dissenting. —When this case was under consideration before, I made some suggestions in a note, which the reporter published as a dissenting opinion. I still entertain the same views which I then somewhat imperfectly expressed.
The suit is by a mortgagee, against an officer, for taking the goods embraced in the mortgage, upon sundry writs against the mortgager. Upon the first trial, the mortgage was found by the jury to be fraudulent and void as against the creditors for whom the property was attached. But the officer, “ with the consent and assistance of the debtor,” who had possession of the goods at the time of the attachment, sold some of them at private sale. This would have rendered him liable as a trespasser ah initio, if the debtor had not given such consent. Did it, having been done with his consent, render the officer liable to the fraudulent mortgagee ?
The statute of Eliz., 13, c. 5, making fraudulent sales void, as against the creditors1 of the vendor, had its origin in the most obvious principles of justice and equity, and, from the first, has been construed liberally in favor of the object to be attained by it. Gooch’s case, 5 Coke, 60. As Lord Mansfield says in Cadogan v. Kennett, Cowp., 434, “ it cannot *32receive too liberal a construction, or be too much extended, in suppressing fraud.”
Fourteen years later, another Act was passed, making fraudulent conveyances void as to subsequent purchasers. The statute of 27 Eliz., c. 4, applied to sales of real estate only. The first statute applied to all fraudulent sales, whether of personal or real estate. All such sales, though valid and binding between the parties thereto, were declared to be utterly void as to creditors, and subsequent purchasers. And in those cases where creditors subsequently became purchasers, their rights have been sustained as well under the first Act as under the second.
The fact of fraud being admitted or established, it would seem that the law would afford the fraudulent vendee no aid, under any circumstances, against the creditors of the vendor. Such was the rule laid down in the case of Daggett v. Adams, 1 Maine, 198.
In one of the earliest cases under the statute, decided in the 43d year of Elizabeth, where the fraudulent vendor remained in possession until his death, after which the vendee took possession, he was held to be liable in trespass, to the administrator. Bethel v. Stanhope, Cro. Eliz., 810. This doctrine was denied in the case of Osborne v. Moss, 7 Johns., 161, where it was held that a creditor who took the goods, without suit, from a fraudulent vendee, was liable to him in trespass, notwithstanding the fraud. The case of Hawes v. Leader, Cro. Jac., 270, was cited by the Court; but it does not sustain the decision^ In the latter case, a similar action was sustained, by a fraudulent vendee, against the administrator of the vendor; but it was expressly upon the ground that the administrator did not plead that the estate was in debt, and, therefore represented, not the creditors, but the intestate. In a later case, the Supreme Court of New York questioned the soundness of the decision in Osborne v. Moss, and commended the rule laid down in Bethel v. Stanhope. Babcock v. Booth, 2 Hill, 181.
*33But, if we concede, when the fraudulent vendee is in actual possession, that the creditor can obtain the goods only by legal process, and a strict compliance with the provisions of the statute, it by no means follows that this is his only remedy when the goods remain in possession of the vendor. In such case, the creditor may take the goods by purchase from the vendor, or by any means to which he consents, without subjecting himself to any liability to the fraudulent vendee. There are no cases in which this is denied; while there are many in which it is assumed, or implied. Wadsworth v. Havens, 3 Wend., 411; Burrel’s case, 6 Coke, 72; Boyd v. Brown, 17 Pick., 453; Van Deusen v. Frink, 15 Pick., 449; Clapp v. Leatherbee, 18 Pick., 131. Some of these cases relate to conveyances of real estate. But they all, and many more that might be cited, assume the doctrine to be unquestioned, that, under the statute of 13 Elizabeth, the creditor of a fraudulent vendor or grantor may take the property from him by legal process, or, if he is in possession, by purchase. A seizure and sale on execution is a statute sale for the vendor. A voluntary sale by him, to his creditors, or by them, with his consent, and in payment of their demands, is a legal equivalent to a sale by process of law.
There is no difficulty in applying these principles to the case at bar. The defendant, as an officer, represented attaching creditors. Whatever he did, in the sale of the goods, that was irregular, and not in conformity to the provisions of the statute, he did with the consent of the debtor, who was in possession of the goods at the time of the attachment. This possession was explained; but the mortgage to the plaintiff was proved by other evidence to be fraudulent, so that it was like any other case of fraudulent sale without delivery, leaving the property liable to be taken by creditors, or subsequent purchasers. Ludwig v. Fuller, 17 Maine, 162. As to them, the mortgage was utterly void.
It is not unusual for debtors, when their property is attached, to waive the requirements of the statute in regard to the *34sale of it by the officer. In such cases, the sale is equally as valid as when the statute provisions are strictly complied with. In this case, it is expressly found that the debtor consented to the proceedings of the officer. It was competent for, him to give such consent. As to-the creditors, he was the owner. They were not bound to consult any one else. And the sale being valid as to him, because made with his consent, to hold that it rendered the agent of the creditors liable in trespass to a fraudulent vendee, who, as against them, had no legal title, is a conclusion to which I cannot assent.