between husband and wife, parent and child,25 brothers,26 and other near relatives," is generally one of fact for the jury.

§ 5. Nature and form of transaction. It is a question for the jury whether a contract for the transfer of property which by its terms was absolute was intended to be such, or was intended as an assignment creating a trust, so as to render it fraudulent as to creditors.28 Whether the nature of a transfer is such as to render it fraudulent; 29 whether it was entered into with an honest intent that it should have effect according to its apparent purpose, or for the fraudulent purpose of protecting the property of the debtor against his creditors;30 whether the sale of goods was a real sale intended to pass title; whether the instrument of conveyance was intended to pass title;32 whether two mortgages or other instruments were parts of the same transaction, so that infirmities in one vitiated both;33 whether the sale was in the ordinary course of business; whether the execution of a bill of sale of property subsequently alleged to have been transferred to defraud creditors was part of the fraudulent scheme;35 and whether the re-execution of an instrument at first illegally executed was made in good faith, have been held to be questions of fact to be determined by the jury. In proceedings to determine the title to a stock of goods,

34

S. C.-Burckmyer v. Mairs, Riley, 208.

Wis.-Barker v. Lynch, 75 Wis. 624, 44 N. W. 826.

25. Merrill v. Merrill, 105 Ill. App. 5; Chambers v. Spencer, 5 Watts (Pa.), 404; Chase v. Elkins, 2 Vt. 290.

26. Wessels v. Beeman, 66 Mich. 343, 33 N. W. 510; Craver v. Miller, 65 Pa. St. 456.

27. Heilner v. Walsh, 47 N. Y. Super. Ct. 269; Reiger v. Davis, 67 N. C. 185.

28. Hine v. Bowe, 114 N. Y. 350, 21 N. E. 733.

29. Forsyth v. Matthews, 14 Pa.

St. 100, 53 Am. Dec. 522; Carter v.
Acker (Tex. Civ. App. 1894), 27 S.
W. 502.

30. Haynes v. Ledyard, 33 Mich. 319. 31. Guyton v. Chasen (Tex. Civ. App. 1907), 101 S. W. 290.

32. Cole v. Call, 79 Mich. 159, 44 N. W. 344.

33. Bowling v. Searles, 57 Kan. 174, 45 Pac. 584.

34. Stevens v. Pierce, 147 Mass. 510, 18 N. E. 411.

35. White v. Million, 114 Mo. App. 70, 89 S. W. 599; Oliver v. Reading Iron Co., 170 Pa. St. 396, 32 Atl. 1088.

36. Hoffer v. Gladden, 75 Ga. 532.

the question whether the inquiry by the purchaser required by the statute relating to sales of stock of merchandise and fixtures in bulk was made in good faith, is for the jury."7

§ 6. Sufficiency of transfer of possession to vendee.-In an action to impeach a sale as fraudulent as to creditors of the vendor, if the facts are undisputed, it is a question of law whether these facts constitute a continued and exclusive possession in the vendee.38 If the facts as to transfer of possession are doubtful, a jury must pass upon the question.39

actual, substantial, and continued change of possession must necessarily depend upon the circumstances of each case. It is always a question of fact, and if there is any evidence in the case tending to show such a change of possession, it should, under proper instructions, be submitted to the jury. It is only in cases where there is no conflict in the evidence, or where, admitting all to be true which the testimony tends to show, the facts would be legally insufficient, that the court is justified in withdrawing the subject matter from the consideration of the jury, and passing upon it as a matter of law. 40 What is delivery in a reasonable time under a statute is ordinarily for the jury to determine." Where there has been no assumption of ownership, it is the duty of the court to pronounce a mere symbolical delivery of personalty to be insufficient, as against creditors of the seller; but, where there is evidence of such assumption of control, it is for the jury to say whether it was in good faith or merely colorable, and whether it was enough to give notice to the world.12 Where there is on one side the presumption against the legality of the transaction which the statute makes, and on the other the vendee seeking by his own oral testimony alone to repel that presumption, the matter may not be taken from the jury and passed upon by the court as a question of law.43 Whether the question of fraudulent intent, as based on the debtor's retention of possession of the property transferred by him, is one of law or fact, has been discussed under that heading in a previous chapter."

§ 7. Nature, source, and sufficiency of consideration.Whether the consideration for which a conveyance alleged to be fraudulent is alleged to have been executed is bona fide, or merely colorable to defraud creditors,45 or so inadequate as to constitute a

