John'son, J.
• The action was brought by the plaintiff to recover the price and value of a quantity of timber and lumber sold and delivered by him to the defendant. The only question in the case is whether the matters offered in evidence on the part of the defendant were material, and constituted any valid defense to the. action. The offer was, in substance, to prove that the defendant had paid the amount to the sheriff to apply in satisfaction of an execution in his hands, issued upon a judgment in favor of Field & Havens, against Stevens & White, upon being indemnified by Field & Havens against the claims of the plaintiff. There is no pretense that the defendant did not purchase the property of the plaintiff, nor that it did not acquire a perfect undisputed title thereto as against all the world; nor that the pjlaintiff did not sell in his own right, upon the defendant’s *548request and promise to pay him, and not as the agent of Stevens & White. Of course paying and satifying an execution in favor of third persons against strangers to the bargain and sale of the timber could not, prima facie, satisfy the plaintiff’s demand against the defendant. But the defendant further offered to prove that in the action of Field & Havens against Stevens & White, an attachment was issued and a copy thereof served upon the defendant by the sheriff, who claimed to have attached the debt due from the defendant to the plaintiff in the defendant’s hands. And it was further proposed to prove that the plaintiff bought the property sold to th.e defendant, of Stevens .& White, and that the transaction between them was entered into for the purpose of defrauding the creditors of Stevens & White, and that Field & Havens were then- creditors at the time the plaintiff purchased. This was all excluded, upon the ground, amongst others, that the defendant had no standing in court which would enable it to litigate the question of fraud in the sale from Stevens & White to the plaintiff, being no creditor of the plaintiff’s vendors, and standing in no legal relations either with them,. or their creditors Field & Havens, but simply a debtor of the plaintiff upon a bargain and sale which no person could assail as in any respect invalid.
It must be admitted, for the purpose of determining this question, that the purchase by the plaintiff was in fact fraudulent and void as respects the creditors of Stevens & White. But the defendant was not their creditor; nor did it become, in' any sense, by its purchase of the plaintiff, the debtor of Field & Havens, legally or equitably. It comes here as a simple volunteer, to litigate a question in which it has, and can have no possible interest, having first taken security against the consequences of its free encounter. The defendant has no assignment, .even, of Field & Haven’s judgment, and nothing to base their claim to a defense upon, other than the mere voluntary payment of the debt to the sheriff, which Stevens & White owed to Field & Havens.
*549It is impossible to maintain, successfully, the position assumed by the defendant, that by the service of the attachment, Field & Havens acquired any lien upon, or interest in, this demand due from the defendant to the plaintiff. Their action was an action at law, and the attachment could only be levied upon or attached- to property or things in action which belonged to the defendant in that action. Such are the terms of the warrant of attachment. By it the sheriff is required “ to attach and safely keep all the property of such defendant within his county, or so much thereof as may be sufficient to satisfy the plaintiff's demand,” &c. (Code, § 231.) This debt was in no sense the property of the defendant in that action, legally or equitably. The purchase by the plaintiff having been void as to the creditors of his vendor, the property might, I suppose, have been attached while it remained in his hands, and enough of it sold upon the execution to have satisfied the judgment, but the residue, had any remained, the sheriff would have been bound to restore to the plaintiff. (Waterbury v. Westervelt, 9 N. Y. Rep. 598.)
