of law, are asserted not only in a tone equally explicit and decided as in the English cases in the age of Mansfield and Buller, but with much greater precision and more powerful and convincing argument. There is another series of decisions, however, which have, under sanction, established a more lax and popular doctrine. In North Carolina, it is held, that whether a deed be fraudulent or otherwise, from the want of possession in the vendee, or within the operation of the statute of 13 Eliz. ch. 5, was a question of fact, and not of law. (a) The Supreme Court of that state, in a more recent case, (b) carried the relaxation of the English rule to a great extent. A bill of sale of a horse was absolute on its face, but taken as a security for a debt, and possession was left with the vendor. The property, after being kept by the debtor for six years, was seized on execution by another creditor; and the court decided that such a transaction was only

2 Vermont, 181; and it was declared, that unless a purchase be followed by a visible change of possession, the property will continue liable to the creditors of the vendor Judd & Harris v. Langdon, 5 Vermont, 231. Baylies J., Ibid. 531, S. P. In Farnsworth v. Shepard, 6 Vermont, 521, the Supreme Court of Vermont adhered to their former decisions with great resolution, and declared that a sale of personal property, unaccompanied with a change of possession, was per se fraudulent as against the creditors, of the vendor. "This still remains," said Mattuck, J., "the settled law of the land; and although some learned gentlemen of the law have supposed that the court would eventually retrace their steps, as the courts in some of the neighboring states have done, that is leave that as a badge of fraud to a jury, yet we are not disposed to reccde a jot, nor to advance a whit, but to remain stationary upon this, in other governments, vexed questions, so as to give this branch of the law, at least, the quality of uniformity." I think this decision reflects the highest honor upon the firmness of the court, and it is a consoling example of the triumph of the conservative principle in our jurisprudence. How long the court will be able to stand on that ground is another question. Wilson v. Hooper, 12 Vermont, 653, S. P.

(a) Vick v. Kegs, 2 Hayward, 126. Falkner v. Perkins, Ibid. 224. Smith v. Niel, 1 Hawk, 341. Trotter v. Howard, Ibid. 320. (b) Howell v. Elliott, 1826, 1 Dev. 76.

there is no fraud in law. Ridout v. Benton, 1 Wms. (27 Vt.) 383. The possession of the vendor, in order to raise the presumption of fraud, must be actual. If it is only constructive, his right of possession passes in the first sale without moving the property. Hutchins v. Gilchrist, 23 Vermont, 82. The courts of Connecticut continue to support the old rule. Kirtland v. Snow, 20 Conn. 23, 30.

3 The courts manifest no disposition to recede from their position. Mills v. Warner, 19 Vermont, 609. And the change of possession required must be such that any one, on reasonable inquiry, would learn such facts that he would be bound to know the vendee's or mortgagee's lien and control of the property. Parker v. Kendrick, 3 Wms. (29 Vt.)

presumptive evidence of fraud for a jury; and as they had found no fraud in the fact, the verdict was sustained. (c) 6

(c) In 1830, provision was made by law, in North Carolina, for the registry of deeds of trust or mortgage of chattels; and they were not to be valid in law, as against creditors or purchasers for a valuable consideration, without such registry. This will prevent the inconvenience of the antecedent doctrine. There were also statutes in 1784, 1801,

