The opinion of the Court was by
Shepley J.Both parties claim the property under William R. Rogers; the defendants as purchasers by a bill of sale executed on the 14th of January, 1837, and the plaintiff by'an. attachment made by him as a deputy sheriff on several writs on' the 16th of the same month. It appears from the testimony, that the property was on the land or within buildings belonging to the defendants, and that after the bill of sale Rogers no longer had possession, or control of the lands or buildings, but that they were within the exclusive control of the defendants or their'agent. The sale was therefore complete before the attachment, and the formal delivery or marking on subsequent days was unnecessary. Carrington v. Smith, 8 Pick. 419. Their title would be good if the sale was bona fide and for a valuable consideration. This was denied and the plaintiff called Rogers as a witness, and he being objected to was permitted to testify, that the design in making the bill of sale was to prevent an attachment of the property by his creditors. Rogers, having on the 24th of March preceding entered into a contract to build a dam and mills for the defendants, had proceeded to accomplish the undertaking, and had received advances earlier and beyond the amount due, and made the bill of sale of the materials provided, as the defendants allege, to secure them for such advances. The position of the witness was like that of a vendor of personal property, who having received his payfor.it, testifies to a fraud between himself and the vendee, and thereby enables his own creditors to apply the property to the payment of his debts, thus securing to himself the benefit of it twice. It is said, that his. interest is still balanced because he thereby incurs a new liability to the vendee, who may recover of him on the contract of sale the value of the property. In the case of Bailey v. Foster, 9 *237Pick. 139, it was decided, that one thus situated would not be a competent witness for the purpose of proving the fraud. The decision appears to rest upon the position that the vendor having received payment, and testifying in such a manner as to enable his creditor to apply the property to the payment of his debts, obtains the value twice; without noticing that he would thereby incur a liability to refund to the vendee. In the case of Rea v. Smith, 19 Wend. 293, it is admitted, that such liability would arise, but it is denied that he would be a competent witness, because it is said the vendee could not recover against him on the contract of sale for two reasons; 1. Because his title would not be destroyed by one paramount and so the case would not come within the warranty; and 2d, Because to make out his case against the vendor he must necessarily prove a fraud in both the parties to the contract and thereby place himself in pari delicto. When a creditor recovers against the vendee, he does so because the law regards him as having the better title. And the vendee loses his title through the fault of the vendor in neglecting to pay his debt and thereby extinguishing the creditor’s prior right to have the property applied in payment of it. It is nof clearly perceived why the creditor’s should not be regarded as the paramount title; or why the vendor, who has caused the title of the vendee to be defeated, has not by that act violated his contract assuring the title to the vendee. If this be the true position of the parlies, the first objection would prove insufficient to prevent a recovery. The second objection is to be examined. The statute of 13 Eliz. ch. 5, from which we derive our law respecting conveyances fraudulent as against creditors, provides, that only against creditors and others whose actions shall thereby be defrauded or delayed, they shall be of none effect; leaving them impliedly valid as respects the parties to them. The case of Hawes v. Leader, Cro. Jac. 270, S. C. Yel. 196, decided that the deed remained good against the parties, though void as to creditors. And this was recognized as a correct exposition of the statute in the case of Osborne v. Moss, 7 Johns. R. 161. In Drinkwater v. Drinkwater, 4 Mass. R. 357, Parsons C. J. says, “ a conveyance to defraud creditors is good against the grantor and his heirs and is void only as to creditors. For neither the grantor nor his heirs claiming under him can avail them-*238selves of any fraud to which the grantor was a party to defeat any conveyance made by him. The intention of the law in establishing this principle is effectually to prevent frauds by refusing to relieve any man or his heirs from the consequences of his own fraudulent act.” In Randall v. Phillips, 3 Mason, 388, Mr. Justice Story, speaking of such a conveyance, says, “ it is good as between the parties, and binds them and their privies. It may be avoided by any third persons, whose interests are intended to be defeated by it, but it is not absolutely void. The general doctrine .is, that a conveyance in fraud of the law binds parties, and cannot be acted upon, so far as respects them as a nullity.” According to these authorities the conveyance remaining good and. binding upon the parties to it, they cannot set up the fraud upon creditors against each other, and the doctrine in pari delicto, does not apply; and the vendee losing his title by the acts of the vendor may recover against him. The vendor therefore may be a witness as well to defeat as to sustain the conveyance, his interest being a balanced one in either case.
To constitute an attachment, it is not necessary, that the officer should handle the goods attached, but he must be in view of them with the power of controlling them and of taking them into his possession. And in case of an attempt by another to interpose or take possession, he should take such measures as to prevent it, unless resisted.
The return of an officer where he is a party is prima facie evidence, and only so, of an attachment. Bruce v. Holden, 21 Pick. 187; Sias v. Badger, 6 N. H. R. 393.
To preserve an attachment when made, the officer must by himself or his agent retain his control and power of taking immediate possession in all those cases in which the property is capable of being taken into actual possession, unless our statute establishes, as it does in certain cases, a different rule. If he does not do this, the attachment will be regarded as abandoned and dissolved. Sanderson v. Edwards, 16 Pick. 144.
The application of these principles to- the present case, as now presented by the testimony, would decide that the attachment might he ..sufficient, if followed by the continual presence of the officer or .of some .one on his behalf. There is no evidence of any contin*239ued control or of any attempt to retain it, unless Wheeler can be considered as undertaking to act for the officer. The mere request to Wheeler to give notice would not be sufficient unless he consented to assume the trust of taking charge of the goods for the officer. His acts and declarations taken together place him in a position so equivocal, that the jury should decide whether he did consent to act for the officer, and if so to what extent he did so act and continue the officer’s control over the property. There can be no doubt, that he ceased to have any such connexion with it as would preserve the attachment after the 4th of February following. If the defendants had not interfered against the rights of-the officer or his keeper before that day, the plaintiff cannot recover. And so far as they had before that time resisted and taken from his or his keeper’s control any of the property, to such extent he may recover. It becomes therefore proper to examine their acts in relation to the property after the attachment. An attachment does not deprive the debtor of the right to convey his property subject to it, and any merely formal act of delivery, which does not resist or deprive the officer of the actual control of it, is no violation of his rights, and will not subject the purchaser to an action by the officer. It does not occasion any injury or deprive him of any right. Bigelow v. Willson, 1 Pick. 492. Nor would the continued operations of the mechanics upon the property, if not objected to by the officer or his keeper, be considered as a trespass against him. But any act whatever, which deprived the officer or his keeper of the control or removed any portion of the property from the place where he chose to have it deposited, would subject them to an action for such property.
The principle that fraud is not to be presumed and that the bur-then of proof to establish it is upon the party alleging it, was recognized by the Court in the ease of Blaisdell v. Cowell, 14 Maine R. 370.
It is not perceived, that the Court can properly come to any more definite conclusion upon the rights of the parties without the assistance of a jury, to which the matters of fact must again be submitted.
Verdict set aside and a new trial granted.