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debtor. The decision in this case was conformable to one made by lord Holt under similar circumstances ;a and Lord Eldon many years afterwards, when lord chancellor, adhered to the same doctrine, and declared, that possession of chattels by the vendor was only prima facie evidence of fraud. If the property cannot be reached by bankruptcy, and the possession be according to the deed which creates the title, and the title be publicly created, it is not fraudulent. Other cases have protected the purchaser of goods seized on execution, (and whether the purchase was from the sheriff or the defendant seemed to be immaterial,) from subsequent executions, though the goods were suffered to continue in the possession of the defendant, on the ground that the transaction was necessarily notorious to the whole neighbourhood, and the execution notice to the world; and the cases being free from fraud in fact, were under those circumstances, free from the inference of fraud in law. The question of fraud in such cases is declared to be a question of fact for the jury. The purchaser of goods sold at auction, by trustees, under an assignment by an insolvent debtor, is also protected, though he leave the goods in the possession of "the prior owner, provided it be a matter of fact to be found by a jury, that the assignment was not made with a fraudulent intent, and that the sale was notorious.d

*520

So, a person may lend his goods for another's use, and except in cases of bankruptcy under the statute of 21

■ Cole v. Davies, 1 Lord Raym. 724.

b Lady Arundell v. Phipps, 10 Vesey, 145.

• Watkins v. Birch, 4 Taunt. Rep. 823. Joseph v. Ingraham, 8 Ibid 338. Latimer v. Batson, 4 Barnw. & Cress. 652. But in Imray v. Magney, 11 Meeson & Welsby, 267, where goods were seized on execution under a judgment fraudulent against creditors, and they remained unsold in the hands of the sheriff who received a subsequent execution founded on a bona fide debt, and after notice of the fraud, neglected to sell on the latter writ and returned it nulla bona, he was held liable to an action for a false return.

a Leonard v. Baker, 1 Maule & Selw. 251.

James I., they will be protected from the creditors of the person for whose use they were supplied.a In Steward v. Lombe, as late as 1820, the court of C. B. even questioned very strongly the general doctrine in Edwards v. Harben, that actual possession was necessary to transfer the property in a chattel, and the authority of the case itself was shaken. The conclusion from the more recent English cases would seem to be, that though a continuance in possession by the vendor or mortgagor be prima facie a badge of fraud, if the chattels sold or mortgaged be transferable from hand to hand, yet the presumption of fraud arising from that circumstance may be rebutted by explanations showing the transaction to be fair and honest, and giving a reasonable account of the retention of the possession. The question of fraud arising in such cases, is not an absolute inference of law, but one of fact for a jury; and if the personal chattels savour of the realty, as for instance, the engines, utensils and machinery belonging to a manufacturing establishment, no presumption of fraud will arise from the want of delivery. So a bill of sale of goods is good as between the parties, though no possession be given at the time, when the interest of third persons are not concerned.e

■ Dawson v. Wood, 3 Taunt. Rep. 256.

b 1 Brod. & Bing. 506.

The case was however corroborated in Reed v. Wilmot, 7 Bingham, 583, and by Mr. Justice Lawrence, in 1 Taunton, 382.

Reed v. Blades, 5 Armstrong v. Bal

& Eastwood v. Brown, 1 Ryan & Moody, 312. Wooderman v. Baldock, 8 Taunt. Rep. 676. Joseph v. Ingraham, Ibid. 838. Ibid. 312. Hoffman v. Pitt, 5 Esp. N. P. Rep. 22. dock, 1 Gow's N. P. Rep. 33. Storer v. Hunter, 3 Barnw. & Cress. 368. Martindale v. Booth, 3 Barnw. & Adolph. 498. On the other hand, where goods were seized on fi. fa. and not sold by direction of the plaintiff, but left under the control of the defendant from March to November, the execution and levy were deemed fraudulent, and the goods were held to be liable to a subsequent fi. fa. Lovick v. Crowder, 8 Barnw. & Cress. 132.

• Warren v. Magdalen College, 1 Ro. 169. Martindale v. Booth, 3 B

The law on this subject is still more unsettled in this country than it is in England.

*In the supreme court of the United States, the *521 doctrine in Edwards v. Harben, has been explicitly and fully adopted; and it is declared, that an absolute bill of sale is itself a fraud in law, unless possession accompanies and follows the deed. This decision, of course, leaves open for discussion the distinction taken in that case between a bill of sale absolute, and one conditional upon its face, and also the conclusions in the other cases where the continuance of possession in the vendor is consistent with the deed. The principle of the decision at Washington has been adopted in the circuit courts of the United States, and we may consider it to be a settled principle in federal jurisprudence. In pursuance of the rule, if property be abroad, and incapable of actual delivery at the time, as in the case of a ship at sea, the possession must be assumed as soon as possible on the arrival of the vessel in port.b

In Virginia, the same principle has been directly and repeatedly adjudged to be well settled; and it is declared, that an absolute bill of sale of personal property, with possession continuing in the vendor, is fraudulent per se as to creditors, without other evidence of fraud, or being connected with other circumstances.c

In

Ald. 505. Jones v. Yates, 9 B. & Cress. 512. Doe, ex Roberts v. Roberts, 2 B. & A. 369. A deed constructively fraudulent as to creditors, may be good to every other intent and purpose, and stand both in law and equity. 1 Story's Eq. 364, 365, 371.

a Hamilton v. Russell, 1 Cranch's Rep. 309.

⚫ United States v. Conyngham, 4 Dall. Rep. 358. S. C. Wallace C. C. R. 178. Meeker v. Wilson, 1 Gall. Rep. 419. Mair v. Glennie, 4 Maule Selw. 240.