and 1820, providing for the registry of bills of sale of chattels. In Gregory v. Perkins, 4 Dev. (N. C.) 50, it was decided that a deed absolute on its face, but executed upon a parol agreement for redemption, is, in law, fraudulent and void, as against the creditors of the vendor; and the registry of it under the statute did not add to its validity. The object of the Registry Act was to give notice of the existence and extent of incumbrances, as mortgages, deeds or conveyances in trust, and the true character of the deed must appear on the record, to give it protection. In that case, C. J. Ruffin observed that fraud was matter of law, and a question for the court, but the actual intent was generally concealed, and was within the province of a jury, and in that sense, fraud is a mixed question. But when the facts are ascertained, the conclusion is exclusively matter of law. The English rule prevailed for some time in North Carolina, that possession retained by the vendor, was per se fraudulent. But it admitted of so many exceptions proper for the jury, as to the intents, that the rule itself hardly remained; and the court finally resorted, as has been done in New York, to the plain rule of leaving to the jury the possession, as a fact and ground of presumption, under all the circumstances, whether or not there was a secret trust and a fraudulent intent, without, however, intending to leave it to the jury to follow their own uncertain judgment, when the ascertained facts would, in judgment of law, amount to a fraudulent intent. Decisions so guardedly and firmly expressed, are exceedingly consoling and valuable. The case of Leadman v. Harris, 3 Dev. 146, contained the same sound doctrine. So in Wilson v. Hensley, 4 Ired. (N. C.) 66, where a levy had been made on execution of personal property, and possession immediately restored to the defendant, a levy by another officer on a subsequent execution was preferred. The doctrine in Tennessee and Alabama is, that on a sale of goods by deed, absolute on its face, without possession accompanying the deed, it is only primâ facie evidence of fraud, and not fraudulent per se.5 Callen v. Thompson, 3 Yerger, 475. Darwin v. Handley, Ibid. 502. See, also, the case of Maney v. Killough, supra, p. 522, note d; Blocker v. Burness, 2 Ala. (N. S.) 354. This

If the sale be fraudulent, it is still absolutely void. Flynn v. Williams, 7 Ired. 32.

5 Continuance in possession of chattels after a sale at public auction is not primâ facie fraudulent. Abney v. Kingsland, 10 Ala. 355.

a

• In Mississippi and Arkansas, possession of personal property by the vendor is primâ facie evidence of fraud only. Comstock v. Rayford, 12 Smedes & Marsh. 369. Field v. Simco, 2 Eng. 269. Cocke v. Chapman, Idem, 197. So in Georgia. Peck v. Land, 2 Kelly, 1. And the presumption of fraud is rebutted by proof of payment of valuable consideration. Scott v. Winship, 20 Geo. 429. Goodwyn v. Goodwyn, Ibid. 600. And in Texas, McQuinney v. Hitchcock, 8 Texas, 33. Converse v. McKee, 14 Texas, 20. Earle v. Thomas, Ibid. 583. And so in Winconsin. Whitney v. Brunette, 3 Wis. 621. Cotton v. Marsh, 3 Wis. 221. By the statute of frauds of California, if the sale be not accompanied by immediate delivery and followed by an actual and continued change of possession, it is conclusive evidence of fraud; and the courts of California show no disposition to relax the vigor of the statute. See Fitzgerah v. Gorham, 4 Cal. 289, and Cheney v. Palmer, 6 Cal. 119. In Florida, the rule of Edwards v. Harben seems to be adopted. Gibson v. Love, 4 Florida, 217. Sanders v. Pepoon, Ibid. 465. But it is otherwise in Louisiana by the Code. Jorda v. Lewis, 1 La. Ann. 59.

In New York, the current language of the court originally was, (d) that the non-delivery of goods at the time of the sale or mortgage was only prima facie evidence of fraud, and a circum

stance which admitted of explanation. But in Sturtevant * 527 v. Ballard, (e) the subject received a more full and de liberate consideration, and the English and American authorities were extensively reviewed; and it was decided, that on a bill of sale of goods, partly for cash and partly to satisfy a debt, with an agreement in the instrument that the vendor was to retain the use and occupation of the goods for the term of three months, the goods were liable to the intervening execution of a judgment creditor. It was considered to be a settled principle of law, that if the vendor be permitted to retain possession in the case of an absolute bill of sale of chattels, it was an act of fraud in law as against creditors; and that though the agreement appear on the face of the deed, it would be equally so, unless some good motive was at the same time shown. The rule applied equally to conditional as well as absolute sales, unless the intent of the parties in creating the condition was sound and legal. Fraud was the judgment of law on facts and intents, and it was a question of law when there was no dispute about the facts. (a) The result of the investigation was, that a voluntary sale of chattels, with an agreement, in or out of the deed, that the vendor may keep possession, is, except in special cases and for special reasons, to be shown to and approved of by the court, fraudulent and void as against creditors.

