immediately is rendered fraudulent per se by leaving the property in possession of the vendor; although, if such possession be consistent with the face of the deed of conveyance, it may be explained, and the deed may nevertheless be valid. The doctrine of fraud in law, as applicable to the subject under discussion, has been said to be merely a kind of rule of evidence, presenting what facts shall be held to show conclusively the existence of fraud and creating a kind of estoppel in pais.1

Where this doctrine prevails, the vendor's continued possession is fraudulent per se as to creditors of the vendor and purchasers from him, notwithstanding the sale may have been made in good faith; and this would be the case although authority were given in terms by the instrument not in a condition to be removed - such as growing crops. Robbins v. Oldham, I Duv. 29; Cummings v. Griggs, 2 Duv. 87; Morton v. Ragan, supra. Nor to purchasers or creditors with actual notice of such sale. Vanmeter v. v. Estill, supra. Missouri-So by Statutes of 1865; Wag. Stats. 281, sect. 10; Claflin v. Rosenberg, 42 Mo. 439; Lesem v. Herriford, 44 Mo. 323; Bishop v. O'Connell, 56 Mo. 158; Burgert v. Borchert, 59 Mo. 80; Franklin v. Gummersell, 11 Cent. L. J. 132. Nevada- It is provided by statute that every sale made by a vendor of goods and chattels in his possession or under his control, and every assignment of goods and chattels, unless the same be accompanied by an immediate delivery and be followed by an actual and continued change of possession of things sold or assigned, shall be conclusive evidence of fraud as against the creditors of the vendor, or the creditors of the person making such assignment, or subsequent purchasers in good faith. Comp. Laws 1873, sect. 292. Oregon 438; Gen. Laws 1872, p. 262, sect. 766. Binn. 258; Babb v. Clemson, to Serg. & R. 99; Clow v. Wood, 5 Serg. & R. 275; McKibbin v. Martin, 64 Pa. St. 352, 356; Bentz v. Rockey, 69 Pa. St. 71; Miller v. Garman, 69 Pa. St. 134; Garman v. Cooper, 72 Pa. St. 32. Vermont- Houston v. Howard, 39

Vt. 55; Daniels v. Nelson, 41 Vt. 161.

Daniels v. Nelson, supra.

McCully v. Swackhamer, 6 Or. Pennsylvania - Dawes v. Cope, 4 R. 419; Shaw v. Levy, 17 Serg. &

2 Thompson v. Wilhite, 81 Ill. 356; Allen v. Carr, 85 Ill. 388; Lewis v. Swift, 54 Ill. 436; Ketchum v. Watson, 24 Ill. 591; Powers v. Green, 14 Ill. 386, and cases cited; McCormick v. Hadden, 37 Ill. 370; Burnell v. Robertson, 5 Gilm. 282; Jennings v. Gage, 13 Ill. 610; Brundage v. Camp, 21 Ill. 330; Murch v. Wright, 46 Ill. 487; Michigan Central R. Co. v. Phillips, 60 Ill. 190; Western Union R. Co. v. Wagner, 65 Ill. 197; Young v. Bradley, 68 Ill. 553: Ohio & Mississippi R. Co. v. Kerr, 49 Ill. 458; Morris v. Grover, 2 Scam. 528.

of sale that the vendor might remain in possession, for such possession is inconsistent with a sale.1

The modern English doctrine,' and that more generally adopted by the American courts,3 is that possession by a

1 Thornton v. Davenport, 1 Scam. 296, 299; Rhines v. Phelps, 3 Gilm. 455, 464; Greenebaum v. Wheeler, 90 Ill. 296, 298; Goodheart v. Johnson, 88 Ill. 58, 62; Barnet v. Fergus, 51 Ill. 352, 355. In regard to this doctrine of fraud per se, Mr. Bump, in his learned treatise upon Fraudulent Conveyances (pp. 68-73), very justly says, in substance, that it is apt to work injustice; that the advantage of simplicity which it is supposed to possess does not exist in fact, as may be seen by a glance at the confused mass of authorities in which this easy guide to the detection of fraud has only led to an endless maze of disputation, and numerous modifications of the rule and exceptions to it. He further says that another objection to the rule is, that it looks to the form rather than the substance of the transaction; that it is not founded in good policy; that it restricts trade and industry; that it sets up a fictitious standard of morals; and that the attempt to divide honesty into chapters, or to define morality by sections, is unterly unavailing. Citing for this, Stoddard v. Butler, 20 Wend. 507, 545, per Senator Dickinson; Davis v. Turner, 4 Gratt. 422. 2 Latimer v. Batson, 4 Barn. & Cress. 652; Martindale v. Booth, 3 Barn. & Adol. 498, 505; Stewart v. Lombe, 1 Brod. & B. 506, 512; Arundel v. Phipps, 10 Ves. 139, 145; Kidd v. Rawlinson, 2 Bos. & Pul. 59; Leonard v. Baker, 1 Mau. & Sel. 251; Reid v. Blades, 5 Taun. 212; Paget v. Perchard, I Esp. 205. In Martindale v. Booth, supra, Parke, J., said: "I think that the want of delivery of possession does not make a deed of sale of chattels absolutely void. The dictum of Buller, J., in Edwards v. Harben, 2 Term Rep. 587, has not been generally considered in subsequent cases to have that import. The want of delivery is only evidence that the transfer was colorable.

