be executed, might not be so incompatible with the deed as to render it absolutely void under all circumstances. The court, however, as in Conrad v. Atlantic Insurance Company, declined expressing any opinion on this point, further than that it was not supposed to be decided in Hamilton to say, § 276. Possession not Evidence of Fraud.-A third rule on the subject of delivery of possession of property assigned, which prevails in some States, is that retention of possession by an assignor is not even presumptive evidence of fraud, but is consistent with the validity of the assignment. This rule is constantly applied to those deeds of trust, already mentioned as peculiar to the southern States, which are executed by way of security to creditors, and which provide for a sale of the property in case the debt secured is not paid; and in which, also, express provision is frequently made for the retention of possession by the debtor. The formality of a record or registry, which is usually necessary to the validity of these instruments as of mortgages, dispenses with the necessity of a delivery of possession; and the general principle applied is, that it is of the nature of a security, that the debtor should retain possession until the day of payment be past. Thus, in Virginia, delivery of possession to the trustee never occurs on the execution of a deed of trust, but possession remains with the debtor until the time to sell. In this State, it has been decided that the inconsistency of the debtor's possession with the deed is the matter which constitutes fraud. In Mississippi,* and Alabama," possession by the debtor until the sale, is not incon 1 1 Tuck. Com. [338] 327; Hempstead v. Johnson, 18 Ark. 309. 21 Tuck. Com. [340] 329; Land v. Jeffries, 5 Rand. 211, 252; and see 1 Smith's Lead. Cas. (Am. ed. 1855), 58-63. 4 Land v. Jeffries, ubi supra. Layson v. Rowan, 7 Rob. (La.) 1; Comstock v. Rayford, 12 Sm. & M. 369. In this State, delivery is not necessary to the completion even of a sale of personal property. The statute of frauds, 29 Car. II, c. 3, has not been re-enacted. Ingersoll v. Kendall, 13 Sm. & M. 611. * Ravisies v. Alston, 5 Ala. 297. But possession after the sale is evidence of sistent with the deed, and raises no presumption of fraud. In the last-named State, it has been decided that where a deed of assignment is not fraudulent on its face, the possession and use of the property by the assignor, in conformity with the express provisions of the deed, cannot render it void. And it has been declared to be well settled that the retention of possession by a grantor in a deed of trust, if such possession is consistent with the terms of the deed, is not a badge of fraud; nor is it a circumstance from which an inference of fraud would necessarily arise. A similar practice of retaining possession until a sale under a deed of trust, prevails in North Carolina; the courts approving it as being more convenient for all parties that the possession. should not be changed. In Kentucky, the same rule has been recognized; and in a case where one of a firm who had assigned their effects to trustees, for the benefit of their creditors, was retained by the trustees to aid them in executing the trust, and so remained in possession of the goods. conveyed, such continued possession was held to be no evidence of fraud. The same rule, as already mentioned, now prevails also in Pennsylvania, the record of the assignment and a compliance with other statutory requisitions being held to dispense with the necessity of a delivery. In this State, indeed, an assignment duly recorded stands upon the footing of a transfer by law; because, as the statute gives the creditors a right to have the trust that is expressed in the deed executed for their benefit by the court, the whole trust becomes vested in them in equity, under the immediate fraud, though capable of being rebutted by showing some sufficient reason why the possession was permitted to remain. Id. ibid.; McGee v. Carpenter, 4 Id. 469; see 1 Smith's Lead. Cas. (Am. ed. 1852), 55; Id. (ed. 1855), 55–57. Vernon v. Morton, 8 Dana, 247; see Christopher v. Covington, 2 B. Mon. 357; but see Gen. Stats. (1881), p. 489, § 3. 'Mitchell v. Willock, 2 W. & S. 253; Klapp's Assignees v. Shirk, 13 Penn. St. 589. administration of the court; and therefore an assignment recorded is in effect a transfer to the creditors by the act of law, and the recording gives the transaction all the publicity of a judicial proceeding.1 8277. The Prevailing Rule and Exceptions.—On the whole, the predominant rule in the United States appears to be, that possession must accompany and follow a deed of assignment by a debtor; and the possession of the assignor, after the transfer, unless explained, will render the assignment void as against creditors. But this rule is limited and qualified by several exceptions, which will now be noticed. Thus, the rule applies in a peculiar manner to personal property. The provision of the New York statute confines it, in terms, to "goods and chattels; and the distinction in this respect between personal and real estate has been clearly drawn by the courts in Connecticut" and Ohio. The same limitation was admitted by Mr. Justice Story, in Phettiplace v. Sayles," in the Circuit Court for the District of Massachusetts. 6 2 Another exception to the rule has been admitted, where the possession of the grantor or assignor is consistent with the deed; that is, with its general nature and object, as well as with its express provisions. The mere circumstance 1 1 1 Smith's Lead. Cas. (Am. ed. 1852), 70, 71; Id. (ed. 1855), 75. 