¶1— By the second section of the act of 1807, it is enacted that, “ if-any person who may be a witness in any cause, depending in any of the said courts, shall be under the necessity of leaving this territory before such cause is to be tried, or even before it be at issue, upon oath thereof being made before any judge or justice of the eourt wherein the cause is depending,'such judge or justice is hereby empowered to lake the deposition of such witness, etc.” [Aik. Dig. 126.]
¶2The suggestion on which the deposition read on the trial, was taken, is recognized by the statute as authorizing the taking of testimony in that manner. And in the absence of any thing appearing to the contrary, we must intend, that every es*239sential to the regularity of the deposition was observed. This being the Case, is the mere fact that the witness resided within the jurisdiction of the court, at' the time of trial, a sufficient cause for the exclusion of his evidence? Now, this may be true, and the same reason still exist, that influenced the defendant in taking his testimony. It is not necessary that a witness should actually change his residence, in order to permit his deposition to be read. The act cited, contemplates no such thing, it merely supposes that the witness is under the necessity of leaving the State, not that he is to remove from it permanently. Taking this view as correct, is it not obvious that a person may reside at one place and be at another, at the same time. It is not pretended that the witness was actually at home, within the jurisdiction of the court; if such proof had been offered, the case would have been different, as it is declared that “all depositions shall be considered as taken de bene esse.” [Aik, Dig. 127.]
¶3In respect to the charge to the jury, it seems to suppose that every formality, essential to the validity of the deeds, offered by the respective parties, had been observed ; and the only inquiry for the jury was, whether they were not fraudulent for matter extrinsic. Both deeds, must, in the aspect in which they are presented, be regarded as operative against the donor, or vendor, and the only question is, which is entitled to a preference as between the parties in this case. Though the deed to the plaintiff may have been executed with a fraudulent intent, still it might have been enforced against the party making it. The same may be said of the defendant's deed — -and both are void, as against creditors and bona fide purchasers. But there is no law which invalidates the first, in favor of a purchaser coming after it, who cannot show his purchase to have been made in good faith.
¶4A fraudulent deed then, being valid against the party making it, cannot be defeated by a subsequent vendee, whose purchase was conceived in fraud. A.ll title having passed from the vendor by the first deed, he had none to transfer by the second, and consequently the second vendee, who stands in the same predi*240cament with the vendor, cannot successfully resist a recovery. The law, however, is entirely different, if the second purchaser can show that the transfer under which he claims, was made for a valuable consideration, and in good faith. Then the statute of frauds, which avoids every gift, grant, or conveyance of lands, tenements, and hereditaments, goods, or chattels, made to delay, hinder, or defraud creditors, or purchases, would apply with all force. But a purchaser who would invoke the aid of this statute, must appear to be such, under circumstances, that the law will recognize the validity of his purchase. (Aikin’s Dig. 207.) This conclusion is sustained by the opinion of this court in Rochelle v. Harrison. (8 Porter’s Rep. 351.)
¶5The view taken by the circuit court was induced, we suppose, by the influence which the maxim in pari delicto melior est conditio defendentis was supposed to exert. That maxim is confessedly salutary; but it does not reach to a case like the present. ■ — A fraudulent vendor, we have seen, cannot avoid his own act; and if it were allowable for him to do it indirectly by a subsequent conveyance, equally obnoxious to honesty, it would only be necessary for him to commit one act of fraud, to defeat another. But on this point, it is sufficient to say, that the plaintiff is entitled to recover, as against one showing no better title than himself — that the defendant did not set up a better title, and that not being a purchaser, within the meaning of the statute of frauds, the defendant cannot sucessfullv resist a recovery.
¶6The consequence is, that the judge of the circuit court erred in his charge to the jury — and the judgment is, therefore, reversed and the cause remanded.