case, the fraud vitiates the first sale and the subsequent purchaser, if in good faith, for value and without notice will take the goods, leaving the first purchaser to his action against the vendor for non-delivery of goods bargained and sold.' The result at common law and under statute would be precisely the same, although reached by different roads. "Actual delivery by the vendor to the vendee is not in all cases necessary. It is enough if the delivery be such as the situation of the property admits. Thus where the goods sold are in a ware house, the delivery of the key is sufficient;10 and where the goods are so situated as to admit of no delivery, the sale will be valid without any delivery, as in the case of the sale of goods already in the possession of the vendee." When the goods sold are so situated as a erty, after the sales, is The rule is founded upon the presumption that a purchaser will naturally perfect his purchase, by taking possession. The enjoyment of the thing purchased, is generally, if not always, the object a purchaser hás in view; and his neglect to take possession is, therefore, so unusual and contrary to general experience as to be very strong evidence that the purchase was only colourable and not real. And the reason of extending it from a mere rule of evidence, calling it a badge of fraud only, and arbitrarily declaring, as matter of law that it renders the sale void, as to creditors, notwithstanding the highest evidence of honesty of the sale, is because it has been thought better to take away the temptation to practice In some States, retention of possession by the vendor after sale is made a conclusive presumption of fraud by statute. 2 Mechem on Sales, § 985, note 2. The retention of possession as fraud upon the creditors will be considered in Sec. 26. 9. Brady v. Cassidy, 104 N. Y. 147, 145 N. Y. 171. A vendor under obligation to sell goods upon the performance of a condition precedent, can sell the goods to a third person and give perfect title, leaving the vendee to his action for damages for a breach of contract to deliver to him. New Haven Wire Co. Cases, 57 Conn. 352, 383, 5 L. R. A. 300. 10. Hollingsworth V. Napier, 3 Caines (N. Y.), 182. 11. Manton v. Moore, 7 T. R. 67. that there can be no delivery at the time of sale, the case forms an exception to the general rule, and it is sufficient that the vendee, without any gross laches, takes possession and asserts his title in a reasonable time after he has an opportunity to take possession. The sale of a ship and of goods at sea is a common case which comes within this exception. It is well settled that if possession be taken in a reasonable time after their arrival, the vendee is entitled to hold them even against a creditor of the vendor who had attached them before the vendee could obtain possession.' 12. Ricker v. Cross, 5 N. H. 570. Citing Wheeler v. Sumner, 4 Mason (U. S. C. C.), 183; Portland Bank v. Stacey, 4 Mass. 661; Portland Bank v. Stubbs, 6 Mass. 422; Meeker v. Wilson, 1 Gall. (U. S. C. C.) 419. See Eagle v. Eichelberger, 6 Watts (Pa.) 29; Linton v. Butz, 7 Pa. St. 89; Hugus v. Robinson, 24 Pa. St. 9; Barr v. Reitz, 53 Pa. St. 256; McMarlan v. English, 74 Pa. St. 296; Evans v. Scott, 89 Pa. St. 136; Crawford v. Davis, 99 Pa. St. 576; McClure v. Forney, 107 Pa. St. 414; Renninger v. Spatz, 128 Pa. St. 524. The owner of a horse kept at a livery stable, agreed at another place to sell it, received the price from the purchaser, and at the same time the seller paid the stabler for the previous keep of the horse, and the purchaser directed him to continue to keep it and feed it on hay and promised to pay him therefor; and the stabler afterwards removed the horse from the stall in which it had been to another more convenient for feeding it with hay; held, that in the absence of fraud, these facts showed a delivery of the horse as against a subsequent attaching creditor of the seller. Bullard v. Wait, 82 Mass. (16 Gray) 55, 57. Citing Tuxworth v. Moore, 20 Mass. (9 Pick.) 347; Whipple v. Thayer, 33 Mass. (16 Pick.) 25, 28; Carter v. Willard, 36 Mass. (19 Pick.) 1, 8; Appleton v. Bancroft, 51 Mass. (10 Met.) 231, 236. The vendee bought an unfinished piano in the shop of the maker, who was to finish it, and a bill of sale was 9912 then and there made, the price paid at a subsequent day, the piano being left to be finished; held, to be a delivery of the piano sufficient to pass the title against a subsequent purchaser. Thorndike v. Bath, 114 Mass. 116, 118. A father gave his son a bill of sale of his household furniture, and a month later gave a woman whom he married shortly after, another bill of sale, without notice of the first. In an action of replevin, the jury found for the son on the ground that the first bill of sale had conveyed good title and that he had not lost or waived it. Freelove v. Freelove, 128 Mass. 190, 191. Citing Fox v. Harding, 61 Mass. (7 Cush.) 516; Priest v. West v. Wheeler, 