hold it as a general rule that an alienation pending a suit is void." This doctrine is equally well settled in America, as will be seen in the cases of Murray v. Ballou, 1 Johns. Ch. 580; Murray ▼. Lylburn, 2 Id. 445; Murray v. Blatchford, 1 Wend. 593 [19 Am. Dec. 537]; Swett v. Poor, 11 Mass. 549, and the authorities there cited.

From the views already expressed it follows that the complainant was neither a creditor nor a purchaser, within the meaning of the statute, but stood toward the parties charged to have contracted in fraud as a mere stranger, and as such, it is very clear, had no right to interfere with the contract made between them.

It is contended, however, that this objection comes too late, that the defendants, by answering the bill and progressing to final hearing, have waived their right to object to the jurisdiction of the court or the sufficiency of the equity contained in the bill. True, as a matter of practice, it is usually best, when the bill is defective, to present the defect to the court by demurrer, and for this obvious reason, that it is not every ground of demurrer that can be taken advantage of on the final hearing of the cause, no more than it would be cause in arrest of judgment at common law, for each ground of demurrer which might have been well assigned to the declaration. But then there are vital defects touching the merits of the cause of action in either chancery or common-law proceedings, which, though not formally presented before, will not be overlooked upon the final hearing.

In chancery there is a practice allowable, and for many purposes quite convenient, which is, to raise and reserve the question of law in the answer, thereby making the answer a response to the facts of the case, whilst it questions the sufficiency of the facts to afford equitable redress. This practice is more allow able, when it is remembered that, where there is cause of demurrer, which may not go to the whole equity of the bill, it becomes necessary to answer and demur to the bill at the same time, thereby involving a question not unfrequently difficult in practice to determine, the precise point at which the answer and demurrer meet, so as to occupy distinct ground, and at the same time form a response to the whole bill. 2 Dan. Ch. Pl. & Pr. 819, fully sustains this practice. He says: "With respect to claiming the same benefit by answer that the defendant would have been entitled to if he had demurred to the bill, or pleaded the matter alleged in his answer in bar, it is to be noticed that it is only at the hearing of the cause that any such benefit can

be insisted upon; but that at the hearing of the cause the defendant will in general be entitled to the same advantage of this mode of defense that he would have had if he had adopted the more concise mode of defense by demurring or pleading."

In the case of Anderson v. Roberts, 18 Johns. 535 [9 Am. Dec. 235], the court says: "The defendants have not precluded themselves from making the objection they have insisted in this answer on the trial and verdict at law as precluding the respondents." In the case of Kendrick v. Arnold, 4 Bibb, 235, where a bill was filed alleging that complainants were bona fide purchasers at public auction of certain slaves, that subsequently the slaves had been seized by the sheriff and a sale was about being forced contrary to law; to which bill the defendant, instead of demurring, answered denying the validity of defendant's purchase; the court decided that as there was no sufficient equity in the bill it should, at the final hearing, have been dismissed.

These authorities abundantly show that where the complainant presents a case clearly cognizable in a court of law, or where defendant answers the allegations of the bill, reserving the questions of law to be considered on the final hearing of the case-which the defendant has done in this instance-should the court on final hearing be of opinion that there is not a case in equity made out such as will entitle the complainant to relief, it should at once dismiss the bill. For as the allegations themselves are not sufficient to uphold a decree for the complainant, there could be neither necessity nor propriety in proceeding to investigate the facts in proof-their office being to sustain not supply omission or aid defective pleadings.

Entertaining these views, it becomes wholly unnecessary to examine the evidence in regard to fraud, since we have decided that the complainant has not shown himself to be either creditor or purchaser under such circumstances as will permit him to question the alleged fraud, but must from his own showing he held as a stranger; and as such will not be heard to complain of the fraudulent conduct of third persons, in whose conduct he has failed to show himself interested.

There was no error in the decision of the circuit court dismissing the bill, so far as Anthony was concerned: and although an interlocutory decree was rendered against Royster and Percifull, who failed to answer, it will be perceived that the whole charge of fraud was directed at Anthony, and the decree sought to be rendered was to affect him. In the deed, made for the

benefit of Percifull as security, it is not pretended that he was not such, or that he should not have been thus secured. Royster was introduced as a mere creature confederated with Anthony, but who had no interest to be affected by the decree. It is evident therefore that the defense of Anthony was, in effect, a defense to the whole bill. But suppose it not to have been such, the interlocutory decree supplied no defect in the allegations of the bill; it merely admitted the truth thereof by failing to respond. The allegations so admitted do not, in our opinion, warrant a decree against them. The bill was properly dismissed as to them also.

Let the decree be affirmed.

FRAUDULENT OR VOLUNTARY CONVEYANCE IS BINDING UPON PARTIES TO IT: Choteau v. Jones, 50 Am. Dec. 460, and note referring to previous cases in this series; see also Britt v. Aylett, infra.

EQUITY DOES NOT COMMONLY INTERFERE IN Behalf of CREDITOR until he has perfected his right so far as it can be done at law: Rice v. Barnard, 50 Am. Dec. 54.

CREDITORS ONLY CAN ATTACK CONVEYANCE AS Fraudulent: McClenney v. McClenney, 49 Am. Dec. 738. The principal case was cited to the point that one who is not a creditor is in no condition to set aside an alleged fraudulent conveyance of a debtor, in King v. Clay, 34 Ark. 300.

RIGHT OF CREDITOR TO ATTACK FRAUDULENT CONVEYANCE WITHOUT FIRST OBTAINING JUDGMENT: See Comstock v. Rayford, 40 Am. Dec. 102; Williams v. Tipton, 42 Id. 420.

