being expressly declared by the former that, as against creditors, the conveyance is utterly void; but the decision of the chancellor in Roberts v. Anderson was reversed in the Court of Errors, S. C., 18 Johnson, 515; and the distinction, though it may still exist in Connecticut where the statute is peculiar, and possibly in North Carolina, is exploded in New York and everywhere else.(1) If a grantor make two voluntary conveyances, and the second grantee convey for valuable consideration, his grantee will be a purchaser for valuable consideration, to avoid the former conveyance.(2) Indeed, it is a universal principle of equity and of common law, applicable alike to lands and chattels, that where a sale is fraudulent, legally or actually, against third persons only, a bona fide purchaser without notice is protected and has a valid title.(3) But one who purchases with notice, though for a valuable consideration, is not protected.(4) But where a conveyance, fraudulent upon its face as against creditors, is part of the chain of the purchaser's title, the purchaser must further have notice, actual or constructive, of the fact that there are creditors to be defrauded.(5) A purchaser with notice from one who purchased without notice may avail himself of his vendor's want of notice.(6) The burden of proving a valuable consideration is upon the purchaser, when proof of that fact becomes necessary to his protection against either creditors or subsequent purchasers,(7) or when he seeks to avoid a previous voluntary conveyance; and the acknowledgment of consideration in the deed, is said in Clapp v. Tirrell, 20 Pickering, 247, to be admissible prima facie evidence, though of the lowest kind *54] *but, in truth, as, in such cases, the persons to be affected by the evidence, claim by a paramount right, it is no evidence at all, not even prima facie.(8)

Equity has concurrent jurisdiction with law, in regard to frauds under

(1) Ledyard v. Butler, 9 Paige, 132, 136; Bean v. Smith, 2 Mason, 252; Wood v. Mann et al., 1 Sumner, 507, 509; Somes v. Brewer, 2 Pickering, 184, 198; Rowley v. Bigelow, 12 Id. 307, 312; Oriental Bank v. Haskins, 3 Metcalf, 332, 339; Green . Tanner and others, 8 Id. 411, 421; Hood v. Fahnestock, 8 Watts, 489, 492; Mateer v. Hissim; 3 Pennsylvania, 160, 164; Neal v. Williams, 18 Maine, 391; Gordon v. Haywood, 2 New Hampshire, 402; Myers et al. v. Sauder's Heirs, 7 Dana, 506, 511; Wineland v. Coonce, 5 Missouri, 296, 300; note to Hopkirk v. Randolph et al., 2 Brockenbrough, 152, 153; Reed v. Smith, 14 Alabama, 380, 386.

(2) Lessee of Moffet v. Whittaker, Longfield and Townsend (Irish Exchequer), 141. (3) Thompson v. Lee, 3 Watts & Sergeant, 479; George v. Kimball, 24 Pickering, 234, 239; Neal v. Williams, 18 Maine, 391; Truluck and others v. Peeples and others, 3 Kelly, 446.

(4) Shaw and another v. Levy, 17 Sergeant & Rawle, 99, 102; Rogers v. Evans, 3 Indiana, 574.

(5) Johnston's Heirs v. Harvy, 2 Pennsylvania, 82, 92.

(6) Hagthorp et ux. et al. v. Hook's Adm'rs, 1 Gill & Johnson, 273, 301.

(7) Battle v. Jones, 2 Alabama, 314.

(8) Rogers v. Hall, 4 Watts, 359, 362; Kimball v. Fenner, 12 New Hampshire, 248, 251; Falkner v. Leith and Jones, 15 Alabama, 9, 14.

these statutes; and the construction of the statutes is the same in both courts.(1) There are two cases in which a creditor may go into equity to obtain satisfaction out of property fraudulently settled or conveyed; one, where the transaction has assumed such a form, or the property is of such a nature, that it was never subject to an execution at law, and in this case the remedy is only in chancery; (2) the other, where property legally liable to execution has been fraudulently conveyed or encumbered, for though the property might be sold on an execution at law against the debtor, yet equity will not require the creditor to sell a doubtful or obstructed title at law, but will set aside the conveyance.(3) [So when an execution at law has been returned no property, Burtch v. Elliott, 3 Porter, 100.] Where a demand is purely legal, the creditor cannot go into equity to obtain relief or satisfaction until his debt has been ascertained in a court of law (4) but if the demand be cognizable in equity in the first instance, as where the claim is purely equitable, or from the death, or death and insolvency of the debtor, has become subject to chancery jurisdiction, the debt may be proved and the property reached under the same proceeding;(5) and the remark in Russell v. Clark's Ex'rs, 7 Cranch, 89, that the fund's being equitable gives original jurisdiction to equity is to be understood of the case where the only fund existing is equitable, as in case of death and insolvency. But with regard to the extent to which a legal creditor must proceed at law, before he can claim the aid of a court of chancery, there is a difference, depending on the nature of the property which he seeks to charge; where lands or chattels of which the legal title was in the debtor, have been fraudulently conveyed, it is enough to have a judgment in the former case, and to issue an execution to the sheriff in the latter, because the application to chancery is to remove an obstruction which prevents a legal lien from operating upon the property, but where it is desired to reach equitable assets it is necessary to have the execution levied and returned unsatisfied, or something equivalent to that, because chancery

(1) Hopkirk v. Randolph et al., 2 Brockenbrough, 133, 139.