' The reason of this is that the statute only makes the sale void, in such a case, as to the creditors of the vendor, leaving it perfectly valid and effectual as between the parties. The sale being void as to creditors, the property may be seized by process of attachment or execution in a legal action in the hands of the fraudulent purchasers) at the suit of such creditors, the same as though no sale had ever been made. The rule is different in regard to' real estate, especially where the purchase money is furnished by the debtor and the title taken in the name of another. There a creditor can only proceed in an equitable action after having exhausted his remedy at law. 'He can not, as in the case of a fraudulent transfer of personal property, seize and sell the land upon execution, or attach it in a legal action. (McCartney v. Bostwick, 31 Barb. 390. Garfield v. Hatmaker, 15 N. Y. Rep. 475. Wood v. Robinson, 22 id. 564.) The case of Wait v. Day, *550(4 Denio, 489,) which held that a judgment attached as á lien, and the land might be sold on execution in favor of creditors in the hands of the fraudulent grantee, was distinctly overruled by the Court of Appeals, in Garfield v. Hatmaker, (supra.) In the latter case Comstock, J. says “ There is no interest, legal or equitable, in the debtor, and therefore nothing to which a judgment and execution can attach; but instead of this, a pure trust in favor of the creditor, which the statute impresses upon the legal estate in the hands of the grantee in the conveyance, and which can be enforced in equity only.”
In the case before us, though the plaintiff's purchase was void as to the creditors of his vendors, and the property might have been seized and sold upon execution in their favor while in that condition, the sale by the plaintiff to the defendant was perfectly valid, and gave the defendant a clear title to the p>rop>erty.- 'There was no offer to show, nor any pretense, that the defendant had any notice of the fraud which rendered void the title of the plaintiff in respect to the creditors of his vendee. Their title was therefore unimpeachable. (2 B. 8. 137, § 5.) Stevens & White had then no interest in the property transferred, and no interest whatever in the transaction, or in the demand created by the transfer and sale, legal or equitable, and there was nothing in such demand to which, in an action at law, the claims of the creditors of Stevens & White, or any process or judgment in such action, could possibly attach. Here had been a valid sale by a fraudulent purchaser, and there was no right, legal or equitable, remaining in the original owner and debtor, which his creditors could attach. Because, if it be granted that an attachment, as a provisional remedy in an action at law, may take and attach to things which, could not be seized and sold by virtue of an execution, still it must be something which belongs to the defendant in the action. It must be “the property of such defendant.” If the thing attempted to be attached and held be something in which the - debtor *551has no interest whatever, legal or equitable, and in the nature of a resulting trust in favor of his creditors only, it is impossible to reach it, either by attachment or execution, in an action at law by a creditor against such debtor. Such a proceeding, I venture to say, was never heard of in a legal action, and its novelty at this day makes very strongly against it. By section 232 of the Code, the sheriff is to execute the warrant of attachment in all respects in the manner required of him by law in the case of attachments against absent debtors, and shall, subject to the direction of the court, or judge, collect and receive into his possession “all debts, credits and effects of the defendant.” This was precisely what the sheriff was authorized and required to do, under the Revised Statutes, in the case of attachments against absconding, concealed and nonresident debtors. He was required to attach “ all the-real estate of such debtor, and all his personal estate, including money and bank notes, except articles exempt from execution,” and to “ take into his custody all books of account, vouchers and papers relating to the property, debts, credits and effects of such debtor, together with all evidences of his title to real estate.” (2 K 8. 4, § 7.) By section 8 the sheriff was required to make an inventory of all the property so seized, and, under the direction of the officer issuing the attachment, to “ colléct, receive and take into his possession all debts, credits and effects of such debtor, and commence such suits and take such legal proceedings in the name of such debtor, as may be necessary for that purpose.” By the Code, (§ 232,) the sheriff is authorized to take legal proceedings, either in his own name or in the name of the defendant, as may be necessary, to collect the demands due to the defendant and get frill possession and control of his effects. The two proceedings are analogous in all respects, and the design was to enable a creditor, by a proceeding at law, to seize and take whatever property his debtor might have belonging to to him, in whatever condition or form it might then be, for the purpose of satisfying the demand. Mere resulting trusts *552in favor of creditors, in which the debtor has no interest whatever, are in no conceivable sense his property, and consequently can not be attached in an action at law against the debtor, or by an attachment against him as an absconding or non-resident debtor. The service of the attachment^ therefore, upon the defendant-, in the action of Field & Havens against Stevens & White, was a mere nullity, and attached to nothing. Field & Havens acquired no rights by it, nor was the defendant thereby placed under any obligation or liability to them, or absolved in any respect or degree from its liability to the plaintiff upon its promise. The defendant comes, therefore, as a mere naked volunteer, to litigate matters in which it has no concern, having no set-off or counterclaim against the plaintiff, and standing in no legal 'privity either with Field & Havens or with Stevens & White.