101 Mass. 479; Platt, 120 Mass. 421. The delivery of a bill of parcels of a chattel to a purchaser who thereupon gives to the seller a lease of the chattels, if there is no other delivery, or change of possession, is not sufficient to pass the title as against a subsequent purchaser in good faith from the original seller. As between the vendor and vendee "the title to the pianos passed without delivery; but as against a subsequent purchaser from the vendor in good faith, it did not pass, for there was no actual or constructive delivery of the property." Harlow v. Hall, 132 Mass. 232. Citing Carter v. Willard, 36 Mass. (19 Pick.) 1; Burge v. Cone, 88 Mass. (6 Allen) 412; Dempsey v. Gardner, 127 Mass. 381, and cases cited. The retention and subsequent sale of documents of title is governed by the same principles as retention and sale of the goods themselves.13 PURCHASER.-The subsequent purchaser protected by the provisions of this section is one who in good faith,14 for value, and without notice,15 "becomes the buyer of the goods by contract, by the mutual assent of the parties, express or implied; who, of his own desire, negotiates for them and pays a price agreed upon, and receives a transfer of them from one who of his own will sells and delivers them and not a wrongdoer upon the property, who, against his will, is cast in judgment for the value of it, and takes title unwillingly by operation of law upon payment of the judgment." Section 26. Creditor's Rights Against Sold Goods in Seller's Possession. Where a person having sold goods continues in possession of the goods, or of negotiable documents of title to the goods, and such retention of possession is fraudulent in fact, or is deemed fraudulent under any rule of law, a creditor or creditors of the seller may treat the sale as void. The Act does not apply to fraud in general, but expressly leaves that to the law as it now stands.1 "The general rule undoubtedly is that the purchaser of goods must, for the protection of the public, take such possession as is usual and reasonable in view of all the circumstances of his purchase. If he neglects this obvious duty, then, as between himself and subsequent vendees or creditors, he must bear the loss resulting from his neglect. Stephens v. Gifford, 137 Pa. St. 219. The object of a change of possession is to break "the previous visible relation between the owner and his goods." Stephens v. Gifford, supra. 13. Hallgarten V. Oldham, 135 Mass. 1; Cahn v. Pockets Bristol Channel Co. (1899), 1 Q. B. 643 C. A.; 1 Mechem on Sales, § 166. 14. See Sec. 76. 15. Notice. The recording of a It deals with fraud upon deed conveying both real and personal estate is constructive notice of the transfer of the land, but not of the chattels. Pitcher v. Barrows, 34 Mass. (17 Pick.) 361; Douglass v. Shumway, 79 Mass. (13 Gray) 498, 502. Recording a mortgage of personal property in the absence of statutory provisions to the contrary is not constructive notice. Robinson v. Bird, 158 Mass. 357, 361. Citing George v. Wood, 91 Mass. ( 9 Allen) 80, 83; Western Union Telegraph Co. v. Caldwell, 141 Mass, 489; Bates v. NorSee eross, 31 Mass. (14 Pick.) 224. Sec. 23. 16. Marsden v. Cornell, 62 N. Y. 215; 2 Mechem on Sales, § 992. 1. In any case not provided for in this act the rules of law and equity creditors inferred or presumed from the retention after the sale by the vendor of possession of the goods, or negotiable documents of title representing them. It is framed to be declaratory of the existing rules of law common to all the States. 3 REASON OF THE RULE.-Possession is the principle indicium of the ownership of personal property. In giving credit, vendors are justified in assuming that the vendee is the owner of the personal property in his possession. The retention after sale by a seller of the possession of the goods sold enables him to assume a false appearance of financial responsibility, and so to deceive his vendor from whom he is soliciting credit. 2. "The law in this country as to the effect of retention of possession on the rights of creditors is in such conflict, and the different rules are locally so firmly fixed, that it seemed unwise to try to provide a uniform rule. All States, however, agree that if the retention is fraudulent in fact, the sale is void as to creditors. The draft, therefore, so provides, and as to other cases-cases of constructive fraud-adopts the locally prevailing rule." Draft of Sales Act of Commissioners on Uniform State Laws, page 46. 