I concur with the court, that the machinery is personal property ; but 1 am not satisfied that the other part of the charge was incorrect.
The plaintiffs are, by Lee himself, constituted his assignees, ay a deed entirely voluntary on his part; and as such, they claim, that they can treat as void a prior deed, given by Lee, to secure his indorser, as he neglected to take possession of the property conveyed by it. No actual fraud is pretended in the irst deed. There was no pretence of any trust, otherwise than as it may be inferred from the fact that the mortgagor of machinery in a cotton mill was suffered to retain possession of it, for the space of seven days after the mortgage, without any provision being made to change the possession. At most, therefore, the plaintiffs can only claim it as a question of constructive fraud, as a voluntary conveyance is fraudulent. Our legislature has adopted the statute of 13 Eliz. as to creditors, without its proviso ; but not the statute of 27 Eliz. as to purchasers. But as it has been holden. that the principles of the common law would have effected all that was valuable in those statutes, we must consider the cases determined under those statutes as generally applicable to the great object contemplated by those statutes, viz. to prevent covinous and deceitful conveyances made with intent to defraud, and to protect those who were thus attempted to be defrauded.
Thompson's deed is clearly good against the grantor and his representatives, but is, if fraudulent, void as against creditors ■jt bona fide purchasers only. The plaintiffs, then, must shew, that they are either creditors or bonaf.de purchasers,
*82Are they creditors? I should hardly think this could bey .claimed. That they are placed in a situation in which they' have assumed certain duties to those creditors, is admitted ; but this certainly does not make them creditors. If they receive nothing, they of course are to pay nothing. Their obligations are commensurate only with their receipts, or what? they might have received. So far from being creditors, they j are agents of Lee, as well as agents of Lee’s creditors, and? have assumed certain duties, at his request, to perform for they mutual benefit of Lee and his creditors. Still I cannot see' how this constitutes them his creditors. Lee could not transfer his liabilities so as to substitute the plaintiffs in the place of his real creditors ; nor are his creditors under any obligation toy refrain from commencing suits against him. If it is to be pre-l sumed, that the creditors assent to this arrangement, it does } not render them less the creditors of Lee ; nor can they make? the plaintiffs creditors, except by an assignment of their claims.? If it were necessary to give such a construction to carry into?: effect the object of the statute, I am not prepared to say how i far we might go to suppress fraud. But as the hands of the.? creditors are not bound ; as they have all the rights remaining-: to try the question of fraud, that existed before this assignment; I see no reason to justify the adoption of this latitudi- ? narian construction. If it be said, that they represent credi-5 tors, this does oot make them creditors. The agent and attorney represent their principals, but are not principals. The ambassador represents the government, but yet he is not the government. These assignees, who take not by operation of law, not by a statutory execution, but receive their power andy their property from the debtor, cannot, in any legal sense, beI said to be his creditors. Had one solitary case been produced,? •in which a court of equity had treated them as creditors, because they represented their interest, I should not think it? -followed, that a court of law could treat them as creditors? within the intent of that statute. In Walker & al v. Burows, 1 Atk. 83. the assignees of a bankrupt brought a bill to set: aside a prior voluntary conveyance, on the ground (among? others) that-it was within the statute of 13 Elk. The Lord Chancellor, however, refused to set aside the conveyance, on 1 that account; as there was no proof that the bankrupt was in-: debted at the time of such conveyance,- That opinion would seem to imply, that if he had been indebted, it might have been.? *83otherwise. But the question as to the rights of the assignees was not discussed at all, or decided. And Roberts, in his trea-. Rise on Fraudulent Conveyances, says, “ that there is no case to shew that even a bona fide conveyance to a trustee for payment of debts will have the effect” — i. e. to overthrow a prior voluntary deed. Rob, Fr. Con. 369. And in the case of Bassett v. Clapham, 1 P. Wms. 358. where there was an assignment to trustees, and a prior voluntary settlement was in their way, the creditors, and not the trustees, brought the bill to set aside that conveyance. The result, therefore, is, that the (plaintiffs cannot claim as creditors.
