CHAPTER XII. RETENTION OF POSSESSION OR APPARENT TITLE BY GRANTOR. Section 1. Retention of possession as element or evidence of fraud. 2. Transfers presumptively or prima facie fraudulent. 3. Transfers fraudulent per se or conclusively. 4. Sufficiency of change of possession; open, visible and notorious 9. Continued change of possession. 10. Subsequent possession by vendor after change of possession. 11. Possession by vendor as agent or bailee of purchaser. 12. Possession by vendor as clerk or servant of purchaser. 13. Possession by vendor as lessee of purchaser. 14. Constructive and symbolical delivery. 15. Where actual delivery is impossible or property is not susceptible 16. Bulky, cumbersome, and ponderous articles. 17. Property in possession of third party as bailee. 19. Possession by agent or servant of vendor. 23. Possession of land on which personal property is situated. 24. Delivery to common carrier. 25. Vendee already in possession. 26. Separation or marking of property purchased. 27. Time of delivery; must be within reasonable time. 28. Change of possession before levy. 29. Assignment in trust for creditors. 30. Possession remaining with mortgagor. 31. Effect of retaining vendor's sign. 32. Notice of transaction; publicity and notoriety. 33. Judicial and public sales. 34. Effect of knowledge or notice as to existing creditors. 35. Effect of knowledge or notice as to subsequent creditors. 36. Constructive notice and want of it; recording instrument of 37. Effect of failure to record or file instrument in general. Section 1. Retention of possession as element or evidence of fraud.—To what extent the retention of possession of property by the vendor, after a transfer thereof, is to be considered as an element or evidence of fraud, is a question which has occasioned much discussion in the courts and has given rise to considerable conflict of opinion. It seems to be conceded in all cases that the retention of possession is to be regarded as some evidence of fraud as to the existing creditors of the vendor, but whether such evidence should be deemed merely presumptive and subject to explanation or rebuttal, or absolute and conclusive, as to the fraudulent character of the transaction, has been a perplexing question for the courts to determine as a rule of evidence, as well as for legislatures to decide upon as a rule of policy. In some states the subject is regulated by statutes, which have been variously interpreted, while in other states the question is determined according to the rules and principles of the common law.1 § 2. Transfers presumptively or prima facie fraudulent.— It was the doctrine of the early English cases that a sale of chattels without any change of possession was fraudulent as a matter of law.2 But later cases established clearly the rule that the retention of possession of property by the vendor, or the want of delivery of possession, does not make void a bill of sale of goods or chattels, but is a badge and evidence of fraud only or prima facie evidence of fraudulent intent, and is not conclusive, and that, in order to ascertain whether a conveyance be fraudulent or not, all the circumstances must be taken into consideration, and whether the retention of possession is consistent with the terms of the agreement, and the transaction was a fair one and intended to pass the property for a good and valuable consideration, are questions for the jury, having regard to all the circumstances of the transaction.3 The same rule is maintained in 1. See cases cited in notes to next two sections. 2. Edwards v. Harbin, 2 T. R. 587, 1 Rev. Rep. 548; Wordall v. Smith, 1 Campb. 332. 3. Hale v. Metropolitan Saloon Om 5 Canada, the retention of possession by the vendor being held to be only a matter for the consideration of the trial court in deciding whether or not fraud exists. Many of the early American cases, in states where a different rule now prevails, held that a transfer of personal property, unaccompanied by a corresponding change of possession, was fraudulent per se, and void as to creditors. But the rule now maintained by the weight of American authority is that the continuance in or retention of possession of chattels by the vendor, after a sale purporting to be absolute, or the transfer of personal property not accompanied by a change of possession of the property transferred, is not fraudulent per se, as against the vendor's creditors, subsequent purchasers or mortgagees, but is only presumptively or prima facie fraudulent. This presumption of fraud, going to the fact of the sale and the sufficiency of the consideration, may, however, be rebutted, but nibus Co., 4 Drew, 492, 28 L. J. Ch. 777, 7 Wkly. Dig. 316; Martindale v. Booth, 3 B. & Ad. 498, 1 L. J. K. B. 166, 23 E. C. L. 223; Graham v. Thurber, 14 C. B. 410, 2 C. L. R. 10, 452, 18 Jur. 226, 23 L. J. C. P. 51, 2 Wkly. Rep. 163, 78 E. C. L. 410; Latimer v. Batson, 4 B. & C. 652, 10 E. C. L. 742, 7 D. & R. 106, 4 L. J. K. B. O. S. 25; Kidd v. Rawlinson, 2 B. & P. 59, 3 Esp. 52, 5 Rev. Rep. 540; Jezeph v. Ingram, 1 Moore C. P. 189, 8 Taunt, 838, 4 E. C. L. 406; Leonard v. Baker, 1 M. & S. 251; Watkins v. Birch, 4 Taunt, 823; Arundell v. Phipps, 10 Ves. Jr. 139, 32 Eng. Reprint, 797. The notoriety of the sale is a circumstance to rebut the presumption of fraud, when the seller remains in possession. Latimer v. Batson, supra; Kidd v. Rawlinson, supra; Cole v. Davies, 1 Ld. Raym. 724; Macdona v. Swiney, 8 Ir. C. L. 73. 4. Fraser v. Murray, 34 Nova Scotia, 186. 5. N. Y.-Tifft v. Barton, 4 Den. 171; Stoddard v. Butler, 20 Wend. 507; Sturtevant v. Ballard, 9 Johns. 337, 6 Am. Dec. 281; Marston v. Vultee, 21 N. Y. Super. Ct. 129. Ala. Seaman v. Nolen, 68 Ala. 463. Dak.-First Nat. Bank v. Comfort, 4 Dak. 167, 28 N. W. 855. Iowa.-Boothby v. Brown, 40 Iowa, 104. La.-McCarhy v. Baze, 26 La. Ann. 382. Mass.-Parsons v. Dickinson, 28 Mass. 352; Shumway v. Rutter, 24 Mass. 56; Lanfear v. Sumner, 17 Mass. 110, 9 Am. Dec. 119. Mich.-Webster v. Bailey, 40 Mich. 641. N. J.-Chumar v. Wood, 6 N. J. L. 155. S. C.-Kennedy v. Ross, 2 Mill Const. 125. Va.-Clark v. Hardiman, 2 Leigh, 347; Thomas v. Soper, 5 Munf. 28. |