3. Patten v. Smith, 5 Conn. 196, 200; Colt v. Ives, 31 Conn. 25, 35. Possession of personal property is the only indicium of ownership." Taintor v. Williams, 7 Conn. 271, 273. "Continued possession is to be regarded as a sure indicium of continued ownership." Capron v. Porter, 43 Conn. 383, 389. "The possession of personal property is, unexplained, prima facie evidence of ownership in the possessor; but as it is consistent with ownership in another, it is not conclusive; and whether the person in possession is the owner, depends, not upon the mere fact that he is in possession of it, but upon the nature and character of that possession." Avery v. Clemons, 18 Conn. 306, 309. "The sale of goods and chattels is a transmutation of the property from one to another, accompanied, whenever it is practicable, with a delivery of the articles to the purchaser. It is so much of the essence of a sale, that there be a delivery of the possession, that to permit the chattels sold to remain in the hands of the vendor, is an extraordinary exception to the usual course of dealing, and requires a satisfactory explanation." Patten v. Smith, 5 Conn. 196, 199. 4. Patten v. Smith, 5 Conn. 196, 200, 4 Conn. 450; Heubler v. Smith, 62 Conn. 186, 190; Talcott v. Wilcox, 9 Conn. 134; Colt v. Ives, 31 Conn. 25, 35. 66 The reason of the rule is, that as against a person who was once the owner of the property and all who claim by purchase from him, the continued possession is to be regarded as a sure indicium of continued ownership, and that the possessor would obtain by such continued possession a false credit to the injury of third persons if there was no such rule to protect them. But the possession of property never owned by the possessor raises no such presumption. Any one can safely put his personal property in another's possession or give another the use of it without imperiling his Again, if possession of goods by the vendor after sale were not made strong presumptive evidence of ownership, a debtor might easily shield his goods from attaching or levying creditors by setting up a fictitious claim of sale, mortgage, or attachment of title." Capron v. Porter, 43 Conn. 383, 389. "But, aside from the terms of the statute, it may be said that men commonly act in their daily affairs upon the presumption that the goods remaining in the hands of the former owner, with nothing to indicate that the relations of the parties was changed, gives a false and deceptive credit, and puts it in his power to sell them again to an innocent purchaser. This permits innocent purchasers to be misled by apparent ownership of goods where real ownership does not exist through an undisclosed transfer to another. Hence public policy requires that while goods remain in possession of the former owner with the consent of the purchaser they should, as to innocent third persons, be treated as his property. Streeper v. Eckart, 2 Whart. (Pa.) 301; Stephens v. Gifford, 137 Pa. 219, 228; Allen v. Massey, 84 U. S. (17 Wall.) 354; Reed v. Eames, 19 Ill. 594; Ticknor v. McClelland, 84 Ill. 471; Burnell v. Robertson, 5 Gil. (Ill.) 291; Norton v. Doolittle, 32 Conn. 405, 410; Davis V. Bigler, 62 Pa. 242, 248; Weeks v. Prescott, 53 Vt. 57, 71." Flanagan v. Pomeroy, 85 Minn. 264, 267. "It is said that one reason given for the rule making the retention of possession by the vendor fraudulent, is that the possessor thereby may gain a false credit, and that the creditor actually misled ought to be allowed to set aside the transaction. This would require a radical change in our law. The inquiry is not whether the creditor was in fact misled, or when and under what circumstances his debt was contracted, or whether the debt is old or new, but simply whether he attached the property while posses. sion was retained by the vendor." Gilbert v. Decker, 53 Conn. 401, 405. The reasons upon which the rule under consideration is founded are: (1) That the retention of possession by the seller gives him a delusive credit, and might enable him to practice a fraud by reselling to one not informed of the previous sale. (2) That the possession of the seller under such circumstances is incompatible with the sale, and is evidence of collusion." Vanmeter v. Estill, 78 Ky. 456, 458. 4a. Where a fraudulent conveyance of property is made for the purpose and with the intent to defraud creditors by concealing it from attachment, an action on the case to recover damages for that cause, by one of the creditors against the parties to such fraudulent conveyances cannot be maintained. Austin v. Barrows, 41 Conn. 289, 297; Cowles v. Day, 30 Conn. 410; reviewing Adler v. Fenton, 65 U. S. (24 How.) 407, 413; Smith v. Blake, 1 Day (Conn.), 258; Lamb v. Stone, 28 Mass. (11 Pick.) 527; Wellington v. Small, 57 Mass. (3 Cush.) 145; Moody v. Benton, 27 Me. 427. 5. Patten v. Smith, 4 Conn. 450, 455, 5 Conn. 196, 200; Bishop v. Warner, 19 Conn. 460, 470; Gaylor v. Harding, 37 Conn. 508. "Possession is the principle indicium of property in goods and chattels; and the retention of them by the vendor after the sale, exhibits him to the world as the owner of them; and, by necessary consequence, is calculated to give him a false or fictitious credit. Besides, no good reason can be assigned why the buyer should leave them in the hands of the vendor, unless by the exhibition of false appearances to aid him in imposing on mankind. In the case of a mortgage, the |