Assuming the theory of the ¡action to be correct, and that it may be maintained upon the evi*346deuce given by the plaintiff on the trial, provided the judgment in the defendant’s favor against King, or the execution, or sale thereon, is fraudulent and void, yet we think that neither the judgment, execution or sale was effectually assailed. There was no evidence that could be legally regarded as impeaching either. If they were valid, it puts an end to the action. It is claimed on the part of the plaintiff, that the levy and sale under the defendant’s execution was fraudulent on the ground, among other things, that when the defendant purchased the oats and beans in question, at the constable’s sale, he left the property in the possession of King, the defendant in the execution. It is undoubtedly true as a general rule, that where the defendant is permitted by the plaintiff in the execution to retain possession of the goods after a purchase by the latter under the execution, the sale is presumptively void as- against creditors. (Gardenier v. Tubbs, 21 Wend. 169. Farrington v. Caswell, 15 John. 430. Fonda v. Gross, 15 Wend. 628. All the cases on the subject, however, have this provision, that where a sufficient reason appears for leaving the property in the defendant’s possession, the rule does not apply. Here the referee finds expressly, that the condition of the property furnished a sufficient excuse for leaving it in possession of King ; and in looking into the case made, we see that such finding was well warranted by the evidence.- The ground upon which the referee places his conclusion of law that the plaintiff is entitled to recover,. is, that the debt upon which the defendant’s judgment was rendered was not proved, and that the sale of the oats and beans was therefore not made in good faith and without any intent to defraud the creditors of King. And this seems to be the principal ground upon which the plaintiff’s counsel relies to sustain the judgment. But it was not necessary for the defendant to go behind his judgment and prove the existence or bonafides of the debt. The judgment was confessedly regular, and according to the forms of law; and was valid and effectual until impeached, as much so as if it had been rendered in an action regularly commenced, and not upon confession without an action. In either case it was liable to be impeached for *347fraud, as well in one case as in the other. When the explanation _for leaving the property in possession of the defendant in the execution was given, the judgment stood unimpeached and entitled to the same effect as the one under which the plaintiff makes title.
[Monroe General Term, March 3, 1856.It is furthermore claimed in behalf of the plaintiff, that the active part taken by King in confessing the judgment, consenting that execution issue immediately, procuring a constable to serve the execution and turning out the property to him, was evidence upon which the referee was justified in finding the sale fraudulent, and that such finding, being upon a question of fact, is conclusive and cannot be reviewed. To this it is a sufficient answer to say, that none of these circumstances approximate the question of fraud. .They do not in the least impair the judgment, or tend to establish its invalidity,'which it was incumbent upon the plaintiff to do. The most that can be said is, that they tend to show that King was more friendly to the defendant than to the creditor whose execution afterwards came into the plaintiff’s hands, and desired to give the defendant the preference over him. This was not unlawful, and was what he had a right to do.
The radical error of the referee consisted in his holding, after a satisfactory reason had been given for leaving the property in King’s possession, that the defendant was bound to give evidence of the existence of the debt upon which the judgment in his favor was rendered.
The judgment appealed from should be reversed, the report set aside and a new trial granted.
Ordered accordingly.
Johnson, T. R. Strong and Welles, Justices.]