NOTICE OF FRAUDULENT CONVEYANCE DOES NOT RENDER IT VALID as against a subsequent purchaser: Lewis v. Love, 38 Am. Dec. 161.

OBJECTION TO JURISDICTION OF EQUITY, WHEN MUST BE MADE and when too late: See Henderson v. Mitchell, 21 Am. Dec. 526; Reese v. Smith, 13 Id. 599; Chambers v. Chalmers, 23 Id. 572; Livingston v. Livingston, 8 Id. 562; Head v. Gervais, 12 Id. 577.

BRITT V. AYLETT.

[11 ARKANSAS, 475.]

IT IS NOT SUFFICIENT FOR PLAINTIFF IN REPLEVIN TO HAVE CLEAR Legal TITLE to the property in controversy, but he must also be entitled to the immediate possession in order to warrant a recovery.

CONTRACT OF HIRING IS NOT EXTINGUISHED BY SALE of the property by

the lessor to the hirer which was fraudulent and void, as a contract fair and lawful in itself can not be affected by one which is void as against the policy of the law.

SALE FRAUDULENT AS TO CREDITORS IS BINDING UPON PARTIES TO IT. CIRCUIT COURT CAN NOT DETERMINE WHETHER JURY FOUND IN CONFORM.

ITY WITH INSTRUCTIONS, when that finding, by the conditional instructions given, was expressly left to depend upon their own judgment as to the state of facts upon which they were to predicate such finding.

PROPRIETY OF INSTRUCTIONS GIVEN, IF NOT PRESENTED BY MOTION, is not in the case.

REPLEVIN for two negroes. Plea, non detinet, and property in defendant. The facts are stated in the opinion of the court. Verdict and judgment for the plaintiff. The defendant moved for a new trial, on the ground that the verdict was contrary to the law and the evidence, and directly contrary to the court's instructions. The motion was overruled, and the defendant appealed.

Pike and Cummins, for the appellant.

S. H. Hempstead, and Watkins and Curran, contra.

By Court, JOHNSON, C. J. It is difficult to conceive upon what ground the plaintiff below could claim a recovery. It is in proof that the defendant below hired the negroes in controversy from the plaintiff for the period of twelve months, which had not expired at the date of the trial. It is clear, therefore, that, even admitting the title to be in the plaintiff, he was not entitled to the immediate possession, and consequently could not legally claim a judgment for such possession. It is not sufficient for a plaintiff in replevin to have a clear legal title to the property in controversy, but he must also be entitled to the immediate possession in order to warrant a recovery. It is true that he is not, as an indispensable requisite, required to show title to the property, but he never can recover in any case unless he can show himself entitled to the immediate possession. The first section of chapter 136 of the digest provides that "whenever any goods or chattels are wrongfully taken or wrongfully detained an action of replevin may be brought by the person having the right of possession, and for the recovery of the damages sustained by reason of the unjust caption or detention."

But in order to avoid the effect of the contract of hiring, it is urged that a sale of the property was subsequently made to the defendant which operated to extinguish it, and then lest the defendant should rest upon his purchase it is insisted that no title passed to him by it inasmuch as it was made to defraud the creditors of the plaintiff. We are free to confess our inability to appreciate the force of this argument. If the contract of sale was absolutely void, as contended, it would be difficult to conceive how it could operate an extinguishment of the contract of hiring, the fairness of which has not been assailed. This doctrine was expressly repudiated by this court in the case of Martin v. Royster et al., 8 Ark. 82. It was there broadly declared that a

contract fair and lawful in itself could not be affected by one which was void as against the policy of the law.

The next point to be considered, therefore, is whether the contract of sale was merely void as being against the statute of frauds, or binding upon the parties to it. The principles applicable to contracts of this character were fully elucidated by this court in the case of Payne v. Bruton, 10 Ark. 53. It was there said that "the general rule that contracts tainted with fraud are binding upon the immediate parties, seems to be subject to such a modification as merely to include such as are already executed, and not those that are simply executory. This is the only possible sense in which this rule can be reconciled with the authorities. Where the contract is executed, it may, with propriety, be said to be binding, as the law will not relieve either party, no matter how great may be the hardship to which he shall have subjected himself; but when it is executory it can not be said to be binding, because the law will not lend its aid to either party to enable him to enforce it according to its terms.” The contract of sale in this case was fully and completely executed by a delivery of the property, and as a necessary consequence, under the doctrine laid down in the case referred to, it does not now lie in the mouth of the plaintiff to say it was fraudulent, and to seek, on that account, to evade the effect of it. Under this view of the original contract of sale from the plaintiff to the defendant, which included other property than that which is now in dispute, we conceive it unnecessary to remark upon a resale of a portion and the reservation of the identical property now in controversy and the payment of the price by the defendant to liquidate the very debt which it is alleged the first sale was intended to defeat. The effect of this transaction was wholly immaterial, since the original sale was completely executed, and, whether fraudulent or not, was to all intents and purposes obligatory upon the parties. It necessarily follows from the principles here laid down that all the testimony tending to show fraud upon the rights of the creditors of the plaintiff was clearly inadmissible, and consequently should have been excluded on the motion of the defendant.

But it is insisted that the correctness of the instructions and the propriety of the testimony are not legitimate subjects of investigation in this court, since they are not specifically set out as grounds of error in the motion for a new trial. This is doubtless the correct rule: See the case of Berry v. Singer, 10 Ark. 483, where the whole doctrine is re-examined and con