• Alexander v. Deneale, 2 Munf. Rep. 341. Robertson v. Ewell, 3 Ibid. 1. In Loud v. Jeffries, 5 Randolph's Rep. 211, the rule was somewhat qualified; and it was held, that when the grantor of personal property remains in possession after an absolute conveyance, the conveyance, is prima facie fraudulent; but such possession is not conclusive evidence of fraud barring every explanation. It will lay with the purchaser to explain and

*South Carolina, the same doctrine was alluded to as being founded on the better authority; and in one case in equityb it was decided, that if possession did not accompany a bill of sale of chattels which was not recorded, it was void as to the creditors, though there was no doubt of the fairness of the transaction. Afterwards, in the constitutional court, the doctrine of the English law, in Edwards v. Harben, was declared by all the judges to be a settled rule. In Tennessee, also, the doc

rebut the presumption of fraud; as if a slave be purchased, and not taken away in several months, it may be shown that he was too sick to be removed; or if a horse be purchased, and to be sent for the next day, a levy upon him in the intermediate time upon execution against the seller, it was supposed, would hardly be sustained. In Clayton v. Anthony, 6 Randolph's Rep. 285, Judge Green elaborately investigates the doctrine, and ably sustains the rule established by the previous authorities. Again, in Sydnor v. Gee, 4 Leigh's Rep. 535, the court of appeals held, that in case of an absolute sale and delivery of chattels, and an immediate re-delivery to the vendor, upon bailment, for a limited time, on valuable consideration, and when the sale and re-delivery were fair transactions, the bailment was not inconsistent with the sale, and good within the rule of Edwards v. Harben. It was also deemed within the rule, and good, if on an absolute and fair sale of chattels, possession be not immediately passed to the vendee, but is taken before the rights of any creditor of vendor attaches. This is the Massachusetts doctrine in Bartlett v. Williams, 1 Pick. Rep. 288. So, the statute of executions in Virginia, authorizes the sheriff to take forthcoming bonds for delivery, at the day and place of sale, of property taken in execution.

a Croft v. Arthur, 3 Eq. Rep. S. C. 229.

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McCord's Rep. 294, S. P. But in Terry v. Belcher, and Howard v. Williams, 1 Bailey's S. C. Rep. 568, 575, and Smith v. Henry, 2 Ibid. 118, the court of appeals in South Carolina recurred to and adopted the more modern and prevalent, and less stern doctrine of the cases, that a vendor's or donor's retaining possession after an absolute and unconditional sale or gift of chattels, was not conclusive, but only prima facie evidence of fraud for it was susceptible of explanation. See infra, p. 529, note a. But in Anderson v. Fuller, 1 M'Mullan, 27, the case of Smith v. Henry, in 1 Hill, 22, was cited as warranting the principle that if a debtor in a deed of assignment, secures an advantage to himself, it invalidates the deed, and that leaving the property in the hands of the debtor, raises the presumption of a secret trust between the debtor and the preferred creditor, and

trine of the English law, as stated in Edwards v. Harben, is clearly asserted. In Kentucky, the same principle under the modifications it has subsequently undergone in England, seems to have been adopted; for after an absolute bill of sale, if the property remains in the possession of the vendor, it is held to be fraudulent; and yet, when such possession is not inconsistent with the sale, the fraud becomes a matter of fact for a jury.b Afterwards in Walsh v. Medley, the milder doctrine was declared, that a transfer of chattels by deed, without any change of possession, was not per se fraud, but only a matter of inference for a jury.d

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the deed is void so far as the rights of creditors are affected. The law in such a case raises the conclusion of fraud, " incapable of being rebutted or explained." But if the case rested only on constructive and no actual fraud, the deed would be permitted to stand as a security for any consideration advanced at the time.

a

Ragan v. Kennedy, 1 Tenn. Rep. 91. Since that decision, it has been declared, in Callen v. Thompson, 3 Yerger, 475, and in Maney v. Killough, 7 Yerger, 440, and again in Mitchell v. Beal, Ib. 142, that possession remaining with the vendor after an absolute sale, or with the grantor or mortgagor in deeds of trust and mortgages, after the time of payment, is prima facie evidence of fraud, but the presumption may be repelled by proof. It was further held that the retaining of possession by mortgagor of personal property before the day of payment is not prima facie evidence of fraud, because it is understood to be a tacit or presumed agreement, that the mortgagor should retain possession. See also, infra, p. 526,

note a.

Baylor v. Smithers, 1 Littell's Rep. 112. Goldsbury v. May, 1 Litt. Rep. 256. Hundley v. Webb, 3 J. J. Marshall, 643.

e 1 Dana's Ken. Rep. 269.

d Again in Brummel v. Stockton, 3 Dana's Ken. Rep. 134, and Laughlin v. Ferguson, 6 Ibid. 117, the rule is laid down strictly, that on an absolute sale of moveable property, possession must go with the title, or the sale will be per se void as to creditors and subsequent purchasers, notwithstanding any agreement, however fair, that the seller may retain possession. And such seems to be the law in Missouri. Sibly v. Hood, 3 Missouri Rep. 290. Foster v. Wallace, 2 Ib. 231, and as laid down in Georgia, in Howland v. Dews, R. M. Charlton's Rep. 386. The rule in Kentucky, applies only to sales by private voluntary contract, and not to sales on execution, where the simple retention of possession by the debtor is not necessarily fraudulent; nor to sales upon a mortgage condition, provided the condition be inserted and the deed recorded. 6 Dana, 120. Vernon v.

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