Hone, appellant, and Henriquez, respondent, 13 Wend. 240

The following opinion was delivered: By the Chief Justice. The question is whether the deed of assignment was void absolutely, or voidable only upon the institution of proper proceedings. The vice-chancellor has argued the broad question whether an assignment like the present is void or voidable ; and comes to the conclusion that it is voidable only, and not void; and only to be avoided by proper proceedings, and a decree declaring it void.

The chancellor confines himself, in his opinion, to the facts of the case, and says : “ The defendant, Hone, having assented to the assignment by executing the same, (his assent,) it is not void as to him.” This is the true ground upon which the decision should rest, and upon this ground it cannot be controverted. Why is any assignment by a debtor fraudulent ? It is only so, because the effect of it is to delay or defeat creditors in the collection of their demands. It is a proceeding, therefore, adverse to the interests and wishes of the creditors.

But if all the creditors assent to such assignment, and agree voluntarily to take their proportion of the assigned property and discharge the debtor, there is no fraud in such a transaction, and of course such an assignment, executed with the assent of all the creditors, would be valid, not void.

The assignment in the case now before us was declared void as to the judgment creditors who filed their bill to set it aside ; but suppose those creditors had assented to the assignment as the appellant Hone did, would not they have been estopped from alleging any fraud, when, with a full knowledge of its effects, they had assented to it ? It surely could not be said to have been executed with intent to delay and hinder them in the collection of their demands, when they had agreed to its terms.

It is universally held, and so are all the cases, that deeds which are fraudulent and void as to creditors, are valid as between the parties. It is their agreement, deliberately entered into, and as between them, there is no fraud. They are not permitted to say that because it is invalid as to others, it is so as to them. The same reason does not exist. There was no attempt to defraud each other.

The same reason applies to all who are parties to it—to all who, being affected by it, have assented to it—and fully sustains his honor, the chancellor, in the decision made by him, and the ground upon which he placed the decision. Hone, in the case under consideration, cannot be permitted to deny that Hall and Swan were the assignees of Moffat, nor that they were not lawfully in possession of the goods in question. He was therefore bound, as between him and Hall and Swan, to account to them, and should have paid over the proceeds to the receiver.

It is well settled that the creditors acquire liens, and are entitled to priority of payment, in the order in which they had commenced their suits, 2 Paige, 568; and it is admitted that the receiver has not sufficient property in his hands to satisfy the judgments in favor of the creditors who have filed their bills in the court of chancery, to obtain payment from property which they could not reach by execution.

There is therefore no equity in favor of the appellant, which will justify him in withholding the proceeds of the goods sold by him, on the ground that he is a creditor of Moffat, He insisted that he acquired a lien on the 2d of November, 1832. As against judgment creditors, pursuing their legal remedies by creditors’ bills, he has acquired no lien whatever. It is true, as he insists, that the assignment was declared Void, but it was so declared as against the creditors who had filed their bill, not as against the parties j to it, or those creditors who had assented to it.

I do not mean to be understood as saying, that after the assignment had been declared void as to other creditors, the court would not, under a full disclosure of the circumstances under which a portion of the creditors had assented to it, declare it void also as to them, and permit them to'participate in the relief given to the other creditors, I only intend to say that, as to such creditors who assented to the assignment, it is at most merely viodable, not void. The decree of the chancellor should be affirmed, with costs.

The Court being unanimously of the same opinion, the decree of the Chancellor was accordingly affirmed.