintiff in the foreclosure proceedings. The writer asserts with the utmost confidence that no case can be found sustaining the views of the majority except the one case of Rogers v. Whitman, decided by the Supreme Court of Washington. That decision is entirely without harmony with the settled principles which should control, and it should not be followed. The opinion in the case cites a number of cases which did not in the slightest degree support it. Among others it cites decisions of this court which merely 'hold that the attorney of a party who has a duty to discharge with respect to a judicial sale can not become the purchaser. There is another case cited as sustaining this view (Busey v. Hardin, 2 B. Munroe, Kentucky, 407), but an examination of the opinion in that case shows that it has little bearing upon the question no w before us, or which was before the Washington court. In that case there had been a judicial sale, at which the solicitor, for the plaintiff purchased the property, and there was an objection to confirmation on numerous grounds, among others that the price at which the property was sold was grossly inadequate. The objection was made by the original owner, who tendered to the purchaser the amount of his bid, which was sufficient to discharge, the lien against the property, and the court decided that in consideration of all the circumstances, the inadequacy of the price, the conduct of the solicitor, and other circumstances pertaining to the sale, that confirmation should be denied. All that was said in the opinion in that case which appears to sustain the view of the majority, is that the fact that the purchase was made by the attorney, has been, in some quarters, deemed sufficient to vitiate a sale as being “against the policy of justice.’,’ The learned court doubtless had in mind the English' and Canadian ■rule, which is that an attorney for either party may not purchase without permission of the court. That rule has, however, never obtained in this court, or in any other of the American courts. “In the United States the rule is that property, offered at judicial sale may be purchased by either party to the suit in which such sale was ordered, or by the attorney for either party. But in England and Canada there are numerous cases holding that neither the parties nor their attorneys can become purchasers without having previously obtained permission of the court to bid at such sale. This rule is, however, probably due to the fact that at one time it was customary to give the conduct of the sale to one of the parties, or to his attorney, in which case it would be eminently improper for one person to combine the two characters ' of buyer and seller. ’’ 17 Am. & Eng. Ency. of Law 963. The rule stated above is the one that is recognized in all of the American decisions with regard to judicial sales under foreclosure of lien. All of the authorities are to the effect that where the sale is made by order of the court, the lienor or his attorney may purchase. 1 Wiltsie.on Mortgage Foreclosure, sections 609-610; Freeman on'Void Judicial Sales, section 33. The test as to the right of a litigant or attorney to purchase at a judicial sale is whether or not he has any duty to discharge with respect to the sale itself. Now, the statutes of this State may be examined without finding the slightest imposition of a duty upon an attorney for an improvement district concerning the sale of the property upon foreclosure of the lien for assessment. The proceedings are like other chancery proceedings in rem, and the court ordering a foreclosure appoints a commissioner to make the sale. The attorney has no duty to discharge with respect thereto. Whatever may be the duty of the attorney in instituting the action for the improvement district, the proceeding is an adversary one and the attorney does not act in any fiduciary capacity towards the defendants in the proceedings, who are like other persons that are sued and must look after their own interests. In addition to that, it affirmatively appears that the permission of the court for the purchase to be made by the attorney was obtained, and when these facts were brought to the attention of the court the sale was confirmed. The loss by appellants of their property works a hardship on them, but it resulted from their own failure to pay the assessments and I am unwilling to wreck the settled principles of law for the purpose of protecting them. Mr. Justice Kirby concurs in the views here ex- • pressed. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7808295. Public record. Not legal advice.