40. Rothchild v. Rowe, 44 Vt. 389. 41. Leeser v. Boekhoff, 38 Mo. App. 445; State v. Hellman, 20 Mo. App. 304.

42. Rex v. Jones, 6 Pa. Co. Ct. 401. 43. Tilson v. Terwilliger, 56 N. Y. 273.

44. See Retention of possession, chap. XII, §§ 2, 3, supra.

45. N. Y.-Bristol v. Hull, 166 N. Y. 59, 59 N. E. 698.

U. S.-Hinchman v. Parlin, etc.,
Co., 81 Fed. 157, 26 C. C. A. 323.
Ga.-Planter's, etc., Bank v. Wil-

49

46

badge of fraud and show a fraudulent intent, is a question of fact
which should be left to the jury upon the whole evidence in the
case. The good faith of a preference made to a creditor, where
the property transferred exceeds the amount of the claim secured,
is one of fact for the jury." Whether a deed executed by a parent
to his child in consideration of natural love and affection is fraud-
ulent, or not, as against creditors, is a question of fact for the
jury. 48
Where a conveyance of land is in consideration of future
maintenance, or a deed of trust is made to secure an antecedent
debt,50 the question of fraud is for the jury. A sale by one in
embarrassed circumstances to an infant, partly on credit, is not
void in law as against the creditor, but the question of fraud is
for the jury. The sale of all the debtor's property, with credit
for the greater portion of the purchase price, does not establish
fraud as a legal conclusion, but the question of intent must be left
to the jury.52 A mortgage is not necessarily fraudulent because
executed for a larger sum than is actually due from the mortgagor
to the mortgagee. If the amount is materially larger than that
due, this is merely a badge of fraud, and the question of fraud is
one of fact for the jury. Whether a chattel mortgage given to

53

leo Cotton Mills, 60 Ga. 168; Booker v. Worrill, 55 Ga. 332; Williams v. Kelsey, 6 Ga. 365.

Mich.-Warner v. Littlefield, 89 Mich. 329, 50 N. W. 721.

N. H.-Pomeroy v. Bailey, 43 N. H.

118.

N. C.-Black v. Caldwell, 49 N. C. 150.

Pa. Ferris v. Irons, 83 Pa. St. 179; Keen v. Kleckner, 42 Pa. St. 529; King v. Besson, 5 Pa. Cas. 59, 8 Atl. 198.

46. N. Y.-Gowing v. Warner, 30 Misc. Rep. 593, 62 N. 1. Supp. 797. Ga.-Williams v. Kelsey, 6 Ga. 365. Kan.-Dodson v. Cooper, 50 Kan. 680, 32 Pac. 370.

Mo.-State v. Mason, 112 Mo. 374, 20 S. W. 629, 34 Am. St. Rep. 390;

Stern, etc., Co. v. Mason, 16 Mo.
App. 473.

N. C.-Southern L. & T. Co. v. Ben-
bow, 135 N. C. 303, 47 S. E. 435.

47. Birdsall v. Walsh, 6 D. C. 316; Hand v. Hitner, 140 Pa. St. 166, 21 Atl. 260.

48. Jackson V. Timmerman, 7 Wend. (N. Y.) 436.

49. Hennon v. McClane, 88 Pa. St. 219.

50. Harvey v. Pack, 12 Miss.

229.

51. Matthews v. Rice, 31 N. Y.

457.

52. Clark v. Wise, 46 N. Y. 612, rev'g 57 Barb. 416; Harris v. Burns, 50 Cal. 140.

53. Wooley v. Fry, 30 Ill. 158; Goff v. Rogers, 71 Ind. 459.

55

secure future advances as well as an existing debt is fraudulent as to other creditors is a question of fact, not of law, although the mortgage does not state that the excess above the debt is for future advances. Whether a mortgage was made in good faith to cover future advances, or is a pretended security, is a question for the jury. It is a question for the jury whether the presumption of law that the sale of property, the consideration of which was paid by a third party, is fraudulent as against creditors of the person paying the consideration, has been rebutted by the evidence in the case. Where it is necessary to prove, as distinct facts, that a mortgage of personal property was made in good faith, and without any intent to defraud creditors or subsequent purchasers, and there is an admission that the mortgage was given for a good and valid consideration, it is proper to submit to the jury to decide whether such admission does not tend to prove the absence of fraudulent intent.57

56

§ 8. Indebtedness and insolvency.-The question whether a deed made by a person indebted is fraudulent is for the jury.58 The circumstance that a man was insolvent at the time of executing a conveyance is a matter to be left to the jury, as tending to influence them in finding that the deed was fraudulent.59 It is the province of the jury, and not of the court, to draw the inference of fraud from such facts.60 A gift by a husband or father, while indebted, to his wife or child, is presumably fraudulent, yet fraud may be disproved, and whether fraudulent or not is a question of fact for the jury. Under a statute pro

54. Wood v. Franks, 67 Cal. 32, 7 Pac. 50.

55. Tully v. Harloe, 35 Cal. 302, 95 Am. Dec. 102.

56. Foster v. Berkey, 8 Minn. 351. 57. Groat v. Rees, 20 Barb. (N. Y.) 26.

58. Thacher v. Phinney, 89 Mass. 146; Filley v. Register, 4 Minn. 391, 77 Am. Dec. 522; Lutton v. Hesson,

61

18 Pa. St. 109; Forsyth v. Matthews, 14 Pa. St. 100, 53 Am. Dec. 522.

59. Cal.-Knox v. Moses, 104 Cal. 502, 38 Pac. 318; Bull v. Bray, 89 Cal. 286, 26 Pac. 873, 13 L. R. A. 576.

Ky.-McConnell v. Brown, 16 Ky. 459. Miss.-Ladnier v. Ladnier, 64 Miss. 368, 1 So. 492.

60. Kerr v. Hutchins, 46 Tex. 384. 61. French v. Holmes, 67 Me. 186.