After argument, the opinion ofthé court was delivered by

As the statute of November 15, A. D. 1821, see. 7, avoids fraudulent judgements and executions “ as against the “ party or parties, only, whose right, debt or duty is endeavored “ to be avoided, their heirs, executors, administrators or assigns,” tbe question in this case is, whether the defendant’s situation, with respect to the company, and to the property in question, entitles him to claim the benefits of the statute, and to impeach the plaintiff’s title on the ground of fraud, It is said he stands in the place of Strong who was a creditor of the company, and whose debt was apparently satisfied by a levy upon the premises in question, prior to that under which the plaintiff claims ; that Strong’s levy has never been avoided or impeached by the company, who have acquiesced in this' mode of satisfying their debt to Strong; and that the defendant, being in possession under a deed from Strong, and under a title from the company apparently legal, has a-right to go into the evidence of fraud, as the grantee of a creditor whose right was endeavored to be avoided, and also for the purpose of disarming the plaintiff of his right to impeach the title acquired by Strong. >

It may be granted that the defendant has all the rights of Strong, and that the question is the same as if Hyde and Strong were the parties to this action, and yet we think the evidence of fraud was properly excluded. The practice of setting aside or correcting a levy upon land, by application to the court which issued the execution, has never prevailed in this state, except in certain cases where a scire facias is given by statute, and then the application is made by the judgement creditor and not by the debtor ; nor has the distinction now attempted, between levies which are void and those which are only voidable, ever been recognized. It was, therefore, competent for the plaintifi to invalidate the levy under which the defendant claims, and the court have before decided that the evidence given was proper for that purpose.* The con*536sequence was, that the defendant was left in possession without title and as a trespasser. The creditor himself acquired no interest in the land by the levy, so as to entitle him to impeach the right of Hyde or his grantee on the ground of fraud, and the defendant cannot be allowed to stand in a better situation. Had the defendant entered under a contract with the company for a purchase of the land, or had he shown any other claim to the property, which a court of equity would probably enforce, against a creditor, and to protect such equitable right, had offered evidence of fraud in the plaintiff’s title, the case might perhaps have deserved a different consideration. No such question however is now before the court, as the levy of an execution has no resemblance to the transfer of property by contract of the parties, it being a compulsory process which if not wholly legal is wholly void. These parties are not on equal ground, for while the plaintiff, by reason of his connexion with the property in question, has a right to expose the weakness of the defendant’s title,the defendant, for want of any legal right or interest in the property, is not at liberty to urge the particular objection of fraud to the title of the plaintiff. The defendant would seem to be in little danger of suffering materially from this decision, since he has a right to attach and set ofi the land anew, if the title of the plaintiff is really infected with fraud.

Judgement of county court affirmed.