(2) Botsford v. Beers, 11 Connecticut, 370; Weed v. Pierce, 9 Cowen, 722.

(3) Lillard v. McGee, 4 Bibb, 163; Dodge v. Griswold, 8 New Hampshire, 425; Trippe, & Slade and others v. Lowe's Adm'r and others, 2 Kelly, 304; Thurmond and others v. Reese, 3 Id. 449; Dargan v. Waring et al., 11 Alabama, 989, 993; Buck v. Sherman, 2 Douglass, 177, 180.

(4) Wiggins v. Armstrong, 2 Johnson's Chancery, 144; Greenwood v. Brodhead, 8 Barbour's S. Ct., 593; Hafner v. Irwin, 4 Iredell's Law, 529; Donaldson v. The Bank of Cape Fear, 1 Devereux's Equity, 103, 107; McKinley, &c., v. Combs, &c., 1 Monroe, 105, 106; Allen & Ward v. Camp & Gray, Id. 231, 232; Woods v. McGavock, 10 Yerger, 133, 137; Chester et al. v. Greer et al., 5 Humphreys, 26, 35; Williams et al. v. Tipton et al., Id. 66.

(5) Halbert, &c., v. Grant, 4 Monroe, 580, 583; Thompson v. Brown, 4 Johnson's Chancery, 620, 631; O'Brien v. Coulter, 2 Blackford, 421, 423; Lynch v. Raleigh, 3 Indiana, 274.

does not let a creditor in upon that fund until the legal assets appear to be exhausted;(1) but where legal assets have been fraudu*55] lently conveyed, a creditor is entitled to set the conveyance aside in equity without showing that there is no property retained by the debtor from which satisfaction might be had; (2) perhaps if the conveyance were merely voluntary and without fraud, it might be otherwise, as was held in Eigleberger and others v. Kibler, 1 Hill's Chancery, 113, though probably the only exception would be where the consideration is a meritorious one, as a settlement on a wife or child. A creditor may file a bill in his own name and for his sole benefit, or with others for their common benefit, or in behalf of himself and all others who may be entitled and may choose to come in; if he proceeds on his own account alone, and no lien has been gained, or can be acquired, at law, he acquires a specific lien by filing the bill, and is entitled to priority over other creditors ;(3) but no specific lien is acquired upon equitable assets, but from the filing of the bill.(4) Several judgment creditors may unite in one bill against their common debtor and his grantees to avoid fraudulent transfers, though they take by separate conveyances, and no joint fraud is charged.(5)

In equity a voluntary donee without fraud, is not responsible for the property, or the value of it, if he has sold or restored it, or it has accidentally been destroyed before the filing of the bill, because the right of the creditor is not to have an account taken of the property, and for its use, but only to proceed against the property in the hands of the donee ;(6) nor for profits or losses upon it prior to such time;(7) but only as it was at the filing of the bill and profits from that time; or, where the

(1) Beck v. Burdett, 1 Paige, 308; McElwain v. Willis, 9 Wendell, 548; Mer. & Mech. Bank v. Griffith, 10 Paige, 519; Storm v. Waddell, 2 Sanford's Chancery, 495, 510; Brown et al. v. Long et al., Iredell's Equity, 190; McNairy v. Eastland, 10 Yerger, 310, 319; Screven v. Bostick, 2 McCord's Chancery, 410, 416; Perry v. Nixon, 1 Hill's Chancery, 335; Roper v. McCook, and Robertson's Adı’r, 7 Alabama, 319, 324; Stone et al. v. Manning, 2 Scammon, 531, 534; Manchester et al. v. McKee's Ex'r, 4 Gilman, 511, 515; Miller et al. v. Davidson, 3 Id. 518, 522; Reese & Heylin v. Bradford et al., 13 Alabama, 838, 845; Dargan v. Waring et al., 11 Alabama, 989, 994; Webster v. Clark, 25 Maine, 313, 315; Same v. Withey, Id. 326, 329; Tappan v. Evans, 11 New Hampshire, 312, 327. (2) Botsford v. Beers, 11 Connecticut, 370, 375; Thurmond and others v. Reese, 3 Kelly, 449; Stephens v. Beal, 4 Georgia, 319.

