(dissenting). I agree in the result arrived at by the Chief Justice. Such was my impression on the argument, and it has been confirmed by subsequent examination. It seems to me that the case of the. *680defendants has been made up out of a disregard of legal rules, and an assumption that is not proved. It is not disputed that the legal title is in complainant, and that it passed from James Barrett a long time ago. Defendants both claim whatever rights they have under levies which could only be enforced by selling the property as James Barrett’s. If they desired to attack the validity of any transfers made by him, it could only be done by filing bills in aid of their execution levies. A sale under execution not so aided would only pass such legal or equitable title as he professed, and he had no such title.
These defendants did not elect to proceed against the holders of the title under James Barrett to have the transfers declared fraudulent. It is the well-settled rule in regard to fraud that, unless complained of by proper proceedings, very promptly, the remedy is waived, and lost. Fraudulent dealings are not void, but voidable; and delay in attacking them would itself be fraudulent against third persons, if it did not preclude redress. If the title of complainant can now be attacked, the defendants would reap the advantage of all of he.r outlays for taxes, and in reduction of the mortgages and other expenditures which they would have been compelled to look after if they had proceeded promptly, and succeeded in their action. It is the right of the legal owner to have clouds cleared off, and a person who pretends to have a claim to avoid that title, which may be waived, and will not enforce it, is entitled to no regard.
But I do not think fraud appears. Complainant is shown, beyond question, I think, to be a purchaser in good faith; and if so she cannot be disturbed in her title. But I cannot find any satisfactory reason for believing that James Barrett conveyed with any fraudulent purpose. He has fallen into bad habits, but it appears affirm*681atively that he had! within a short period before the sale, been able to borrow between three and four thousand dollars on investment mortgages, which are always made in reliance of prompt payment of interest, and which were made by men known to be sagacious and careful. It is not shown that any bad use was made of that money, neither does it appear that James Barrett was concealing property, or scheming against his creditors, or that he had any strong motive for fraud. It is only by assuming that several persons, without any apparent rea. son, combined to cover up this maAs property, to cut off a couple of small claims, less than the annual outlay-necessary for interest and taxes, that any case for defendants can be made out. It seems to me to be straining probabilities, and assuming very unusual conduct, for no adequate reason, to find any fraud at all. I think complainant had a right to complain of the dog in the manger policy of defendants, and should have relief.