The nature of the action and the facts, so far as material, are stated in the opinion.,

P. M. French for appellant. The trust contained in the assignment is void on its face as to creditors, and it necessarily follows that the trustee had no right to sell and the purchaser Fahy received no title as against the plaintiff, who is a creditor. (1 R. S. 727, §§ 49, 55, 60, 65; McPherson v. Rollins, 107 N. Y. 322; Kirsch v. Tozier, 143 N. Y. 396; Fellows v. Longyer, 91 N. Y. 326-330; Budd v. Monroe, 18 Hun, 317; Barnum v. Hempstead, 7 Paige, 568; Boardman v. Haliday, 10 Paige, 223; Hyslop v. Clarke, 14 Johns. 458; Wakeman v. Grover, 4 Paige, 22; 11 Wend. 225; Goodrich v. Downs, 6 Hill, 441; Curtiss v. Leavitt, 15 N. Y. 96; Booss v. Marion, 129 N. Y. 541.) The conclusion. of law that the defendant Fahy purchased the lands described in the complaint in good faith and for a valuable consideration and has good title thereto as against the plaintiff is erroneous. (2 R. S. 137, § 1; 4 R. S. [Sth ed.] 2592; Booss v. Marion, 129 N. Y. 541; Hulbert v. Davies, 2 Keyes, 97; Stearns v. Gage, 79 N. Y. 102; Parker v. Conner, 93 N. Y. 118; Bush v. Roberts, 111 N. Y. 278; Farley v. Carpenter, 27 Hun, 359; Gerard's Titles to Real Estate [3d ed.], 657; Read v. Gannon, 50 N. Y. 345; Johnson v. Thwedtt, 18 Ala. 741; Ward v. Trotter, 3 B. Monr. 4, 5; Palmer v. Giles, 5 Jones Eq. 78; Johnston v. Harvey, 2 P. & W. 92; Zerbe v. Miller, 16 Penn. St. 498; Arper v. Baze, 9 Minn. 98; D. M. Co. v. Laird, 17 S. W. Rep. 188; 13 Eliz. chap. 5; Twynes' Case, 3 Coke, 80; 1 Smith L. C. 1; Cardogan v. Kennett, 2 Cowp. 434; Hamilton v. Russell, 1 Cranch, 316; Meeker v. Wilson, 1 Gall. 419; 1 Black. Com. 88; Bank of U. S. v. Lee, 13 Pet. 118; 75 Ala. 386; 76 Ala. 120; 78 Ala. 176; Wilhoyte v. Udell, 9 South. Rep. 550; Zeigler v. Carter, 10 South. Rep. 260; Smith v. Collins, 10 South. Rep. 334 ; Ark. Dig. $$ 3374, 3375; 31 Ark. 251; Singer v. Jacobs, 11 Fed. Rep. 559; Dyer v. Taylor, 7 S. W. Rep. 258; A. G. Commission Co. v. Pearson, 55 Ark. 759; Tompkins v.