Can they claim as bona fide purchasers ? The object of the -statute of 27 Eliz. was to protect those who honestly paid their money for lands previously conveyed away, by the grantor, to . his friends, without a valuable consideration. When there was no publicity given to the transfer of estates, such a regulation was much more necessary than when every title is upon record. The object was important, and the effect salutary ; but .it is to protect the bona fide purchaser only. Those who have paid nothing, or next to nothing, (and, in my opinion, those who come in as champions of litigation) are not the objects of this statute.
The consideration must be valuable. Taylor v. Jones, 2 Atk. 600. Twyne’s case, 3 Co. 83. And inadequacy of consideration is evidence that it is not bona fide. Doe d. Parry v. James, 16 East 212. Those who claim to overthrow a pri- or deed must be bonafi.de purchasers, not in a legal sense merely, but in the vulgar and common intendment. Rob. Fr. Con. ch. 4. s. 1. The plaintiffs have paid nothing, unless one dollar is such payment; nor are they ever to pay any thing, but what they derive from the estate conveyed. They cannot, therefore, be injured, — they cannot be defrauded, — if the prior conveyance stands. They are mere volunteers. They may be so far bona fide purchasers as to hold againsta prior unrecorded deed. Dey v. Dunham, 2 Johns. Chan. Rep, 189. But they are not the bona fide purchasers intended by this statute. So it was judicially determined, by Lord Hardwicke, in the case of Walker v. Burrows, 1 Atk. 93. before cited. There the assignees claimed to set aside a prior voluntary conveyance, first, as void by the 13 Eliz. — secondly, as void against them as purchasers under the 27 Eliz. — and thirdly, as void under the statute of 21 Jac. 1. c. 15. The Lord Chancellor gavs, that an-*84der the statute of 27 Eliz. a settlement is clearly void, if voluntary, which is not for a valuable consideration, and subsequent purchasers shall prevail to set aside such settlement; but this can only be applied to the case of subsequent purchasers; and therefore, there is a plain distinction between the two statutes. His Lordship adds, that the assignees, standing in place of the bankrupt, are bound by all acts fairly done by him, notwithstanding they gave the legal estate; and this proves, that assignees of bankrupts are not considered as purchasers of the legal estate for every purpose; and that the consideration of five shillings and other considerations, does not oblige the court to hold it, at all events, to be a valuable consideration. 1 Atk. 94.
The Lord Chancellor, it is true, speaks here of acts done fairly by the bankrupt. As applicable to the case before him, it seems to me he must have used that term in contradistinction from a case of actual fraud; for voluntary conveyances are void only as they are fraudulent. Doe d. Watson & al. v. Routledge, Cowp. 705. 710. Rob. Fr. Con. ch. 4.
Again: trustees of bankrupts, (of course, trustees created by the bankrupt himself,) take the property subject to all the equities with which it is charged in the hands of the bankrupt. This is a well settled rule in equity. Thus, if they apply to a court of chancery for a legacy due the wife of the bankrupt, they must make provision for the wife; for they ought not to be in a better condition than the bankrupt himself. Jacobson & al. v. Williams, 1 P. Wms. 382. Cox’s note to Bosvill v. Brander, 1 P. Wms. 460. So, if there be a defective conveyance made by the bankrupt, or an agreement to convey not executed; the assignees take the estate subject to this charge. Russell v. Russell, 1 Bro. Chan. Rep. 269. Taylor v. Wheeler, 2 Vern. 564. And in this respect, assignees differ from - bona fide purchasers of the legal estate, and from mortgagees, wiio are considered quasi purchasers. Case of Howe & ux. 1 Paige, 125. 128. So it is said, by Lord Chancellor Parker, in Cock v. Goodfellow, 10 Mod. 489. 497. that the commissioners can assign nothing but what the bankrupt could honestly assign to them. And Lord Hardwicke says, that although assignees of bankrupt be trustees for creditors, yet they stand in the place of the bankrupt, and can take in no better manner. Brown v. Heathcote & al. 1 Aik. 160. 162. And Lord Kenyon says, that the assignment under the commission passes only *85such property as the bankrupt is - conscientiously entitled to. Harrison v. Walker & al. Peake's Ca. 111. These cases are not brought to prove that assignees may not avoid a fraudulent deed; but to shew, that they are treated in a very different manner from bona fide purchasers.
