I fully concur in the views expressed by my brother Christianey, and, under ordinary circumstances, I should content myself with this declaration. But the extraordinary nature of the defense set up, and the fact that the cornt is divided in opinion, impels me to give some of the reasons for such concurrence.
The simple narration of the facts set out in the pleadings, and established by the proofs, suggests the equity of these complainants’ claim to relief. This claim, however, is met by the allegation of fraud on the part of Aaron and Alan-son Thomas in the transaction between them, which resulted in the deed alleged to be defective — not fraud inter sese, but fraud as to creditors; and upon this defense, the heirs and the personal representative of Aaron Thomas rely to defeat such claim. A more unconscionable, and, to my mind, inequitable defense, was never set up in a court of equity That Quirk and Greusel are bona fide purchasers, for valuable consideration, from Alanson Thomas, I can not doubt. As a general proposition, it will be conceded that such purchasers will not only be protected, in equity, in the enjoyment of their purchase, but they will be aided against the claims of those having inferior equities. It seems to be thought, however, that these complainants are not within this rule, but that the fraudulent design of Aaron Thomas inducing the conveyance to Alanson, so far vitiates that conveyance that no equities can arise upon it in behalf of any one. And it was urged at the bar that, as Alanson could not ask the interposition of a court of equity to correct the mistake in the deed to him, so as to perfect his title, his grantees can not, to perfect theirs — in other words, that his grantees stand in no better condition than himself, having acquired *130only Ms equities. TMs is certainly extending the doctrine that courts will not interfere in support of fraudulent grants, or meddle with a fraudulent transaction, m behalf of either actor, to a very great length; and if it be true, makes the fraud of the ancestor an instrument of robbery in the hands of the heir. But this is not the correct rule. A bona fide purchaser has often superior equities to those which his grantor might assert, and can often invoke the aid of a court of equity, when the latter would be remediless. Especially is this the case where conveyances of property have been made for the purpose of hindering or delaying creditors. In such case, the title of the purchaser in good faith will be protected against every one, even creditors, although that of his grantor, while the property remained, in him, would not be; and this upon the well established principle that the fraud can only be set up by the creditors against the parties to it, or those who purchased with knowledge of it, while none but those affected '.by the fraud can impeach the title. Now, in these cases, the complainants come into court as bona fide purchasers, and ask that the title which they purchased, and which was intended to be conveyed to them, and which they, and all parties, supposed, until after the death of their grantor-was conveyed to them, shall be assured to them; and for protection against the suits brought by the heirs and administrator of Aaron Thomas, founded upon the lately discovered mistake in the deed from Aaron to Alanson. I say lately discovered mistake, for I can not for a moment suppose, in the face of the evidence, that Aaron Thomas ever knew that his deed granted no land, and that he twice deliberately perjur, ed himself in swearing that the premises were Alanson’s, and that he had no title remaining in himself.
Had the deed from Aaron to Alanson perfectly described the lands intended to be conveyed by it, the latter would have held a perfect title as against all the world, except creditors thereby defrauded. Neither Aaron nor his heirs would be per*131mitted to allege any thing against it: Aaron, because, he would not be permitted to set up his own fraud to impeach the title. — .his heirs, because they succeed to no greater rights or equities than their ancestor had. While it is true, as a general, and as to parties an universal, proposition, that courts of equity will not interfere to enforce a fraudulent contract, nor to assist the parties to it in any manner, it is equally true that they will protect bona fide purchasers against all equities not superior, and assist them against all which are inferior. The equity of a party directly participating in a fraudulent transaction, or of his heirs or personal representative, whose claims can only be co - extensive with those of the ancestor, are most certainly inferior to those of one who has purchased in good faith, and paid thereupon a valuable consideration. Under such circumstances, the abhorrence of equity towards fraud yields to its care for the rights of the bona fide purchaser, and the superior equity of the latter overrides the inferior equity of the former. When the equities are all on one side, without the shadow of an opposing equity, such is most certainly the rule.
Now, as already suggested, were Aaron living, he could not be heard to allege his own fraud in opposition to the relief sought by these complainants. By parting with their money upon the faith of the transaction between him and Alanson, and in the supposition, by all parties, of a good title in Alanson, they acquired the superior equities, and the perfect right to have the mistake corrected, so far as their own purchases are concerned; and Aaron would be compelled to protect their titles thus innocently acquired. If the heirs have no greater rights than the ancestor, then the relief is equally attainable as against them.
It appears to be supposed that the relief sought, if granted, will be the enforcement in fact of the contract between Aaron and Alanson, and it is urged that such a contract, if proven, would be void, and consequently the relief is impossible. I think these grounds to be wholly untenable. In case a bill was filed by Alanson to correct the mistake, it would doubt*132less be incumbent upon him to show the contract, according to the terms of which he seeks to have the correction made; and this upon the ground that he is seeking to enforce the contract of conveyance which has been imperfectly executed. But the error in the present case consists in holding that the relief, if given, will operate as the enforcement of the contract as between them. It is upon no such foundation that these complainants stand in court. Their equities are altogether independent of, and superior to, those of Alanson, and depend upon no contract between him and Aaron, but upon the facts of an attempted and supposed conveyance from Aaron to Alanson, the surrender of possession by Aaron under it, the occupancy by Alanson, their purchase from him, and giving value, and the inducements to such purchase held out to them through the uniform recognition by Aaron of Alanson’s title and right to convey, and the former’s repeated oaths and asseverations to that effect. Even in case of a voluntary conveyance, accompanied by surrender of possession, a second or subsequent grantee would have a right to the remedy here sought, although no contract had ever existed. The equity is that of protection of a title innocently acquired — not, as would be the case if Alanson brought the bill, of enforcement of an agreement improvidently executed. If this be not so, the doctrine of protection to bona fide purchasers is an idle boast.
But if such contract were proven, would it be void so that no relief could be granted in this case ? So long as the contract was in fieri it could not be enforced by the parties to it, if made with a fraudulent intent; but when executed, it is valid as to all the world, except those creditors it was designed to defraud, and void as to them only upon their taking legal steps to annul it. In the present case, the contract, if any existed, must be held to have been executed, so far as these complainants’ interests are to be affected. In their behalf, the maxim of equity, that “ What is intended to be done, will be presumed to have been done,” will have its full force *133in order to enable them to correct tbe mistake in its performance.
The fraud, then, set up in this case being one which is only available to creditors, the heirs of Aaron Thomas can not be permitted to allege it in protection of their claims against the title of these complainants, nor to defeat any relief which may be necessary to perfect the evidences of that title. Nor can 'they avail themselves of it as an instrument of oppression to deprive these complainants of their honestly acquired property. If it can be made available to them for these purposes, it will only be on the ground that courts of equity hold fraud in such abhorrence that, rather than sustain any transaction however remotely tainted with it, they will refuse to interfere respecting it, but, standing by, will suffer a grosser fraud to be perpetrated upon innocent parties who may have the misfortune to acquire rights growing out of such transaction.
The decrees of the court below must be affirmed, with costs.
The court being thus equally divided in opinion, the decrees of the court below were affirmed.