recapitulated the facts, and then continued: This brief statement of the transaction, is sufficient to dispose of the case. It was a contrivance to obtain this debt of Henry’s, by inducing some innocent party to trust him with the possession of stocks, and then pay for them in Henry’s worthless notes. Allowing that Henry had been guilty of a breach of trust towards the Currie’s, as is alleged in their *590answer, their attempt to right themselves by using him to plun-. der others, however ingeniously devised, or satisfactory to their own consciences, was no more nor less than a fraud.
There is nothing in the argument, that there was no fraud in this instance on the part of the purchaser, inasmuch as Henry himself was the purchaser of the bonds from the complainants. In fact, Henry was neither seller nor purchaser. He was applied to as a broker, to buy the bonds, not for himself, but for Kimball. He was a mere middle man between Kimball, and such person as he should find willing to sell the bonds. He had no interest in the affair, beyond obtaining his commissions as a broker. I. cannot, therefore, regard him as the purchaser from the complainants. The real buyers, through McCormick and Kimball,, were the Currie’s; and they attempted to procure for Henry’s notes, these state bonds, which the complainants parted with for cash.
But if Henry were to be treated as a purchaser from the complainants, the defendants are in no better position. The bonds were delivered to Henry for cash only. There is no pretence that the complainants intended to credit him for the price, a single moment. The contract was therefore unexecuted until pay: ment was made, and the complainants could reclaim their property in the hands of any one, except a bona fide purchaser without notice. Neither McCormick nor the Currie’s were such purchasers. They did not part with any valuable- consideration ; and they had notice from the circumstances, as well as Henry’s declaration in McCormick’s presence, that Henry was not the owner of the bonds.
If Henry is to be deemed the complainant’s broker for the sale of the bonds, the case is still stronger in their favor. He bargained them for cash, and he refused to deliver them save for cash. The fact that they passed into the possession of McCormick, through the trickery of Kimball, does not alter the case. Delivery usually precedes payment on cash sales, but the property does not pass until payment be made or waived. On the refusal of McCormick to pay the money, the complainants had a right to demand a return of the bonds. In most of the cases cited by the defendants, the sellers had either waived the pay*591ment of the price by an unconditional delivery, or had affirmed the sale as an existing contract, by bringing an action upon it. The most recent of those cases, Hogan v. Shorb, (24 Wend. 458,) was one of the latter class. For the general principle, see Russell v. Minor, (22 Wend. 659 ;) Acker v. Campbell, (23 ibid. 372;) Leven v. Smith, (1 Denio, 571.) Also Haggerty v. Palmer, (6 Johns. Ch. R. 437;) and Keeler v. Field, (1 Paige, 312.)
The objection that there was a sufficient remedy at law, was not taken in the answer, and would now be too late, if it were valid.
The Currie’s must be decreed to return the five state bonds, or in default of so doing, to pay the complainants their value on the 2d of September, 1843, with interest from that time; and they must pay the costs of the suit.
As to Kimball, he has no right to costs. He was the voluntary instrument in this fraudulent contrivance, lending himself to the Currie’s for a purpose which he could not have doubted was to be accomplished by victimizing some innocent third person. He was a proper party to the suit, and may consider himself fortunate to escape being charged with the complainani’s whole claim. ' - <,
Decree accordingly.