dissenting. I concur with my associates in overruling the case of Daggett v. Adams. The principle there stated, so far as it applies to vendees in possession, cannot be sustained.
But I must dissent from the opinion in this case, because the plaintiff was not a vendee, in the usual sense of that term. He was only a mortgagee, who had not taken possession. His rights were not those of a purchaser. They rested in contract, merely. If that contract was void, he had no rights. As to the creditors of the mortgagor, the contract was void, and the mortgagor was the owner. If, as to the creditors, the mortgagor was the owner, it was competent for him to consent that the goods might be sold on mesne process, and at private sale. He gave such consent; and the sale so made by his consent was as valid as if it had been made at public auction, on the certificate of appraisers. And the plaintiff, if the mortgage to him was fraudulent as to creditors, was not injured by such sale. Ho had no claim to be consulted by them in regard to the sale. As to them, the mortgagor was the only party in interest. To allow the mortgagor to maintain this action, is to give the aid of the court in enforcing a fraudulent contract against the very parties as to whom the statute pronounces the contract void.
It is said that the defendant in trespass cannot justify by pleading property in another, without showing an interest in *280himself from such owner. And it is therefore argued that the defendant can justify only by showing an attachment and sale according to the provisions of law. This would have been so if the mortgagee had been in possession. But as he had never taken possession, it was otherwise. If a plaintiff in trespass was not in possession at the time of the taking, the defendant may plead property in another, without showing any interest in himself from such owner. 13 Johns., 276. If it were not so, he might be deprived of his defense, and still be liable to the true owner in another action. I am therefore of opinion that the rule laid down in the case of Daggett v. Adams is erroneous so far only as it applies to vendees, to whom the property has been actually delivered.