The officer’s return sets forth with distinctness that the premises were taken on execution on the 22d of September 1865. The next statement in the return is that on the 21st of October 1865 he caused three disinterested and discreet men to be sworn as appraisers, one of whom was appointed by the creditor and the other two by the officer, the debtor having been duly notified and neglecting to choose an appraiser. The time when the debtor was notified, and the time when the appraisers were appointed, is not distinctly given. The statute does not require that they shall be. Gen. Sts. c. 103, § 25. It sufficiently appears that the notice had been given between the two dates named, that the debtor had been given a reasonable time to choose an appraiser, and had neglected to do so, and that the appraisers had been accordingly appointed in the manner prescribed by law. Blanchard v. Brooks, 12 Pick. 47. Cowls v. Hastings, 9 Met. 476. Bucknam v. Lothrop, 9 Allen, 147. The defendant purchased the estate, with notice that it had been taken on execution, on the 29th of September 1865. Under these circumstances, and with the legal presumption in favor of the rightful conduct of persons having an official duty to perform, there being nothing to show that the delay in completing the levy was unnecessary, or that the rights of any person were injuriously affected by it, we do not think that the validity of the levy was impaired thereby. In other words, the delay was *314not so great as to lead to the conclusion that, though unex plained by the return, it was unreasonable.
But upon the other point presented by the bill of exceptions there is a difficulty, of which no satisfactory solution is afforded The court ruled that the judgment which the demandant had recovered against Daniels, and by virtue of which he had made his levy upon the demanded premises, “ was conclusive upon the defendant in this action as evidence of the indebtedness of Daniels to Inman at the time of its rendition, and that Inman was a creditor of Daniels for all the purposes of this case.” The demandant had levied his execution against Daniels upon land of which Cook had a conveyance from Daniels, made or the 11th of April 1863, and of which the record title was in Cook at the time of the levy. He claimed the right to take it on the ground that the conveyance had been made to Cook “ with intent to defeat, delay and defraud the creditors of Daniels, and on a trust for him, express or implied, whereby he became entitled to a present conveyance.” Now the defendant was not a party or privy to the demandant’s judgment. He had therefore a right to avoid it by plea and proof, if his rights would be injuriously affected by it. This general proposition is too clear to need the citation of authorities. Downs v. Fuller, 2 Met. 135. But the demandant’s counsel have endeavored in argument to make a distinction between cases where the only fact to be established is the right of a creditor against the judgment debtor himself, and cases where such a right may incidentally affect third persons ; and claim that if the defendant has no greater or other right to the land than Daniels had, then the judgment should be as conclusive against him as it would be against Daniels. But whatever soundness there may be in this distinction, it is not, in our apprehension, applicable to the facts in the case. To support it, it must appear that the jury have found for the demandant both parts of his allegation, or at least the latter, namely, that the conveyance of Daniels to Cook was upon a trust under which the grantor was entitled to a present conveyance. This does not appear from the report of the evidence or from the verdict. The jury may have found for *315the demandant on the ground that the conveyance was fraudulent against creditors. The statute enables creditors to levy upon land which has been thus conveyed, although the debtor has no remaining interest in it which he could enforce in any manner. The demandant went farther in his allegation, and in his evidence; but the jury may not have been satisfied of anything more than that the conveyance to Cook was intended to defraud creditors. If that were all, as Daniels himself would have no remaining interest in the land, Cook would have a right to hold it against every one but an actual creditor; and upon the question whether the demandant was really a creditor, it is obvious, according to the most elementary notions of justice, that the defendant would not be concluded by a judgment of which he had no notice, to which he was not privy, and against which he had never an opportunity to be heard. His position is, not that the demandant has not a valid judgment against Daniels, which Daniels cannot contest, but that the demandant was not a creditor, and so could not be defrauded. The right to show that the judgment was recovered by fraud or collusion, which is conceded, tests the principle involved. The demandant cannot by any consent of his own, nor by any proceeding to which the tenant is not a party, give the rights of a creditor to one who is not a creditor.
The importance of the principle will appear more strongly when we consider that one who has received a conveyance in fraud of creditors may lose his property, although he has paid for it its full value. To disturb his title, the fact that he who levies upon the land is a creditor must be established against him; and it has never been established, except in a suit against another party, and after his title accrued. On the ground that the judgment against Daniels was not conclusive proof against the defendant that the demandant was a creditor of Daniels at the time of its rendition, the exceptions are sustained.