This decision we supposed to have established, on sound foundations, the rule of law in New York, so far as that rule depended upon the judgment of the Supreme Court. But though the decision has been cited and approved of in other states, (b) it was

seems also to be the rule in Mississippi, Carter v. Graves, Howard I. And in Kentucky the courts go so far as to hold, that possession of goods by a mortgagor is not only not fraudulent per se, but in many, and perhaps in most cases, not even evidence of fraud in fact. 2 Dana (Ken.) 204. In Missouri, on the other hand, the principle which seems to be declared in the case of King v. Bailey, 6 Missouri, 575, is, that possession of personal property by the vendor, after a sale, either absolute or conditional, is fraudu lent and void in law, as against creditors prior or subsequent.

(d) Barrow v. Paxton, 5 Johns. 258. Beals v. Guernsey, 8 Ibid. 452.

(e)

Johns. 337.

(a) Fraud is a question of law on facts and intents. Mansfield, 1 Burr. 474. Buller J., 2 Term Rep. 596. (b) 5 Serg. & Rawle, 285. 5 Conn. 200. 1 Aiken,

Lord Coke, 2 Bulst. 226. Lord Lord Ellenborough, 9 East, 64. 158, 162. 6 Vermont, 521.

doomed to have a very transient influence on its own tribunal. In Ludlow v. Hurd, (c) the chief justice left it as a debatable point, whether the retaining possession of chattels by the vendor, after an absolute sale of them, was ipso facto fraudulent, or only a badge of fraud for the consideration of a jury; and in Bissell v. Hopkins, (d) * the doctrine of the case of Sturte-* 528 vant v. Ballard was entirely subverted, and it was adjudged that possession continuing in the vendor was only primâ facie evidence of fraud, and might be explained. But in Divver v. M'Laughlin, (a) it was held that. a mortgage of goods, in a case in which the mortgagor was suffered to continue in possession, and to act as owner for two years and a half after the mortgage had become absolute, was fraudulent in law, and void as to creditors, however honest the intention of the parties might have been. This was, in some degree, reinstating the earlier doctrine, and a recognition of the principle declared in Sturtevant v. Ballard; and the decision is deemed to be sound and salu- * 529 tary. (a)

(c) 19 Johns. 221. (d) 3 Cowen, 166.

(a) 2 Wendell, 596.

Collins v. Brush, 9 Wendell, 198, S. P.

(a) The New York Revised Statutes have put this vexatious question at rest in this state, as to the effect of the non-delivery of goods on sale or assignment, by way of mortgage, or upon condition, by declaring that unless the sale or assignment be accompanied by an immediate delivery, and be followed by an actual and continued change of possession, it shall be presumed to be fraudulent and void as against the creditors of the vendor, or person making the assignment, and against subsequent purchasers in good faith; and shall be conclusive evidence of fraud, unless it shall be made to appear, on the part of the persons claiming under such sale or assignment, that the same was made in good faith and without any intent to defraud. All persons who shall be creditors, while the goods remain in the possession or under the control of the vendor or assignor, are embraced in the provision; but it does not apply to contracts of bottomry or respondentia, nor to assignments or hypothecations of vessels or goods at sea, or in foreign ports. N. Y. Revised Statutes, vol. ii. p. 136, secs. 5, 6, 7. It is further declared, that the question of fraudulent intent, in all cases of fraudulent conveyances and contracts relative to real and personal property, shall be deemed a question of fact and not of law; and no conveyance or charge is to be adjudged fraudulent, as against creditors or purchasers, solely on the ground that it was not founded on a valuable consideration. The title of a purchaser for a valuable consideration is not to be affected or impaired by any of the provisions, unless he had previous notice of the fraudulent intent of the grantor, or of the fraud rendering void the title of such grantor. Ibid. 137, secs. 4, 5. Though fraud in those cases is declared to be a question of fact, and a court of equity is competent to pronounce upon it, yet, if the case be brought to hearing upon bill and answer, and the latter denies the fraudulent intent, the court will require such facts as