If Field & Havens, as creditors of Stevens & White, had any claim against any one, other than their debtors, it was against the plaintiff as their trustee of a resulting trust. The statute does not create this trust, as it does in the case of real estate, where the consideration is paid by the debtor and the conveyance taken by another, (1 B. S. 747, § 57;) but it is the mere creature of equity, which will be raised in favor of creditors of the debtor, merely, to prevent them from being defrauded of their just claims upon their debtor’s property. This equity will do in all cases where the conveyance is not absolutely void, so as to vest no title in the purchaser. Where the fraudulent purchaser takes a title good as against the grantor, equity will fasten a trust upon it, in favor of the grantor’s creditors, in his hands, and make him trustee for them, to the extent and value of such property. (Law of Trusts and Trustees, 96.) This is not a trust in favor of the vendor of the property, and debtor, in any respect, but merely in favor of his creditors, who are alone the beneficiaries. But a bona fide purchaser, either from the fraud-lent vendor or the fraudulent vendee, is in no sense such trustee. The sale being legal, and in all respects valid as *553to him, equity can fasten no trust upon it in favor of any one. The defendant, therefore, was no trustee for Field & Havens, and they not being cestuis que trust of the defendant, had no legal or equitable ground on which they could have proceeded, even in equity, to recover this fund from it. The plaintiff was in equity their trustee, at all events while he had the property in his hands thus fraudulently purchased, and I am inclined to think that he would be of the avails, also, in his hands, which in equity would stand as the. property. But to reach such avails in his hands they must unquestionably proceed in equity against him, upon the plainest principles. If he had the property in specie, they might seize it and sell it upon execution; but if he had parted with it to a bona fide purchaser, the resulting trust in their favor might fasten upon the avails, to be reached in an action in equity only. In such action they might have compelled him to assign his claim for the value of the property, against the defendant, and in case he was insolvent they might in such a proceeding in equity have joined the defendant for the purpose of enjoining it from paying to the plaintiff. But the plaintiff alone, in such a case, would be then- trustee, and the trust be fastened upon the chose in action in his hands. It will thus be seen that there is no ground upon which Field & Havens could proceed, even in equity, directly against the defendant to charge it with the fund in their behalf, or to make it accountable to them for it. This has never been done against a bona fide purchaser, purchasing without notice of the intended fraud of his vendor, except in the single case of such a purchase made for a grossly inadequate price, from an insolvent vendor who sold at such inadequate price with intent to defraud his crditors. In such a case equity fastens a trust upon the property purchased, in the hands of the purchaser without notice of the fraudulent design, to the extent of the fair value of the property, over and above the consideration paid, in favor of the creditors' of the insolvent vendor. (Boyd v. Dunlap, 1 John. Ch. 478. Bigelow v. *554Ayrault, ante, p. 143.) But this is no such case: The defendant, for aught that appears, and as the presumption is, paid or agreed to pay the full value of the property. It had therefore no ground to stand upon in this action, upon which it could litigate the question presented by it. To have allowed it would have been to introduce a practice altogether new and unheard of, and tended to introduce uncertainty and confusion in regard to legal and equitable rights and remedies. The idea suggested in behalf of the defendant, that the plaintiff may be treated as the agent of Stevens & White in selling the property to the defendant, finds no countenance in the case, whatever. • The relation of principal and agent is purely a conventional relation, founded in agreement, express or implied, and the question was not raised by the defendant in any offer made by him. Equity creates no such relation when none exists by compact. It creates trustees and raises trusts, in furtherance of justice, but not agents or agencies. The whole case jn-oceeded upon the theory that the plaintiff, in the sale to the defendant, acted for himself and in his own behalf, and not for another. If he stood in any legal relation to the creditors of his vendor, it was that of their trustee in equity of the resulting trust.
