The defendant Robert A. Forsyth takes, in this case, a preliminary point; that the plaintiff, on his own showing, is not entitled to any relief, even if the assign*118ment be fraudulent. The principles bearing on this point, are these: Where a debtor interposes a fraudulent obstruction, to prevent his creditor’s collecting a judgment, on which judgment the creditor’s remedy (as against the specific property covered by the fraud) would have been ample at law, but for the fraudulent obstruction, a court will interpose its equitable jurisdiction to clear away that obstruction ; “ so that, the obstruction being removed by the action of the court of equity, he could pursue his legal remedy with effect.” (3 Kernan, 166.) To entitle himself to this relief, the creditor must show in his complaint, (where, as here', he follows his remedy against real estate,) 1. That there is such particular real estate ; 2. That the judgment would have been a lien thereon if the fraudulent obstruction had not been interposed; 3. That by reason of such interposition, his execution cannot reach it, and therefore his remedy at law is not sufficient. (See 9 Wend. 561, 2.)
In the case before us, the averments are, that on the 13th Sept. 1853, James C. Forsyth (the assignor) had certain real estate, which is particularly described; that on that day the plaintiff commenced an action against him, and in it sued out of this court an attachment against the property of said Forsyth, as an absconding debtor, and caused the same to be delivered to the sheriff of Ulster county, (where the lands are situated,) and that said sheriff did immediately attach the specified real estate as the real estate of said James 0.; that, in his said action, the plaintiff obtained judgment against said James 0. on the 23d of January, 1854; docketed the same in Ulster county the 24th of January, 1854, and issued his execution thereon the 25th of January, 1854 ; on which execution said sheriff made, out of the attached personal property of said James C., some $8000 and over, “ and that there still remains due and unpaid' on said judgment about $2000;” and that said James 0. “ has no personal property in Ulster county from which any part of the balance of said judgment can be made.” The plaintiff proceeds to say that, on the 24th of August, 1853, said James O. made the assignment in question, purporting to convey to his assignee, Robert A. Forsyth, this specific real estate; that under that *119assignment said Robert “ claims to hold and possess the right to and over said real estate, given him in and by said instrument (not averring that that is even colorable title;) and that said instrument is fraudulent and void, and was made with intent to hinder, delay or defraud the creditors of said James 0. and particularly the said plaintiff. And he concludes by asking that said assignment be set aside as fraudulent and void as against the plaintiff. This complaint would seem not to make the case, which is necessary to give this court equitable jurisdiction of the matter. There is no averment that the plaintiff’s remedy, at law, is not ample; 'no claim that the assignment hinders or obstructs him, in enforcing his execution, or in any way prevents his selling this very real estate on that execution; and no averment that a purchaser on such sale, (whether this plaintiff, or a third person,) would not be in just as good a position to contest the validity of the assignment, as is this plaintiff here; or that any purchaser could not contest it, at law.
I give no weight to the defendant’s claim, that there is no averment that James C. was ever seised of this real estate after September 13, 1853 ; because it is entirely clear, (Code, § 237, division 2,) that the plaintiff having obtained judgment in the action in which the attachment was issued, and ah execution having been issued thereon, and a balance remaining due after the application of the attached personal property, the sheriff can sell so much of this real estate attached as may be necessary to satisfy that balance. These provisions make entirely certain the rule, that such a judgment, when obtained, for its lien on both the personal and real estate attached, relates back to the time of levying the attachment; taking its priority from that date.
The complaint in this suit, however, can have effect in no other view, than the one above set forth as answered by the preliminary objection of the defendant R. A. Forsyth. Since it is not the usual creditor's bill of the old practice, to which the return of an execution unsatisfied was an absolute condition precedent; while this execution is not returned at all: nor is it *120a suit to remove a cloud upon title; because the plaintiff does not pretend to have any title.
There is one other controlling view of this case; and as it is ' one that is rather to be gathered from several cases, than to be found clearly decided in any one suit, it is best to consider it here, independently of the previous ground, and as if the complaint made a case entitling the plaintiff to the relief he would like to have. And as this view is based entirely on the statute, it is necessary to see precisely what the statute is, as well as to consider what was the common law, without and before any statute on the subject.