Sprout, 55 Cal. 31-37; Benton v. Jones, 8 Conn. 189; Knower v. C. C. Co., 57 Conn. 202; Partello v. Harris, 26 Conn. 480; Shauer v. Alterton, 151 U. S. 608; Livingston v. Wright, 88 Ga. 33; Hanchett v. Kimbark, 118 Ill. 121; Boies v. Henney, 32 Ill. 130; R. & R. Co. v. Smith, 43 Ill. App. 400; Kellogg v. Ahern, 48 Iowa, 300; Dunn v. Wolf, 47 N. W. Rep. 887; Meibergen v. Smith, 25 Pac. Rep. 881; Walker v. Collins, 50 Fed. Rep. 738-743; Gallober v. Martin, 33 Kans. 255; Wafe v. Baule, 46 Kans. 597; Wood v. Elliott, 7 S. W. Rep. 624; Grover v. Grover, 3 Md. Ch. 35; Biddinger v. Wiland, 10 Atl. Rep. 203; Abrams v. Sheehan, 40 Md. 447; Foster v. Hall, 12 Pick. 99; Green v. Tanner, 8 Metc. 411; Sleeper v. Chapman, 121 Mass. 408; Carroll v. Hayward, 124 Mass. 120; Morris v. Aldridge, 130 Mass. 578; Mansfield v. Dyer, 131 Mass. 200; Hough v. Dickinson, 58 Mich. 94; Allen v. Stingel, 54 N. W. Rep. 800; Pierson v. Shifer, 52 Mo. App. 273; Kitchen v. R. R. Co., 69 Mo. 265; Leavitt v. La Force, 71 Mo. 356; Roan v. Winn, 4 S. W. Rep. 736; Bollman v. Lucas, 36 N. W. Rep. 473: Temple v. Smith, 13 Neb. 513; Banks v. 0. B. W. Co., 46 N. W. Rep. 251; Everett v. Reed, 3 N. H. 55; Robinson v. Holt, 39 N. H. 557; Seavy v. Dearborn, 19 N. H. 360; Atwood v. Impson, 20 N. J. Eq. 150; Moore v. Williamson, 15 Atl. Rep. 587; Tatum v. Green, 21 N. J. Eq. 364; Holladay Case, 27 Fed. Rep. 830; Aultman v. Utsey, 34 S. C. 559; Dodd v. Gaines, 82 Tex. 429; Blum v. Simpson, 66 Tex. 86: Traylor v. Townsend, 61 Tex. 146; Freiberg v. Freiberg, 74 Tex. 126; Wells v. McMahon, 18 Pac. Rep. 74; Hopkins v. Langton, 30 Wis. 379; Avery v. Johan, 27 Wis. 246; Bartles v. Gibson, 17 Fed. Rep. 293; Hooser v. Hunt, 65 Wis. 72; Rindskopf v. Myers, 87 Wis. 80; Baker v. Bliss, 39 N. Y. 70–73; Williamson v. Brown, 15 N. Y. 362; Stearns v. Gage, 79 N. Y. 102; Wait on Fraud. Conv. 491-505; Bush v. Roberts, 111 N. Y. 288; Jacobs v. Morrison, 136 N. Y. 105; Dung v. Parker, 52 N. Y. 494; Baltzen v. Nicolay, 53 N. Y. 467.) The plaintiff is a party aggrieved by the fraudulent assignment in question,

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and, therefore, can maintain this action. The referee so found although he finds that he has no cause of action against the defendant Fahy. (R. W. Co. v. Fielding, 101 N. Y. 504; Crook v. Rindskopf, 105 N. Y. 488.)

The plaintiff

Edward F. Wellington for respondents. insists that this assignment was void upon its face. Therefore, that Kinney took no title and could convey none to Fahy. This is untenable. (Crook v. Rindskopf, 105 N. Y. 482; Turner v. Jaycox, 40 N. Y. 475; R. W. Co. v. Fielding, 101 N. Y. 510; Dimond v. Hazard, 32 N. Y. 65; 2 R. S. chap. 7, tit. 3, § 1; N. B. & D. Bank v. Hubbell, 117 N. Y. 397; Knower v. C. N. Bank, 124 N. Y. 552; Murphy v. Briggs, 89 N. Y. 446.) Fahy purchased for a valuable consideration, and his title can only be impeached by proof that he had actual notice of the fraud rendering void the title of his grantor. Actual notice means actual knowledge. (2 R. S. chap. 7, tit. 3, § 5; Starin v. Kelly, 88 N. Y. 421; Zoeller v. Riley, 100 N. Y. 108; Stearns v. Gage, 79 N. Y. 102; Parker v. Connor, 93 N. Y. 125; Bush v. Roberts, 111 N. Y. 282; Dudley v. Danforth, 61 N. Y. 623; Farley v. Carpenter, 27 Hun, 360; Jacobs v. Morrison, 136 N. Y. 105; Dorr v. Beck, 76 Hun, 540; Manning v. Beck, 129 N. Y. 1; Murphy v. Briggs, 89 N. Y. 446, 553.) If Fahy had purchased with full knowledge of the objectionable clause in the assignment and of the fact that there were personal debts of the assignors, and had understood the legal effect of such a situation, his title would still be good. (Ames v. Blunt, 5 Paige, 13; N. B. & D. Bank v. Hubbell, 117 N. Y. 397; Knower v. C. N. Bank, 124 N. Y. 552.)

