FOLLETT, Ch. J.

The learned counsel for the plaintiffs insists in his first point that title to the lots was never vested in Messenger, because he says a valid delivery of the deed and an acceptance of it by him were not proved. The plaintiffs are not in a position to raise this question, for they alleged in the fourth division of their complaint that the legal title to the lots in question was in Messenger until he conveyed them to the defendant. This allegation was not controverted by the answer. It was not found as a fact nor as a conclusion of law that there was not a valid delivery of the deed from the master in chancery to Messenger, nor was the referee requested by either party to so find or hold. But if this position could be maintained it would not aid the plaintiffs, for the result would be that the title of the owner of the fee when the mortgage was foreclosed was not divested by the master's deed, and both the plaintiffs and defendant would be without title to the lots.

David H. Robertson having procured these lots to be conveyed to Messenger for the purpose of defrauding his creditors, had no legal estate in them which could be reached by execution ( Garfield v. Hatmaker, 15 N.Y. 475), or which on his death descended to his heirs. ( Moseley v. Moseley, 15 id. 334; Wait on Fraud. Convey. § 121. See also 1 R.S. 728, §§ 50, 51, 52; Underwood v. Sutcliffe, 77 N.Y. 58; Brewster v. Power, 10 Paige, 562; Bates v. Lidgerwood Mfg. Co., 50 Hun, 420; Hamilton v. Cone, 99 Mass. 478.) This rule is a penalty imposed by the law for the prevention of frauds and for the protection of subsequent purchasers (Reviser's notes to sections cited), and the reason for its application is not weakened in case the grantee, as in the case at bar, was not a participant in the fraud.

It is clear that neither Robertson in his life-time, nor his heirs since his death, could have recovered the lands or its proceeds from Messenger, or from his grantee by any legal or equitable remedy. (See the authorities above cited.) It is alleged in the complaint that David H. Robertson was the owner of the mortgage which was foreclosed, but no such fact was found. On the contrary, the facts found compel the inference that he had no interest in the mortgage nor in the land covered by it.

Proceeding on the assumption that the deed to Messenger vested the legal title in him, did the agreement which the learned referee found was made between the defendant and Messenger create a legal or equitable interest in the lots in favor of the plaintiffs, or did it raise a liability on the part of the defendant in favor of the plaintiffs which can be enforced in this action? The referee finds, "he (Messenger) was told by defendant that they (the lots) had been sold for taxes but could be redeemed; he (Messenger) then knew that David H. Robertson and his oldest son and daughter were dead, and that the other children were scattered, but living at places unknown to him; and after some conversation touching a supposed interest of defendant in the lots (and which is referred to in the deed), he said to defendant, "I will tell you what I will do; if any of Mr. Robertson's heirs should turn up in distress, I will transfer this property to you, providing you will help them," to which defendant said, "Agreed; I will do so," and when asked the amount, said Messenger named one or two hundred dollars, that being about the value of the lots when they came to his hands.

On that occasion a quit-claim deed was made and executed by Messenger to the defendant granting all his right, title and interest in the lots, under which deed defendant holds the same, for which no actual consideration was paid, but the sole consideration was the promise herein above stated.

This action was not brought to enforce the agreement, nor do the findings show the existence of facts creating a liability under it. There is no finding or request to find that the defendant procured the conveyance to be made by the false representations of himself or of his attorney. We think the facts found do not establish any liability on the part of the defendant to the plaintiffs which can be enforced in this action. As before remarked, the evidence given on the trial is not contained in the record, and so this court has no means of ascertaining the merits of the controversy except as disclosed by the decision of the referee. For some reason, which we must assume was justified by the evidence, the learned referee refused to allow the defendant costs, and no costs were allowed him at General Term. Following the views of the courts below upon the question of costs, the defendant will be denied them in this court.

The judgment should be affirmed, without costs.

All concur.

Judgment affirmed.