The statute is, (2 R. S. p. 137, margin, § 1,) that “ every conveyance, or assignment of any estate or interest in lands, &c., made with intent to hinder, delay or defraud creditors, or other persons, &c., as against the persons so hindered, delayed or defrauded, shall be void.” In the face of this statute—too plain to admit of doubt—it will not do to say that honesty of purpose in the assignee, has any effect whatever on the intent of the assignor ; and this latter is the intent with which the assignment is made. lie makes the assignment, and no one else: and the making intent is his, and no one’s else. There is no need of referring to authority on such a point; but it has been so decided, (see 18 Barb. 272-4.)(a)
Nor, on the other hand, is it in the least degree material to the question of thevalidity of the assignment, to ask ivhat other acisbesides making the assignment, the assignor has done; or how fraudulent or otherwise those other acts are. A very dishonest man may make an honest assignment; and a very honest man may make one that the law will pronounce fraudulent and void. But, in *121each particular case, the only pertinent inquiry is, with what intent was the assignment made? You may, doubtless, go outside of the mere naked writing, to show facts bearing on the question of fraudulent intent. But they are, then, nothing but evidence of what was the intent, with which that writing was made. As, for instance, leaving the assignor in the possession and control of assigned personal property; this (unexplained) tends to show, that the transfer was intended but as a cover; and is always proper evidence, on the question of fraudulent intent in making the assignment. Here it is not the subsequent act that renders void the instrument; but the presumption, therefrom, of the prior intention; an intention to give color of title to an assignee, to hinder creditors from interfering with the property; and yet leaving the control, real disposal and benefit, to the assignor. Under this statute, the instrument itself is, like any other instrument or contract, good, or bad, at the time of its making. And the then present intent is neither varied by, nor does it give place to, any subsequent intent.
Now, at common law, a debtor could pay a debt by a transfer of property, real or personal, as well as by counting out the silver. And he could so transfer, or pay, to one person for the use or benefit of another who was his creditor, or of two others, creditors. And he could, in either way, pay one creditor instead of, or in preference to another. And this, whether he was solvent or insolvent. I am aware that this has, once, been styled (while conceding it to be the common law,) an “ iniquitous principle of the common law,” (citation in 10 Paige, 229.) But with all due deference to the judge who ventured that remark, I must say that I do not see how common law principles could be shaped to general ends in any other way. To make a different general rule, would be to take away a man’s rights over his own property, while it remains his own; and to vest, somewhere, an authority perfectly inquisitorial. If there were found, resulting from the general rule, a particular mischief, there could be, by statute, a particular remedy applied; as there has been. To apply this remedy, have been passed the *122English statutes against fraudulent conveyances, and the acts of bankruptcy; various statutes in the different states of this union; and the very statute we are considering in this case. And in applying this remedy, (and especially as against fraud,) we must give the statute a liberal construction ; to abridge the mischief, and enlarge the remedy. But we must not strain the statute to make it mean what it does not. And, (for one thing,) the statute does not mean that an assignment giving preference to one-creditor over another, is fraudulent and void. If it meant so, it would have said so ; for it was passed at a time when such assignments were well known among us. Nor does it mean that the assignor’s failing to assign all his property, in any assignment, with or without preferences, makes his assignment fraudulent and void. If it meant that, it would have said it. In other states, where the legislatures did so mean, they have so said, and compelled the assignor to add his oath to the fact that the assignment is of all his property, (See Burrill on Assignments, 228 to 227.) Among these states is Massachusetts ; and in that state, before their statute, which is of comparatively recent date, there were many express decisions that an assignment oí part of one’s property, to pay part of one’s debts— giving preferences of necessity, and in fact—were