8 23 Rev. Stats. (7th ed.) p. 2328, § 5. The bare fact that a grantor remains in possession of lands conveyed by him, is not enough, uncorroborated by other circumstances, to subject the transaction to the imputation of fraud. Every v. Edgerton, 7 Wend. 259. In Jackson v. Cornell (1 Sandf. Ch. 348), the possession of real estate assigned, continuing in the assignor, was considered to be evidence of fraud. It appears in this case, that the assignor had collected the rents of the property assigned, and retained a portion for his own use. * Church, J., in Strong v. Carrier, 17 Conn. 319. Sherman, J., in Barr v. Hatch, 3 Ohio, 527. 4 Mason, 312, 321. For the reason of the distinction, see Id. 321, 322; Tompkins v. Wheeler, 16 Pet. 112, arg. 'Story, J., in Meeker v. Wilson, 1 Gall. 419, 423; Putnam, J., in Bartlett v. Williams, 1 Pick. 295; Marshall, C. J., in Brooks v. Marbury, 11 Wheat. 78; and see Dawes v. Cope, 4 Binn 258; Gibson, J., in Clow v. Woods, 5 S. & R. 278, 279; Land v. Jeffries, 5 Rand. 211, 252. 8 Lord Mansfield, in Cadogan v. Kennett, Cowp. 432, 436. that the deed contains an express provision for the contin uance of possession in the grantor, will not take the case out of the rule, where it is inconsistent with the character of the transfer itself. This branch of the subject has already been considered under a former head. 2 Again, the rule ceases to have application where the creditors expressly assent to the assignors continuing in possession. Thus, in Tompkins v. Wheeler (which was a case of an assignment directly to creditors), after the assignment, the creditors for whose benefit it was made neglected to appoint an agent or trustee to execute it, and the property assigned remained in the hands of the assignor. The property consisted principally of choses in action, which the assignor went on to collect, and divided the proceeds among the creditors under the assignment. No one of the creditors was dissatisfied, and at any time they could have taken the property out of the hands of the assignor. It was held by the Supreme Court of the United States, that leaving the property in the hands of the assignor, under these circumstances, did not affect the assignment, or give a right to a creditor not preferred by it to set it aside. Finally, the application of the rule requiring a delivery of possession of property assigned depends upon the fact, whether such delivery be possible, under the circumstances of the case. This will be more fully considered under the head immediately following. § 278. Time and Mode of Delivery.-As a general rule, in order to avoid all ground of objection to the validity of the assignment, possession of the personal property assigned should always, if practicable, accompany the assignment. But where, from the circumstances of the property, immediate possession is not within the power of the parties, as in the case of a ship or goods at sea, it will be dispensed with upon the plain ground of its impossibility; and all that will be 2 '16 Pet. 106. And see Steel v. Brown, 1 Taunt. 381. required will be, that the assignee take possession of the property within a reasonable time after it comes within his reach.1 And even where the property assigned is, in its nature capable of immediate delivery, the assignee will be entitled to a reasonable time to take possession. Thus, in Pennsylvania, where the trustee lived at a distance, and did not hear of the assignment until four days after it was made, when he assented, and the debtor continued in possession one day and part of another, after the execution of the deed, the assignment was sustained by the court. 5 3 In regard to the mode of delivery it may be observed, generally, that possession of lands is delivered by delivery of the deed; of goods, by an actual delivery of the goods themselves, or a constructive delivery, where this is impracticable; and of debts or choses in action, by delivery of the evidences of them. Delivery of the evidence of a debt is a sufficient delivery of the possession of it. Notice to the debtor is necessary in some cases; but not in transfers of bills of exchange or notes payable to order previous to maturity; nor afterwards, but to prevent the parties bound from acquiring equities against the holder, to which they might be entitled, if not notified" § 279. Constructive Delivery.-In regard to goods, or personal chattels, a constructive or symbolical delivery is allowed in many cases where an actual delivery is physically impracticable. Thus, in the case of the assignment of a vessel while abroad or at sea, a delivery of the bill of sale, 1 8 Story, J., in Conard v. Atlantic Insurance Company, 1 Pet. 386, 449; Harris v. D'Wolf, 4 Id. 147, 151; Meeker v. Wilson, 1 Gall. 419, 423; Wheeler v. Sumner, 4 Mason, 183; D'Wolf v. Harris, Id. 515; Bholen v. Cleveland, 5 Id. 174; Brown v. Minturn, 2 Gall. 557; Portland Bank v. Stacy, 4 Mass. 661; Gardner v. Howland, 2 Pick. 599; Hodges v. Harris, 6 Id. 360; Dawes v. Cope, 4 Binn. 258; Carpenter v. Mayer, 5 Watts, 485; Eagle v. Eichelberger, 6 Id. 29; Langdon v. Horton, 1 Hare (23 Eng. Ch. R. Am. ed.), 549; Bump on Fraud. Conv. p. 198. 2 * Ingraham v. Wheeler, 6 Conn. 267. See ante, p. 389. * Wilt v. Franklin, 1 Binn. 502. United States v. Bank of the United States, 8 Rob. (La.) 262. Parker, C. J., in Gardner v. Howland, 2 Pick. 599, 602. |