¶1delivered the opinion op the court.
¶2This judgment as to William Stamper must be reversed. There is no charge of a fraudulent preference made by 'William. Stamper for the purpose of securing creditors, and therefore it ivas improper to adjudge that, in contemplation of insolvency, and with a design to prefer, he had conveyed his property. When constructive fraud exists by reason of the statute, the title to the entire estate of the debtor passes by operation of law to his creditors, and this statute was enacted to prevent a failing debtor from *359giving a preference to one creditor over another, and where a preference is made all creditors share alike, unless there are bona ficle liens ; but in case of actual fraud the creditor who assails the transfer on that ground and obtains his attachment, there being, no pleading to bring the case within the act of 1856, has his prior lien, when establishing the fraud, and other creditor's coming into the action have subordinate liens dating from the time of filing their petitions. It is claimed that William' Stamper has no interest in this controversy. He has this interest: His entire estate is made to pass to all creditors by the judgment when there is neither pleading nor proof authorizing it.
¶3Judgment reversed as to appellant William Stamper, and affirmed as to the other appellants.