perfectly good. Such certainly must be the common law rule ; and such I take to be, as certainly, the rule under our statute. And the decisions of our own courts, which are not infrequently claimed to countenance a contrary rule, to hold an assignment giving preferences void, unless it be a transfer of all the debtor’s property, are by no means authorities to that point. To examine them : 3 Barb. Ch. Rep. 644; this was a case where a person having ample property to pay all his debts, (not insolvent,) assigned all his property, giving the assignee authority to use the avails for the defense of any suits against the assignor by his creditors ; and attempting to set apart and appropriate a part of the property for the use of his wife. It was there properly held, that if he had not ample means to pay all, then this appropriation for his wife made his assignment void. And it was further held, if his means were ample to pay the whole, *123any assignment of all Ms property could be only to delay and hinder creditors; the more especially as he provided for the use of those means in defending suits against himself. And it is to this extent only, that 18 Barb. 275, is supported by its references ; and it does not profess to be so supported any further; for its citations follow this sentence : “ assignments of this kind [of all one’s property,] preferring creditors, can only be made by an insolvent debtor.” The subsequent sentence, (that they are only tolerated, ‘‘ when devoting the whole property of the debtor to the payment of his debts;”) is entirely unsupported by even a reference ; and it is not a. remark touching the case. The only point in that case was, whether an assignment of all the debtor’s property, to assignees who acted in good faith, and were bona fide and preferred creditors to more than the whole amount of the assigned property, could not hold the property as against another creditor ; notwithstanding the assignor made the assignment with a fraudulent intent—that being unknown to the assignees. The judge, at circuit, charged the jury that they could so hold as is the English law. This point was taken up ; the charge decided erroneous, and a new trial ordered.
The case in 6 Hill, 438, was where a debtor assigned “ nearly all” his property, for the payment of four of his creditors ; providing that any surplus after paying those four debts, should go to the use of the assignor, he being insolvent. And the. assignment was held bad on that ground. But it is supposed that Mr. Justice Bronson, in giving the opinion of the court, and (at page 439, 40) while putting it expressly on that ground, states views against all assignments giving preferences ; and really holds that all one’s property must be assigned, or the assignment will be bad, when he says such assignments are allowed td'stand only where the debtor “ makes an unconditional surrender of his effects, for the benefit of those to whom they rightfully belong;” citing several cases. Of these cases, the principal and far the strongest one, containing reviews and citations of all his others, is 11 Wend. 587. And by turning to this case and examining it, with its references, we shall probably be able to arrive at such basis as there is for such a hold*124ing; (supposing, for the present, that the learned judge ever so held.) And to take them in their order.
First, in date, of those references, is 2 P. Wms. 427 ; there a party, not having committed any act of bankruptcy, to bring him within that statute, assigned part of his property to a particular creditor to pay his debt; (which was held good;) and that case is so far from holding that to make it valid the assignment should have been of all the debtor’s property, that it holds, expressly, that had it been of the whole, it would for that reason have been void. And that case says, “ there is no such thing as an equitable bankruptcy; it must be a legal one” (to give the statute effect;) and there may be a reason for a bankrupt to prefer one creditor before anotherand further, it holds that if a chose in action were so assigned, and the assignee were thereby obliged to come into a court of equity to enforce it, the court of equity would enforce it. The next case cited is 1 Atkyns, 154, (marginal page.) This was also a partial assignment, to pay a particular debt; and there was no decision in the case. But the issues, settled to be tried, referred to the date of the assign- or’s “ bankruptcyand to the actual transfer prior to that date; the reasoning, and the reporter’s note of the case, going to sustain the assignment. The reasoning is Lord Hardwicke’s. We next find 5 Term Rep. 234. 