BARTLETT, J. The plaintiff in this action seeks to set aside as fraudulent the general assignment made by the defendants Marion & Co. to defendant Kinney for the benefit of their creditors, together with certain conveyances of real estate made by the assignee to the defendant Patrick Fahy, the latter having bid in the property at public sale.

N. Y. Rep.] Opinion of the Court, per BARTLETT, J.

The referee has found, as conclusions of law, that the assignment is fraudulent and void on its face as against the plaintiff; that defendant Fahy purchased the land described in the complaint in good faith, and for a valuable consideration, and has good title thereto as against the plaintiff, and the complaint as to him should be dismissed.

The general assignment was executed January 31st, 1887, and was declared by this court, at the January term, 1892, fraudulent and void upon its face as to the plaintiffs then attacking it on the ground that it devoted a part of the partnership property to the payment of individual debts. (Booss v. Marion, 129 N. Y. 536.)

About four months after this court handed down its decision this action was commenced.

The referee finds that the plaintiff in this action in July, 1889, signed a request to the assignee to appeal from the judgment of the Supreme Court in the Booss action, with knowledge of the facts constituting the fraud for which the assignment was set aside, but held it did not constitute an estoppel or election of remedies so as to preclude him from maintaining this action.

As the assignee has not appealed and the defendant Fahy is responding to the plaintiff's appeal we do not deem it necessary to pass upon this question, as we have reached the conclusion that so much of the judgment below as the plaintiff has appealed from must be affirmed.

The plaintiff urges substantially two reasons in support of his contention, that the conveyances of the real estate made by the assignee to the defendant Fahy were fraudulent and void and should be set aside. As to the first point, plaintiff argues that the general assignment being void on its face, the trustees had no right to sell and the purchaser Fahy received no title as against the plaintiff, who is a creditor.

The counsel for the plaintiff misapprehends the force and meaning of the fact that a general assignment is fraudulent and void on its face. It has been frequently held that, as between

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the parties, a general assignment, fraudulent as to creditors, is valid, and is only voidable at the suit of a creditor who seeks to have it declared fraudulent and void as to him. (Knower v. C. N. Bank, 124 N. Y. 559, 560.)

The plaintiff in this action was in no way benefited by the final judgment in the Booss action save as it made his attack upon the assignment, if he concluded to make it, easy and effectual. It was still incumbent upon plaintiff, if he wished to obtain a lien upon the assigned property in the hands of the assignee, to recover his judgment at law, secure the return of the execution unsatisfied, and begin his action in equity to set aside the general assignment.

The lien thus secured would be enforced when final judg ment was rendered in his favor.

The present action is precisely such a one as we have described, and wholly inconsistent with plaintiff's contention that the assignment being void upon its face no title vested in the assignee. The plaintiff has recovered a judgment which declares the general assignment to be fraudulent and void on its face as to him.

A general assignee is competent to deal with the assets of the estate under an assignment fraudulent and void upon its face; and if he pays money to bona fide creditors of the assignor he will be protected, provided he does it in good faith and before any other creditor has obtained a lien upon the money. (Nat. B. & D. Bank v. Hubbell, 117 N. Y. 397.)

This is for the reason that he is only doing what the assignor might have done had no assignment been executed; in other words, the assignment is valid as between the parties.

It, therefore, follows in the case at bar that the sale of the real estate to defendant Fahy by the general assignee must stand as to plaintiff unless he can show that Fahy was not a purchaser for a valuable consideration without notice.

As to his second point plaintiff insists that he is hindered, delayed and defrauded by the general assignment within the meaning of the statute concerning fraudulent conveyances