(dissenting.) The defense, as presented in the defendant’s answer and in the proof offered in support of it at the circuit, having been 'overruled by the circuit judge, the question presented is, whether if the defendant had fully proved what he proposed and, offered to do, it would have constituted any defense in the action. It must therefore be assumed that Stevens & Go. were the original owners of the timber in question; that they sold it to the plaintiff; and that such sale was fraudulent as against *555their creditors. The defendant must, I think, by its offer be- deemed to have proposed and offered to prove, in effect, that the plaintiff Was a particeps criminis in the fraudulent purpose of Stevens & Co. to hinder and defratid their creditors, and was merely an agent or tool of theirs, used to conceal and cover up their property and consummate such fraud. The sale, in this view of it, while it would be valid as between Stevens & Co. and the plaintiff, would be void as to their creditors, and no title could be acquired through it as against such creditors, except by a bona fide purchaser. The title having thus passed, as between them, from Stevens & Go. to the plaintiff, he could undoubtedly give a good title to it to the defendant, and it doubtless would have acquired a valid title to the timber if it had paid the purchase money therefor to the plaintiff before notice of the fraud. But the sale being fraudulent as against the creditors of Stevens & Co., such creditors could doubtless have followed the property as far as they could trace and identify it5 and if it had been found in the defendant’s hands in specie it could have been claimed and seized by the, attaching creditors as the property of Stevens & Co. The plaintiff would, in the eye of the law, in this aspect of the question, have been regarded as the mere fraudulent agent or conduit through which the title passed from Stevens & Co. to the defendant. No doubt, I think, could have existed on this point, if the property had been found undisposed of and unconverted in the hands of the defendant, by the sheriff, Upon the execution of the attachment. The defendant unquestionably acquired the title to this timber, but as it had not paid the purchase money therefor-, it was a mere defeasible title, and it could not have held the proprety as against the creditors of Stevens & Co. It owed the plaintiff the price of the timber. This debt, I think, must be deemed a substitute in its hands for the timber, and liable to bo attached, to the same effect as if it had been the timber in specie, itself, at the time of the service of the attachment. *556I think the rule well established, and a sound one, that when property has been feloniously, tortiously or fraudulently obtained, whenever the owner or creditor is entitled to reclaim, seize or attach the property itself, if found and identified, the products of or the proceeds or substitute for, the orignal property or thing still follow the nature of the property or thing itself; and this right to take it as a substitute for such thing remains as long as the property can be traced, and only ceases when the subject is turned into money and mixed and confounded in the general view of the same description of property, or its identity destroyed. (Taylor v. Walsh, 1 Maule & Sel. 562. Scott v. Luman, Willes, 400. Whitcomb v. Jacob, Salk. 160. 1 Atkins, 173. 3 Burr. 1369. Copeland v. Collant, 1 P. Wms. 320. Vial v. Michalet, 4 Wash. C. R. 105. 6 Hill, 425.)
The money owing by the defendant for this timber would be clearly considered in equity as a substitute for the timber, and as a debt due to Stevens & Go. and would be held upon a creditor’s bill against them and the plaintiff as equitable property, or applied in payment of their debts. And I can see no reason why a lien was not created upon it, and why it was not bound by the attachment, upon the service thereof in the suits of Havens & Field v. Stevens & Go. Upon an attachment under the Code the sheriff is required to attach and safely keép all the property of the defendant, in his county. He is to receive and take into his possession all debts, credits and effects of the defendant. The attachment reaches all kinds of property, whether legal or equitable, and I can not see why it does not reach all equitable property as • such, as a creditor’s bill or other proceeding to reach the equitable property of & judgment debtor upon supplemental proceedings after executioti returned unsatisfied. Treating the plaintiff as a mere agent of Stevens & Go. to sell their property, and he is nothing more, if the sale to him was fraudulent, the debt created on the sale by the plaintiff to *557the defendant, of such timber, is, in equity at least, and I think at law, also, a debt to his principals, Stevens & Co., and was as such, properly seized and levied upon under the attachment.
The only question which remains is, whether the defendant, having purchased the timber of the plaintiff and contracted to pay him therefor, can voluntarily pass by him and pay the price to the creditors of Stevens & Co. upon the assumption that the plaintiff’s title was fraudulent, and that such creditors were legally entitled to the proceeds or price of such timber. The relation between the plaintiff and the defendant is that of debtor and creditor. It is like the relation between bailor and bailee.
The defendant is primarily bound to pay the plaintiff for the property which it has purchased of and received from him. The attachment served upon it did not change this relation, or its rights or duties. It was, as between them, like a notice, or at most like an injunction, forbidding it to pay the debt to the plaintiff. It could not, after service of the attachment, have paid the plaintiff, except at the peril of having to pay the debt a second time to the creditors, pending the attachment suit. The service of the attachment, while—if the sale from Stevens & Co. to the plaintiff was" fraudulent—it created a lien upon this debt, yet did not confer upon the defendant the right to assume that such was its legal effect, or that the plaintiff was not at the time of the sale the legal owner of the timber and had the power to give, and had conveyed to it, a valid legal title to said property. But although this is, primarily prima facie so, it is not conclusive upon the rights of the defendant. If it was satisfied that the plaintiff had no valid title to the timber in question; that he obtained possession of it by fraud ; that he was the mere agent or tool of Stevens & Co. to help them conceal and cover up the property, and keep it from their creditors, and that the attaching creditors had the valid legal title to such property, I think it might at its own risk and *558peril recognize such title, and pay the debt to the sheriff, or to the attaching creditor. Of course, the attachment proceedings are no justification for such a course, and do not of themselves, by any legal force pertaining to them, afford the slightest defense to the defendant for making such payment. But the defendant might assume that they were valid, and take upon itself the burden of proving such validity and the rightfulness of the title of such creditors to the timber in question, and its substitute, the debt incurred therefor and still subsisting. And I think it was in this view entitled to give the proof offered for that purpose.
This rule, I think, is established by the following oases : King v. Richards, (1 Wheat. 418;) Hardman v. Willoch, (9 Bing. 378;) Bates v. Stanton, (1 Duer, 45.)
In principle, I think the rule precisely the same as between bailor and bailee. In King v. Richards, (supra,) Judge Kennedy says: “It would be repugnant to every principle of honesty to say that, after the right owner had demanded the goods of the bailee, the latter shall not be permitted, in an action by the bailor against him, to defend against his claim by showing clearly and conclusively that the plaintiff acquired the possession of the goods either fraudulently, tortiously or feloniously, without having obtained any right thereto.” The same view is taken, in substance, by Judge Buer, in Bates v. Stanton, (supra.) In all cases, I think, where a man finds himself in possession of personal property to which there are several claimants, he may. determine at his peril which is the true and rightful owner of such property, and may deliver the same to him, or he may pay the price of such property to the claimant, as the defendant did in this case. The peril he runs in such case is that he takes the burden upon himself, if sued by any other claimants of such property, of establishing the fact that he delivered the same, or, paid the purchase money therefor, to the lawful owner thereof; and proof of such fact will constitute a complete .defense to any such action • against him. In accordance with this view, I *559think, the defendant was entitled to give in evidence the facts it offered to prove at the trial, and that such proof was erroneously overruled. There should, therefore, be a new trial, with costs to abide the event,
[Monbob General Term, September 3, 1866.Hew trial denied.
Welles, JE. D. Smith and Johnson, Justices.]