(3) Edmeston v. Lyde, 1 Paige, 637; Corning v. White, 2 Id. 567; Farnham v. Campbell, 10 Id. 598, 601; Weed v. Pierce, 9 Cowen, 722, 728; U. S. Bank v. Burke, 4 Blackford, 141, 145; Miers & Coulson v. The Zanesville and Maysville Turnpike Co., 13 Ohio,

197.

(4) Blake v. Bigelow and others, 5 Georgia, 437, 439.

(5) Donelson's Adm'rs v. Posey et al., 13 Alabama, 752, 762.

(6) Swift & Nichols v. Holdridge and others, 10 Ohio, 230; Simpson v. Simpson et als.,

7 Humphreys, 275, 277; Tubb . Williams et al., Id. 367, 371.

(7) Blackhouse's Administrators v. Jett's Administrators et al., 1 Brockenbrough, 501, 510, 515.

debtor has taken the benefit of the insolvent laws or become bankrupt, from the time of the application or bankruptcy;(1) because the conveyance was perfectly good and the property belonged entirely to the grantee, until the rights of creditors attached upon it.(2) But where there has been actual fraud, any one holding mala fide is accountable for rents and profits from the time that he came into possession.(3) As to the personal liability of the fraudulent grantee of a chattel who has sold it or does not produce it, see Halbert, &c., v. Grant, 4 Monroe, 580, 588, 591.

A voluntary assignment by an insolvent, in trust for his creditors, which contains no provisions tending fraudulently to hinder and delay them, is valid: but the reservation of any benefit or advantage to the debtor renders the assignment fraudulent and void. An assignment by partners of the partnership effects, and not of their separate property also, if it contain a condition that the creditors shall release their claims against the assignors, individually, and as copartners, is fraudulent and void.

THIS was an appeal by Joseph S. Sloan, assignee of Jenks & Company, from the decision of the Court of Common Pleas of Bucks County, awarding to the plaintiffs the money in the hands of the sheriff, made under execution against Jenks & Company.

By indenture, dated the seventh day of February, A. D. 1833, William P. Jenks and William Maris, trading as William P. Jenks & Co., made an assignment to Sloan, of all the machinery,

(1) Kipp v. Hanna, 2 Bland, 26, 36; Sands and others v. Codwise and others, 4 Johnson, 536, 600.

(2) Fripp v. Talbird, 1 Hill's Chancery, 142, 143.

(3) Strike v. McDonald & Son, 2 Harris & Gill, 193, 220, 224.

stock, goods, chattels, debts, moneys, effects, messuages, lands and tenements, book-debts, accounts, claims, and all other things whatsoever of the said William P. Jenks & Co., as well real as personal, in trust to pay creditors in the manner therein set forth.

The assignment contained the following proviso: provided always, nevertheless, that no creditor shall be entitled to any benefit under the assignment, who shall not, on or before the sixth day of March next, at 12 o'clock at noon on that day, in due form of law execute a full and sufficient release of and from their respective claims to the said William P. Jenks and William Maris, individually and as copartners. Fourthly, to restore and repay to the said William P. Jenks and William Maris, the residue of the estate and effects, or the proceeds thereof, remaining in the hands of the said Joseph S. Sloan, after payment and discharge *57] and indemnity of the aforesaid claims in the manner and order aforesaid.

Releases were accordingly signed by a number of the creditors on the fifth day of March, 1833.

On the 8th of April, 1833, Thomas Parry issued writs of fi. fa. On the eleventh day of April, 1833, the sheriff levied under the plaintiffs' executions on the property, the right to the proceeds of which was the subject of the present controversy.

Sloan issued a foreign attachment against William P. Jenks & Co., and directed the sheriff to attach the machinery included in the assignment.

Sharswood (J. R. Ingersoll was with him), for the appellant.

The first question is, whether an assignment of partnership property for the benefit of partnership creditors, and stipulating for a general release, is per se fraudulent? It is to be taken for granted, that this transaction was fair in fact, as nothing appears to the contrary. The right of a debtor in failing circumstances to prefer one creditor to another cannot now be doubted.(1) Nor can it be doubted that he may make a special assignment of part of his property for the benefit of particular creditors; nor is the mode of designation material. The case of Lewkner v. Freeman, Finch, 105, was a special assignment to pay scheduled debts and such other debts as the debtor within a certain time should appoint. The stipulation for a release has been recognized as

(1) Hendricks v. Robinson, 2 Johns. Ch. Rep. 283; Wilt v. Franklin, 1 Binney, 510.