I am of opinion, therefore, that the defense offered Was properly excluded, and that a new trial should be denied,
Wblles, J. concurred.
E. Darwin Smith, J.
(dissenting.) The defense, as presented in the defendant’s answer and in the proof offered in support of it at the circuit, having been 'overruled by the circuit judge, the question presented is, whether if the defendant had fully proved what he proposed and, offered to do, it would have constituted any defense in the action. It must therefore be assumed that Stevens & Go. were the original owners of the timber in question; that they sold it to the plaintiff; and that such sale was fraudulent as against *555their creditors. The defendant must, I think, by its offer be- deemed to have proposed and offered to prove, in effect, that the plaintiff Was a particeps criminis in the fraudulent purpose of Stevens & Co. to hinder and defratid their creditors, and was merely an agent or tool of theirs, used to conceal and cover up their property and consummate such fraud. The sale, in this view of it, while it would be valid as between Stevens & Co. and the plaintiff, would be void as to their creditors, and no title could be acquired through it as against such creditors, except by a bona fide purchaser. The title having thus passed, as between them, from Stevens & Go. to the plaintiff, he could undoubtedly give a good title to it to the defendant, and it doubtless would have acquired a valid title to the timber if it had paid the purchase money therefor to the plaintiff before notice of the fraud. But the sale being fraudulent as against the creditors of Stevens & Co., such creditors could doubtless have followed the property as far as they could trace and identify it5 and if it had been found in the defendant’s hands in specie it could have been claimed and seized by the, attaching creditors as the property of Stevens & Co. The plaintiff would, in the eye of the law, in this aspect of the question, have been regarded as the mere fraudulent agent or conduit through which the title passed from Stevens & Co. to the defendant. No doubt, I think, could have existed on this point, if the property had been found undisposed of and unconverted in the hands of the defendant, by the sheriff, Upon the execution of the attachment. The defendant unquestionably acquired the title to this timber, but as it had not paid the purchase money therefor-, it was a mere defeasible title, and it could not have held the proprety as against the creditors of Stevens & Co. It owed the plaintiff the price of the timber. This debt, I think, must be deemed a substitute in its hands for the timber, and liable to bo attached, to the same effect as if it had been the timber in specie, itself, at the time of the service of the attachment. *556I think the rule well established, and a sound one, that when property has been feloniously, tortiously or fraudulently obtained, whenever the owner or creditor is entitled to reclaim, seize or attach the property itself, if found and identified, the products of or the proceeds or substitute for, the orignal property or thing still follow the nature of the property or thing itself; and this right to take it as a substitute for such thing remains as long as the property can be traced, and only ceases when the subject is turned into money and mixed and confounded in the general view of the same description of property, or its identity destroyed. (Taylor v. Walsh, 1 Maule & Sel. 562. Scott v. Luman, Willes, 400. Whitcomb v. Jacob, Salk. 160. 1 Atkins, 173. 3 Burr. 1369. Copeland v. Collant, 1 P. Wms. 320. Vial v. Michalet, 4 Wash. C. R. 105. 6 Hill, 425.)
The money owing by the defendant for this timber would be clearly considered in equity as a substitute for the timber, and as a debt due to Stevens & Go. and would be held upon a creditor’s bill against them and the plaintiff as equitable property, or applied in payment of their debts. And I can see no reason why a lien was not created upon it, and why it was not bound by the attachment, upon the service thereof in the suits of Havens & Field v. Stevens & Go. Upon an attachment under the Code the sheriff is required to attach and safely keép all the property of the defendant, in his county. He is to receive and take into his possession all debts, credits and effects of the defendant. The attachment reaches all kinds of property, whether legal or equitable, and I can not see why it does not reach all equitable property as • such, as a creditor’s bill or other proceeding to reach the equitable property of & judgment debtor upon supplemental proceedings after executioti returned unsatisfied. Treating the plaintiff as a mere agent of Stevens & Go. to sell their property, and he is nothing more, if the sale to him was fraudulent, the debt created on the sale by the plaintiff to *557the defendant, of such timber, is, in equity at least, and I think at law, also, a debt to his principals, Stevens & Co., and was as such, properly seized and levied upon under the attachment.