424. At page 234 it is held, (and that is the whole case,) that a confession of judgment to one creditor, whereby he obtained two hours’ priority of levy, and thereby a preference over another creditor, was not fraudulent, within the statute against “ delaying, hindering or defrauding” creditors, and that statute covers judgments by confession; though made with the express intent to give the preference. And at page 424, though the case is one of a partial assignment. giving preferences, and really does not meet the point under discussion, although the assignment was held good, it is said by Lord Kenyon, “ it is neither illegal nor immoral to prefer one set of creditors to another. It was never held, even in the case of a trader, that he could not give a preference in some respects, provided the property he set apart for the payment of one or more favorite creditors, did not exhaust his whole estate; *125or approach so near to a disposition of the whole as that the exception was merely colorableciting what precisely supports him, 1 Burr. 477, 8. While in this case (in Burrow) the court, by Lord Mansfield, say,“ there is a great difference between the conveyance of all and of a part. A conveyance of a part may be public, fair and -honest; as a trader may sell, so he may openly transfer many kinds of property, by way of security while conveying all would be an act of bankruptcy, (under their statutes; that point should be borne in mind in reading all these English cases.) At page 425 of 5 Term Rep. Ashurst, J., says, “there is no objection to a debtor’s preferring one set of creditors to another, unless in certain cases on the bankrupt laws. Where the bankrupt laws do not interfere, a debtor may give preferences to particular creditorsthe statute against fraudulent conveyances not stopping it. In the next case, (6 Term Rep. 152,) a creditor took part of a debtor’s stock in trade, as a security for his debt; and it was held good. And that is all there is of that case. Next is 8 Term Rep. 521. There the transfer did not profess to be of all the debtor’s property; and it gave preferences. Nor did the creditor make any point of its being, really, of all; and it was held good. And there (at page 528) in support of the deed, and treating it as if of all the debtor’s property, Lord Kenyon says; “ but putting the bankrupt laws out of the case, a debtor may assign all his effects for the benefit of particular creditors.” He (Lord Kenyon) having previously (5 T. R. 424) decided that, (not “ putting the bankrupt laws out of the case,”) a debtor might assign part, for such a purpose. Next is 4 East, 1; which was an action to set aside a confessed judgment, which really did delay and hinder the (there) plaintiff, in collecting his debt; and yet it was held good. And (at page 18,) Lord Ellenborough, Oh. J., says, “ it is not every feoffment, judgment, &c. which will have the effect of delaying or hindering creditors of their debts, &c.; that is therefore fraudulent within the statute; for such is the effect, pro tanto, of every assignment that can be made by one who has creditors. Every assignment of a man’s property, however good and honest the consideration, must diminish the fund, *126out of which satisfaction is to be made to his creditors. But the feoffment <fcc. must be devised of fraud,” &c. Next is 3 Maulé Sp Sel. 371; where a debtor, for general benefit of all creditors, assigned all his property; and the act was sustained. But it was sustained, and stated to be, on the principles of the cases in 5 Term Rep. above set forth, which were cited on the argument by the prevailing party ; and (3 M. & Sel. 376) approved by Lord Ellenborough. And (page 375) he says, “ the principle of those decisions would be destroyed, if we should hold an assignment fraudulent, because it may operate to the prejudice of a particular creditor.” Next, (coming to our own courts,) is 5 Cowen, 547. There there was a general assignment of all the debtor’s property, securing certain benefits to himself, and with various other provisions. And the decree made in the case, by the court for the correction of errors, (see p. 586,) is, “that the assignment is void by reason of the trust, or provision contained therein, for the benefit of said William Cairns,” (the assignor.) And I can find nowhere in the case even a remark that a debtor, to give preferences in an assignment, must assign all his property. And the reporter’s note is to no such effect. The main point he notes is, that “ an insolvent debtor may pa,y some creditors in preference to others; and may secure his preferred creditors by assignment in trust for such creditors ; but hé can make no assignment of any part of his property in trust for himself.”