That so few cases have arisen under the bankrupt law, where this point arose, is not very strange, when we recollect that the statute of James, authorizing the assignment of property in possession of the bankrupt, followed so closely after the statutes of 13 and 27 Elk.; and that by these statutes, a fraudulent grant or conveyance is an act of bankruptcy. Rob. Fr. Con. 493. n. Cooke's B. L. 120.
But in the recent case of Robinson v. Mc Donnell, 2 Barn. & Ald. 136. the question seems to have arisen, and to have been directly met, by the Chief Justice of the King’s Bench. There, Belt and Clarkson, for a nominal consideration, as expressed, but really as security, assigned to Sharpe two ships, and a register was taken out in his name; but as it was intended merely to secure Sharpe for acceptances to be made for B. and C., it was agreed that B. and C. should retain possession and use the ships as before; which they did. At the end of six months, Sharpe failed, and his assignees took possession of one of the ships; after which B. and C. became bankrupt; and their assignees brought trover against Sharpe’s assignees for the ship of which they had possessed themselves; and it was holden, that if the assignees of Sharpe had not taken possession of the ship, it would, under the statute of Jac. 1., have belonged to the assignees of B. and C., as these bankrupts would have been the reputed owners. And Lord Ch. J. Abbott adds “ The bill of sale might have been void under the statute of Elizabeth as against creditors, but not as against the party who executed it; and their assignees are, in this respect, in no better situation.” An opinion like this from the Chief Justice of the court of King’s Bench, uncontradicted by his brethren, furnishes strong evidence of the law in Great Britain upon the rights of assignees of bankrupts. If it»be said, that this may be founded upon the particular phraseology of their statutes concerning bankrupts, it is a sufficient answer, that no such thing is intimated in the opinion; and it would certainly be very strange, that those acts should not give as much authority to those who act under them, as the debtor himself could give by a voluntary assignment.
*86But the statutes relating to bankrupts are not thus limitedBy the statute of 34 & 35 Lien. 8. the Lord Chancellor is authorized to take the lands, tenements &c. of the bankrupt, as much as the interest, right and title of the same offender shall extend or be, and may then lawfully be departed with, by the said offender. The statute of 13 Eliz. c. 7. provides, that lands may be taken, purchased for his use, or of or for such use, interest, right or title, as such offender then shall have in the same, which he may lawfully depart with, or with any person of trust, to any secret use of such offender. From these expressions it would seem, that if the property in question was so situated that the bankrupt could assign it to trustees to pay his debts, the commissioners might. But were it otherwise, and had it been holden, that the assignment of a bankrupt’s estate is a statutory execution, it would not therefore follow, that a voluntary assignment, by the bankrupt himself, would have the same effect. Such a conveyance is certainly good to a bona fide purchaser, and perhaps to a creditor; I say perhaps to a creditor ; because it has not been as yet judicially decided here, so far as I know, that even a creditor can take the property from his debtor, except by legal process. In Kimball al. v Hutchins, 3 Conn. Rep. 450. the evidence to prove that the grantee in the deed was a creditor, was ruled out, by the judge; who also ruled, that the deed was not void as against a bona fide purchaser. The latter opinion was overruled, by this Court; but no notice was taken of the former.
Without giving any opinion upon this point, however, I hold, that the plaintiffs are not creditors of Lee, nor Iona fide purchasers, but mere volunteers, taking no more interest than lie had ; and that it follows they can claim no more than he could.
The view which I have taken oí the case, makes it unnecessary for me to consider another question made at the trial, as to the effect of Lee's retaining possession of this machinery. That question is so much embarrassed with conflicting opinions, that I am not disposed unnecessarily to meet it. If the charge was correct, the plaintiffs cannot make that question.
Thinking that it was, I am of opinion that there should be no new trial.
New' trial to be granted.