The only question which remains is, whether the defendant, having purchased the timber of the plaintiff and contracted to pay him therefor, can voluntarily pass by him and pay the price to the creditors of Stevens & Co. upon the assumption that the plaintiff’s title was fraudulent, and that such creditors were legally entitled to the proceeds or price of such timber. The relation between the plaintiff and the defendant is that of debtor and creditor. It is like the relation between bailor and bailee.
The defendant is primarily bound to pay the plaintiff for the property which it has purchased of and received from him. The attachment served upon it did not change this relation, or its rights or duties. It was, as between them, like a notice, or at most like an injunction, forbidding it to pay the debt to the plaintiff. It could not, after service of the attachment, have paid the plaintiff, except at the peril of having to pay the debt a second time to the creditors, pending the attachment suit. The service of the attachment, while—if the sale from Stevens & Co. to the plaintiff was" fraudulent—it created a lien upon this debt, yet did not confer upon the defendant the right to assume that such was its legal effect, or that the plaintiff was not at the time of the sale the legal owner of the timber and had the power to give, and had conveyed to it, a valid legal title to said property. But although this is, primarily prima facie so, it is not conclusive upon the rights of the defendant. If it was satisfied that the plaintiff had no valid title to the timber in question; that he obtained possession of it by fraud ; that he was the mere agent or tool of Stevens & Co. to help them conceal and cover up the property, and keep it from their creditors, and that the attaching creditors had the valid legal title to such property, I think it might at its own risk and *558peril recognize such title, and pay the debt to the sheriff, or to the attaching creditor. Of course, the attachment proceedings are no justification for such a course, and do not of themselves, by any legal force pertaining to them, afford the slightest defense to the defendant for making such payment. But the defendant might assume that they were valid, and take upon itself the burden of proving such validity and the rightfulness of the title of such creditors to the timber in question, and its substitute, the debt incurred therefor and still subsisting. And I think it was in this view entitled to give the proof offered for that purpose.
This rule, I think, is established by the following oases : King v. Richards, (1 Wheat. 418;) Hardman v. Willoch, (9 Bing. 378;) Bates v. Stanton, (1 Duer, 45.)
In principle, I think the rule precisely the same as between bailor and bailee. In King v. Richards, (supra,) Judge Kennedy says: “It would be repugnant to every principle of honesty to say that, after the right owner had demanded the goods of the bailee, the latter shall not be permitted, in an action by the bailor against him, to defend against his claim by showing clearly and conclusively that the plaintiff acquired the possession of the goods either fraudulently, tortiously or feloniously, without having obtained any right thereto.” The same view is taken, in substance, by Judge Buer, in Bates v. Stanton, (supra.) In all cases, I think, where a man finds himself in possession of personal property to which there are several claimants, he may. determine at his peril which is the true and rightful owner of such property, and may deliver the same to him, or he may pay the price of such property to the claimant, as the defendant did in this case. The peril he runs in such case is that he takes the burden upon himself, if sued by any other claimants of such property, of establishing the fact that he delivered the same, or, paid the purchase money therefor, to the lawful owner thereof; and proof of such fact will constitute a complete .defense to any such action • against him. In accordance with this view, I *559think, the defendant was entitled to give in evidence the facts it offered to prove at the trial, and that such proof was erroneously overruled. There should, therefore, be a new trial, with costs to abide the event,
[Monbob General Term,
September 3, 1866.
Hew trial denied.
Welles, JE. D. Smith and Johnson, Justices.]