Redwine

In an action to foreclose a mortgage on real estate, prosecuted by J. W. Swales against Joseph Burns, judgment was entered in favor of the former against the latter for $3,927.90 and the appellant herein was appointed commissioner fo sell the mortgaged property. December 13, 1924, the commissioner duly offered the property for sale at public auction. Hale McCowen, Jr., one of the attorneys for the plaintiff in the foreclosure proceeding, became the highest bidder and the commissioner thereupon publicly announced that the property was sold to McCowen. It is not claimed that McCowen purchased the property for his client, but the answer alleges “that respondent sold each of said lots or parcels to said Hale McCowen, Jr., on the personal credit of said Hale McCowen, Jr., and upon his promise and assurance that he would pay the purchase price on demand.” McCowen has at all times refused to pay the amount of his bid for the property and no certificate of sale has been issued to him or to any other person and no return of sale has been made.

December 15, 1924, Keith C. Eversole purchased the mortgaged lands from Burns. On the same day Eversole tendered to the commissioner $231.24, the…