*

*

*

It may be a question for a jury whether, under the circumstances, a bill of sale of goods and chattels be fraudulent or not." Patteson, J., in the same case said: "There is no sufficient authority for saying that the want of delivery of possession absolutely makes void a bill of sale of goods and chattels. It was held in Martin v. Podger, 2 W. Black. 701, that want of possession was a badge of fraud which ought to be left to the jury. Then, if it be a badge of fraud only, in order to ascertain whether a deed be fraudulent or not, all the circumstances must be taken into consideration."

-

3 Alabama - Hobbs v. Bibb, 2 Stew. 54; Millard v. Hall, 24 Ala. 209, 219; Wyatt v. Stewart, 34 Ala. 716, 721; Mayer v. Clark, 40 Ala. 259; Moog v. Bonedicks, 49 Ala. 512; Crawford v. Kirksey, 55 Ala. 282. Arkansas George v. Norris, 23 Ark. 121. Georgia - Goodwyn v. Goodwyn, 20 Ga. 600. Indiana-So by statute. Nutter v. Harris, Ind. 88, 91; Kane v. Drake, 27 Ind. 29; Case v. Winship, 4 Blackf. 425. Kansas - Denny v. Faulkner, 22 Kan. 89. And see Frankhouser v. Ellett, 22 Kan. 127, 146, per Brewer, J.; Wolfley v. Rising, 8 Kan. 297. Louisiana - Keller v. Blanchard, 19 La. An. 53; Miltenberger v. Parker, 17 La An. 254. Massa

vendor or mortgageor is only prima facie a badge of fraud; that the presumption arising from that circumstance may be rebutted by explanations showing the transaction to have been fair and honest; and that the question of fraud is always one of fact for a jury to determine. Mr. May, in his treatise upon Fraudulent Conveyances, after referring to the earlier English cases in which want of possession was regarded as conclusive evidence of fraud, says: "It by no means follows, though, that because there is no possession given, a transfer is fraudulent; for those cases where the judges have said that if possession was not given, it was fraudulent, must be taken with reference to the circumstances of each case. The question of possession is one of much importance, but that is with a view to ascertain the good or bad faith of the transaction. In Arundel v. Phipps,' Lord Eldon said that the mere circumstance of the possession of chattels, how

chusetts Brooks v. Powers, 15 Mass. 244; Bartlett v. Williams, 1 Pick. 288; Ingalls v. Herrick, 108 Mass. 351. Maine-Butler v. Copeland, 18 Me. 127; Fairfield Bridge Co. v. Nye, 60 Me. 372; McKee v. Garcelon, 60 Me. 165. Maryland Hudson v. Warner, 2 Har. & G. 415. Michigan - Jackson v. Dean, 1 Doug. 519; Bragg v. Jerome, 7 Mich. 145; Hatch v. Fowler, 28 Mich. 205. Minnesota - So by statute. Stats. at Large, 692, sect. 15; Blackman v. Wheaton, 13 Minn. 326. Mississippi-Comstock v. Rayford, 20 Miss. 369; Hilliard v. Cagle, 46 Miss. 309; Ketchum v. Brennan, 53 Miss. 596. New York - Hanford v. Artcher, 4 Hill, 271; Ball v. Loomis, 29 N. Y. 412, 415; Tilson v. Turwilliger, 56 N. Y. 273; Mitchell v. West, 55 N. Y. 107; May v. Walter, 56 N. Y. 8; Thompson v. Blanchard, N. Y. 303. New Jersey Parr v. Brady, 37 N. J. L. 201. New Hampshire-Coburn v. Pickering, 3 N. H. 415, 424; Trask v. Bowers, 4 N. H. 309; Almy v. Wilbur, 2 Woodb. & M. 371, 388. But the courts are prone to infer conclusively a secret trust from the vendor's possession, in connection with any confirming circumstances or agreements. Coolidge v. Melvin, 42 N. H. 510; Lang v. Stockwell, 55 N. H. 561; Cutting v. Jackson, 56 N. H. 253. NebraskaRobinson v. Uhl, 6 Neb. 328. North Carolina - Rea v. Alexander, 5 Ired. L. 644. Ohio-Barr v. Hatch, 3 Ohio, 52; Hombeck v. Van Metre, 9 Ohio, 153. Rhode Island — Sarle v. Arnold, 7 R. I. 582. Tennessee - Grubbs v. Greer, 5 Coldw. 160; Maney v. Killough, 7 Yerg. 440; Carney v. Carney, 6 Baxt. 284. Texas- Thornton v. Smith, 39 Texas, 544. Turner, 4 Gratt. 422, 426; Bird v. Wilkinson, 4 Leigh, Stuart, 6 Gratt. 197; Curd v. Miller, 7 Gratt. 185. Lewis, 14 Wis. 487.