The Supreme Court of Massachusetts has, in several cases, (b) laid down and established the doctrine, that possession of chattels

are per se conclusive evidence of fraud. It will overlook the mere indicia of fraud, for the complainant should have put the cause at issue, and have given the defendant an opportunity to explain by proof the suspicious circumstances. Cunningham v. Freeborn, 11 Wendell, 240. The doctrine now established is evidently as high-toned as any that the courts of justice in this country can, by a permanent practice, sustain; and it contains this inherent and redeeming energy, that the fact of withholding possession raises the presumption of fraud, and the burden of destroying that presumption is thrown on the vendee or mortgagee, who suffers the possession to remain unchanged.

The courts of New York have since given increased energy to the statute provisions against fraudulent sales. Thus, in Doane v. Eddy, 16 Wendell, 523, and Randall v. Cook, 17 Ibid. 53, it was considered, that under the, Revised Statutes, the distinction between an absolute sale and a mortgage of goods was abolished, and that on a sale or mortgage of goods, actual and continued change of possession was indispensable, unless the contrary be satisfactorily explained by some good and sufficient reason, even though the conveyance was made in good faith, and without any intent to defraud. So, in Butler v. Stoddard, 7 Paige, 163, the chancellor held, that if an insolvent debtor assigns his property in trust for the benefit of creditors, and without any actual change of possession, and the assignee leaves the goods in store, in the possession of the assignor as his agent, to be sold in the ordinary course by retail, instead of disposing of them at once without any unreasonable delay, and fairly, by auction, and distributing the proceeds, the assignment becomes fraudulent and void as to creditors. The assignment ought to be accompa nied with an actual and continued change of possession, and not merely a nominal and constructive change, for the latter is not a change within the meaning of the statute on the subject. This decree was affirmed on appeal, 20 Wendell, 507. So again, in Stevens v. Fisher, 19 Wendell, 181, the Supreme Court set aside a verdict, and awarded a new trial, when the jury disregarded the charge of the judge, and supported a sale of goods unaccompanied by an immediate delivery, and not followed by any actual and continued change of possession, and when no satisfactory explanation was given why the requirements of the statute were not complied with. It was held to be a verdict against both the law and the fact. These were infallible and legal indicia of fraud on the face of the transaction. It was nakedly fraudulent, and the court very properly held, that they could not permit the law to be so disregarded. But see Smith v. Acker, 23 Wendell, 653, a great relaxation of the preceding doctrine; and it was held by a majority of the Court of Errors, in accordance with the received doctrine in the Revised Statutes of N. Y., that a mortgage of chattels, unaccompanied by an immediate delivery, and not followed by an actual and continued change of possession, was not void, provided it was made in good faith, and without any intent to defraud purchasers or creditors,—and that the question of intent was a matter of fact for a jury.

In White v. Cole, 24 Wendell, 116, this very vexatious subject of the sale or mortgage of chattels without delivery, was again extensively discussed, and the most conservative and wholesome principles of law applicable to the case, enforced in the opinion of the court, delivered by Mr. Justice Cowen. A vessel on Lake Ontario was

(b) Brooks v. Powers, 15 Mass. 244. Bartlett v. Williams, 1 Pick. 288. Holmes v. Cuane, Ibid. 607. Wheeler v. Train, 3 Ibid. 255. Ward v. Sumner, 5 Ibid. 59. Shumway v. Rutter, 7 Ibid. 56. 8 Ibid. 443, S. C. Adams v. Wheeler, 10 Ibid. 199. Marden v. Babcock, 2 Metcalf, 99. Briggs v. Parkman, Ibid. 258.