I concur in the opinion of the Chief Justice. It may be proper, also, to notice two other questions discussed on this argument. The judge charged the jury that “It is-necessary, for setting aside a sale as fraudulent in law against creditors, that both vendor and vendee should concur and unite-in the collusive device and contrivance; and whether they did so in this case is a question of fact for you to settle upon a-view of the whole transaction, there being no substantial evidence to that effect, as in the case of Arvis.” This was objected to as erroneous.
That an innocent purchaser of property, who has bought it in a fair and bona fide manner for a fair price, cannot be deprived of it because the object of the sale was to defraud his-creditors, is clear. The statute of frauds expressly so enacts. (Nix. Dig. 329, § 6.)* Taking into view other parts of the charge, I think this was its purport, and it must have been so understood.
If it appeared that by the expression, “there being no substantial evidence” of a collusive device and contrivance, the jury must have understood that there was no evidence in the case which would justify them in finding the sale.of half the property to one of the plaintiffs to be fraudulent. I think it would have been erroneous, for there certainly was *129■evidence which might have convinced the jury there was fraud in fact. But this could not have been so understood. In a previous part of the charge, the jury were told, “If the object of the vendor in making the sale was to defeat the claims of any creditors, and the object of purchasing was to enable the father of one of them to accomplish such purpose, then it was a sale to hinder, delay, and defraud creditors, and comes within the decision of the case of Owen v. Arvis, cited by the defendants’ counsel.” In disposing of the facts with .reference to this aspect of the case, you should bear in mind that Colwell heretofore had been a stranger to tlie vendor and his son, and that he paid cash for his interest, and that the other plaintiff has testified that when he purchased he did not know whether his father was in debt.
There can be no doubt, I think, that the question of fraud ■was submitted to the jury, and that they understood the phrase, “ no substantial evidence to that effect as in the ease of Arvis,” to mean, what was evidently intended, that the .transaction was not in law such a fraud as made the sale void, however innocent the parties may have been, as was held to be the rase in Owen v. Arvis, 2 Dutcher 28.
The damages assessed would seem to have been for the whole value of the property taken, and upon the supposition that the sale of one-half to Mulf'ord Cavalier was fraudulent and void. T think this would have been erroneous. In that case file other plaintiff, had he sued alone, and there was no plea in abatement, could only have recovered one-half the value. Bloxam v. Hubbard, 5 East’s 11. 407; Addison v. Overend, 6 Term 11. 766; Sedgworth v. Overend, 7 Term R. 279.
By the statute (Nix. Dig. 665, § 129,)* it is provided that the misjoinder of a plaintiff shall not be objected to, unless the defendant give previous written notice of such objection. This provision, I suppose, entitled the plaintiffs to such a verdict and judgment as either of them might have had if he had sued separately.
But no question as to what damages should be given if *130the sale to one was found to be fraudulent appears to have-been. made at the trial. The judge was'not asked to charge-as to this point, nor is there any error assigned upon it.
Rev.,p. 447, § 15.
Rev., p. 853 § 37.