Virginia - Davis v. 266, 273; Forkner v. Wisconsin - Grant v.

I 10 Ves. 139, 145.

ever familiar it might be to say that it proves fraud, amounts to no more than it is prima facie evidence of property in the man possessing, until a title not fraudulent is shown under which that possession has followed; that every case from Twyne's case downward supports that, and there was no occasion otherwise for the statute of King James. There was no sufficient authority for saying that the want of delivery of possession makes void a bill of sale of goods and chattels; it is prima facie evidence of a fraudulent intention, and if it be a badge of fraud only, in order to ascertain whether a deed be fraudulent or not, all the circumstances must be taken into consideration." 1

The same writer, stating his conclusions after examining the authorities, says: "The result of the authorities appears to establish this: that where, in strict pursuance of the terms. of the deed or agreement, there is no actual possession given, such want of possession is not, per se, even evidence of fraud. In such a case, the fraud against creditors must be looked for in the nature of the arrangement itself, and not in the way in which that arrangement is acted upon with regard to possession being taken; but, in order to take advantage of this rule, the subsequent acts must be consistent with the deed itself, and not with a parol agreement between the parties, for that is in the nature of a secret trust, and is always viewed with the greatest suspicion."

But to speak of possession as being even prima facie evidence of fraud is incorrect. Possession is only a circumstance of more or less weight, to be considered in connection with other circumstances bearing upon the question of fraud. "There is much confusion among courts and lawwriters respecting possession in a grantor, vendor, or mortgageor, as evidence of fraud. Some judges loosely speak of it as being conclusive, and others as being only prima facie evidence of fraud; but a careful examination of this branch of the law will show that neither of the views so expressed is correct." An examination of the cases decided in the Federal courts leads to this conclusion: "If the cases

I May on Fr. Conv. 101.

cited prove anything, they prove this: that possession is not necessarily either conclusive or prima facie evidence of fraud. To speak of possession as being in itself even prima facie evidence of fraud, is misleading and improper. * * The correct formulation of the law relating to the subject under discussion, in view of the authorities considered, and of all the authorities when considered aright, is, possession is a link in a chain of circumstances pertinent in proving fraud, having greater or less weight according to the circumstances of each case."1

* * *

There is a marked distinction between an absolute conveyance and a mortgage, which by its terms, leaves the possession in the mortgageor." "If the conveyance be conditional," says Buller, J.,3 "there the vendor's continuing in possession does not avoid it, because, by the terms of the conveyance, the vendee is not to have the possession till he has performed the condition; and such possession comes within the rule, as accompanying and following the deed." The purpose of an absolute sale is usually to give the purchaser the immediate title and possession of the property, so that he can use it or deal with it as he will; but the purpose of a mortgage is security only; and therefore it is usual to provide in the deed that the mortgageor may retain possession of the property until default, for until this occurs it is uncertain whether the property will vest absolutely in the mortgagee, or whether he will need to take possession in order to avail himself of his security.

A mortgage differs from a pledge in that delivery and possession are not necessary; and the omission of them where there has been an absolute sale is regarded as inconsistent with the contract, and as raising a presumption of fraud. But the main object of a mortgage, as distinguished

Article in 11 Cent. L. J. 21 (July 9, 1880), by M. M. Cohn, Esq. 2 United States v. Hooe, 3 Cranch, 73, per Marshall, C. J.

3 Edwards v. Harben, 2 Term Rep. 587, 596. The distinction between an absolute conveyance and a conveyance intended to operate by way of mortgage s also recognized in Martindale v. Booth, 3 Barn. & Adol. 498. And see Barrow v. Paxton, 5 Johns. 258; Bissell v. Hopkins, 3 Cow. 166; Marsh v. Lawrence, 4 Cow. 461.