Turn now to the case specially relied on, 11 Wend. 187. It was a case in the, same court, (for the correction of errors ;) and the actual decision (p. 225, 6) is, “ that the assignment is void, because it makes the preference given to the creditors of the assignors, designated as class No. 2, to depend on the condition that the preferred creditors shall give the assignors an absolute discharge from their debts.” And this was, actually, the only point in the case : and the first paragraph of the reporter’s head note is not in the decision. It might seem (at page 194) to be found in the opinion of Mr. Justice Sutherland, where he says, “ it is perfectly settled, both in England and this country, that a debtor in failing circumstances has a right to prefer one cred*127itor or set of creditors to another, in all cases not affected by operation of a bankrupt system. He may assign the whole of his property for the benefit of a single creditor, in exclusion of all others; or he may distribute it in unequal proportions, either among a part or the whole of his creditors. No matter how, or upon what principles, the distribution is made, if the debtor devotes the whole of his property to the payment of just debts, neither law nor equity inquires” &c. And yet, it is perfectly apparent, by this same case, that the doctrine contended for has really no support from that able judge: for, (at page 195,) he says of assignments giving preferences, “ all that is now competent for our courts to do, is to see that they fairly appropriate all the insolvent’s property, or such portions of it as he undertakes to assign, to the payment of his just debts ; and are not made the instruments of placing it beyond the reach of his creditors, and for the benefit, immediate or remote, of the insolvent himself.” Nor does Mr. Justice Bronson, (in 6 Hill,) as I understand his opinion, mean to say any such thing as is claimed. He does not mean to go beyond the case before him; and (looking fairly at his opinion, as a whole,) it would seem to me that, in the remark cited at the beginning of this discussion, he intends no more than he says at page 440, that the assignor must “ part with all control over the property, and devote it absolutely to the benefit of his creditors, without any reservation or stipulation for his own advantage.” And this is found as true, by referring it to such property as he does assign, as it would be if it refer to his assigning his whole estate.»
It must follow, from the conclusions already stated, that the assignment of Jas. C. Forsyth, (either independent of the statute, or under it,) although it gave preferences, and did not assign all his property, would not be for that reason void. And as he was not bound to assign all his property to make his assignment valid, so his assignment is not necessarily rendered invalid by his failing to deliver all of his personal property to the assignee, though none is excepted on the face of the paper. It is true that to give full effect to an assignment of personal property, delivery of the assigned property, and a continued *128change of its possession are required. And a failure to deliver, or rather the assignor’s continuing in possession of the whole (or even a part) of the assigned property, is a badge of fraud. But, where there is no inventory of the assigned property, accompanying the assignment, the assignor’s retaining some property that he might have assigned, or that (being covered by the general terms of his assignment) he might have delivered under it, is not an act that of course makes his whole assignment void. And there is no case, in which it was ever thought of being held, that an assignor’s failing to empty Ms pockets, (whether of $5, or $500 ;) or his not delivering his watch, or his breast-pin, or his penknife, made void a general assignment, otherwise good.
All an assignor’s acts, connected with, or coincident in time with, his assignment, may generally be inquired into; because the law allows the greatest latitude, in searching for evidences of a fraud, which from the nature of the case, must be confined almost exclusively within the assignor’s bosom. But to make the instrument void, when not so on its face, as matter of law, the fact of a fraudulent intent in making it, must be found, and found legitimately, from evidence that will fairly support the finding; and it must be, also, an intent to commit a fraud on creditors by making the assignment; and not by some entirely independent act, which might, and probably would, have been done precisely as it was, had no assignment been made or dreamed of.
As this court understand the law to be, the charge given at the circuit is certainly erroneous, where it says, that unless the assignor surrendered to the assignee all the property which he had, liable to execution, at the time of executing the assignment, the assignment is void; and that if J. 0. F. did not deliver over all his property to the assignee, the assignment is void. It is also erroneous in saying that if J. 0. F. carried off this $5000 or the bag of gold, whatever it may have contained, the assignment in question cannot be upheld ; and that it became the duty of the jury to find that it was executed with intent to hinder, delay and defraud creditors. It is also erroneous *129in saying, that if, when J. 0. F. executed the assignment, he intended to reserve the $5000 to his own use, and did take it away with him to Europe, the case is the same as if the $5000 had been reserved on the face of the assignment.
[Albany General Term, March 2, 1857.A new trial must be ordered.
Wm. B. Wright, Harris and Gould, Justices.]
It must be borne in mind that I speak for this case, and the principles it involves; and that, therefore, what I say is spoken in reference only to voluntary assignments in trust to pay debts: not as to conveyances of an actual estate to, and for, the grantee ; (which latter are the cases of most of the English authorities as to fraudulent conveyances.) In England, and here, where the estate and benefit are to and for the grantee, (of a deed of a farm to A. for a price, or to pay a debt to him;) the bona fides of the grantee may and does operate to make good a conveyance which the grantor intended to help him to delay and defraud other creditors.