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nor any part thereof, and said deed was made, delivered and accepted, not in good faith nor with any bona fide attempt thereby to grant or convey said premises, but at the instance of and in collusion with said Wyatt, said Kelly and others, and with the wrongful and raudulent intent thereby, to make it appear that said premises had been again conveyed to a bona fide purchaser for value without knowledge or notice of the frauds aforesaid, and thereby to defraud the plaintiffs of said premises, and to hinder and delay said plaintiffs in recovering the same, and with notice on the part of said Van Alstine of the frauds aforesaid.

Eleventh. That neither of the plaintiffs had any knowledge or actual notice of the recovery of said judgment, or the issuing of said execution, or said sale thereunder, or of said conveyance from said sheriff to said Kelly, or from said Kelly to said Weeks, or of said Weeks to said Van Alstine, or of said mortgage from said Weeks to said Frazier, until long after the said issuing of said execution, and said sale, and said conveyances, and said mortgage.

That said plaintiffs continued in full, quiet and peaceable possession of said premises, and the rents and profits thereof, until some time between the 1st day of May and the 1st day of June, 1871.

Upon these facts the court found as matters of law: First.-That said deed from said James O'Brien to said Joseph Kelly, is fraudulent as between the parties to this action, and should be set aside, and said Kelly should execute and deliver unto the plaintiff a full release of all his interest in said premises, with covenants against his own acts, and that his wife, Ellen L. Kelly, should join in said deed and release all her right, title and interest, and right of dower, in and to the said premises.

Second. That said deed from said defendant, Joseph Kelly, to the defendant, Emma Weeks, is fraudulent,

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and should be set aside, and said Emma Weeks should execute and deliver unto the plaintiff's a full release of all her interest in said premises, with covenants against her own acts.

Third. That said mortgage from said Emma Weeks to said Frazier is fraudulent, and should, as between the parties to this action, be set aside, and said Frazier should execute and deliver to the plaintiff a full release of all his interest in the premises, and in and to said mortgage.

Fourth.-This said deed from said Emma Weeks to said Philip Van Alstine is fraudulent, and should be set aside, and said Philip Van Alstine should execute and deliver unto the plaintiffs a full release of all his interest in said premises, with covenants' against his own acts to the present owner and holder of said mortgage, for principal and interest due on the said bond, purporting to be secured by said mortgage.

Fifth. That an account be taken before a referee to be appointed by this court, of the rents and profits which have been received, or which might have been received, by the defendants or any of them, of said premises, and of any damage or waste done or suffered to said premises while any of said defendants have been in the possession of said premises through their lessees or otherwise, and that the plaintiffs are entitled to judgment against the defendants, Joseph Kelly, Emma Weeks and Philip Van Alstine, severally, for the amount of such rents, profits, damage and waste found upon such accounting to be charged against them severally.

Sixth. That the plaintiffs are entitled to judgment, in accordance with the foregoing findings, and for their costs and disbursements of this action against the de fendants, Joseph Kelly, Weeks and Van Alstine, but that the plaintiffs recover no costs against defendant

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Frazier, but the defendant, Frazier, is not to recover costs against the plaintiffs. And I do hereby order and direct an additional allowance to be made to the plaintiffs of five hundred dollars.

Judgment having been entered in accordance with the decision, the defendants appealed.

The following opinion was rendered at special term:

SEDGWICK, J.-The defendant Kelly, in testifying, gave out at first, if he did not assert, that his relations with Mr. Wyatt were slight and casual. As long as possible he withheld the bank book, which led to proof from himself, that in fact those relations were intimate and confidential. The examination of the

records made by him was clearly not for the purpose of informing himself, but to give him the semblance of a person acting independently and in his own interests.

I am convinced that the conveyance to Mrs. Weeks, and the mortgage to Mr. Frazier, did not represent substantial transactions, but were mere forms. Carter and Kelly may have moved on different lines, without personal communication, up to the time of the conveyance and mortgage, but they were consciously co-operating when they met with the others; they took part in, as it were, a dramatic representation, which might afterwards be narrated as a real transaction.

I do not know who owned the money used on that occasion, but am satisfied that it was not lent to Mrs. Weeks, except as a form, and that it was not paid over to Kelly to be kept by him as the consideration of the conveyance.

The Dunn lease evidently was a device by which the premises were left vacant, that the parties claiming under the sheriff's sale might obtain possession without a resort to the law.

On the whole case, I believe that Mr. Van Alstine

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took his conveyance with notice of the real situation of the facts.

In combining all the circumstances, I can not avoid the conclusion that the parties acted as directed by Mr. Wyatt, and in concert with him, from the first, and that at first Kelly became purchaser upon instructions from him and as jointly interested with him, since the first, the real parties interested, have retained their interest in a part of it.

These being the results of the testimony, the law applies the rule omnia presumantur contra spoliatorem. The law does not deem that there can be so much machination and concealment without design and a substantial motive, viz., to prevent that being known which would set aside the sale. The burden of proof rests upon the parties defendant to show affirmatively that nothing occurred which would invalidate the sale, not only that all the forms as to all kinds of notices, &c., were complied with, but that the sale was fairly conducted, bidders not kept away, &c., and that nothing was done to prevent notice of the proceedings reaching the owners who, upon notice, would without doubt, rather have paid two hundred dollars than lose their property. Every intentional deviation from the usual and ordinary course of affairs, is a circumstance of testimony that there is a weak point to be hid. At this point it becomes a very important consideration, that the defendant, acting, as we have seen, in concert with Mr. Wyatt, did not call him as a witness. He is the only one who could affirmatively show that there was no legal or equitable cause for setting aside the sales. The witnesses who were called on that point show that such of those forms were complied with as, in favor of a bona fide purchaser, create a presumption that the sale and the subsequent proceedings were regular, but, as we have said, that does not cover the ground to be established.

Opinion of the Court, by FREEDMAN, J.

The conveyances. to Kelly, Mrs. Weeks and to Mr. Van Alstine, should be set aside, and also the mortgage to Mr. Frazier, as between the parties to this action. The plaintiff should have costs against the defendants, excepting Mr. Frazier, but he is not to have

osts.

Erastus New, Henry F. Pultzs, J. B. McEwen, Philip Van Alstyne, attorneys, and W. A. Beach, of counsel, for appellants.

Hammond and Stickney, attorneys, and Albert Stickney, of counsel, for appellants.

THE COURT.-FREEDMAN, J.-The court at special term found, that the sale was an oppressive use of the process of the court, made at the instance of Wyatt, the attorney, in collusion with Kelly, and with a wrongful and fraudulent intent on the part of both of them; that the conveyance to Mrs. Weeks, the mortgage to Frazier, and the conveyance to Van Alstine, did not represent substantial transactions, but were mere forms, and as such they were gone through with to defraud the plaintiffs out of said premises, and to hinder and delay them in recovering the same; and that in these various matters all the defendants acted in collusion and concert with, and as directed by, Wyatt.

The evidence is sufficient to sustain these findings.

True, Kelly and Frazier, who of all the defendants were the only ones that were called to the witnessstand, claimed to have acted honestly and in good faith. But the judge who had them before him, and who observed the manner and the toue of their testimony, had the right to pass upon the credibility, and in doing so, he had the right to disregard their unsup