*263Attachment, *262There is no question but that the first transaction — the sale of the firm property to Brock— was fraudulent. A scheme by which an indorser of a note of a failing firm for $850, given for goods 'recently purchased, is to be made whole by a purchase of all of the available assets of .the firm, worth some four or five thousand dollars, by a payment of the note, with the balance deferred nine and twelve months, is fraudulent as to creditors. It is such a disposition of the property of the firm as is, in law and in fact, intended to cheat, hinder, and delay creditors; and this *263is conceded by appellees. But it is contended that, tbe interpleaders, Swofford Bros, and I. Stadden Grocery Company, not being parties to this fraudulent transaction, their rights were not affected by it; and this is true. But this suit is solely upon the attachment branch of it, m which the interpleader cannot intermeddle. The interplea has not yet been tried. When that is heard, the rights of the inter-pleaders will be determined. The only question, as the case is now presented, is, were there sufficient grounds to sustain the attachment? And these grounds may be predicated on the sale made on December 26th, or on the fraudulent nature of the mortgage, executed two days thereafter. If either be fraudulent, the attachment should have been sustained. The sale had been consummated. The contract had been executed. A fraudulent disposition of the property had been made, and from that moment every creditor of the firm was given the right by law to attach, and no disposition of the property thereafter made could alter or abridge that right. If, after this fraudulent transfer had been made, other creditors than the attaching ones, in their race of diligence to secure the payment of their debts, fairly and honestly got possession of the property, or fixed liens upon it, they would have the right to establish their claims; not in the attachment suit, for they are not parties to that, but either by a separate action or as interpleaders. Under our Code of Practice, the attachment suit is first tried, and then the interplea. In the trial below, the theory seemed to be that the attachment could not be sustained unless'the mortgage was fraudulent. But, while it is doubtlessly true that the attaching creditor will not be able to reap any fruits from this litigation if the mortgage ultimately should be held to be valid, yet the attachment can and ought to be sustained upon the fraudulent character o'f the sale, because in that suit the proof of it sustains the allegation of the complaint that the defendants had made a fraudulent disposition *264of their property with the intent to cheat, hinder, and delay their creditors; and therefore the motion of the plaintiff for a peremptory instruction tq the jury to find for the plaintiff, which was refused, should have been given.
We are asked to pass upon the question as to whether or not the mortgage, executed under the circumstances shown by the proof, was fraudulent; and, were it not for the fact that, independent of that transaction, we have found a fraudulent transfer upon which the attachment suit should be sustained, we would be compelled to pass upon that question. But, if we shquld’find it to have been fraudulently executed, this would not relieve the court from again considering the same question on the trial of the interplea, because in that case the parties are different. In the case before us the interpleaders are not parties, and therefore have not been heard. The mortgage is valid on its face, and when the proof upon the issue raised by the interpleader shall be heard it may be quite different from that now presented. The interpleaders must be heard, and they must be heard in a suit to which they are parties. Their testimony was not even taken in this case, and they were not required to defend it; indeed, they would not have been permitted to do so. They have not yet had their day in court; hence, whatever might be our decision now, their rights would remain unadjudicated. We cannot see the necessity of now passing upon that branch of the case. Let the judgment of the court below be reversed, and the cause remanded.
Thomas, Townsend, and Gill, JJ., concur.