fraud per se but only prima facie evidence of fraud, and which *may be explained by proof. A debtor *530

were of a nautical character, and did not apply to mortgages of personal property in their ordinary sense, as applicable to commerce on land, or on the lakes. Though the purchaser, at the sheriff's sale, knew of the mortgage, it was no objection to his title. Though the debt was fair, the mortgage bona fide, and the mortgagor kept possession with the mortgagee's consent, and to facilitate his business it did not help the case.

It was a case tending to fraud and deceit; and the mortgagee, in order to preserve his preference, was bound to take possession of the vessel as soon as possible after her arrival in port. The rule requiring a change of possession would he impaired and frustrated by multiplying exceptions and evasive excuses. No excuse is valid not founded on real necessity. There is no question for a jury when no satisfactory explanation is offered in proof why delivery was not made. The evidence as to the bona fides of the case must be pertinent, or the court is bound to reject it, as it is bound to reject all irrelevant testimony. Evidence of general moral character of the parties would not be relevant. A good consideration, or particular convenience, is no excuse. Charity, domestic affection, business, or religious purposes, are not pertinent or legal proof to overturn the presumption of fraud, when possession is retained. This decision, I should think, was well calculated, in its diffusible influences, to protect the rights of creditors from a thousand machinations and schemes to cover property from lawful executions. The doctrine of this case is in harmony with the prin. ciples of the decision in the case of Sturtevant v. Ballard, in 1812. But alas ! how fluctuating and precarious have been the decisions on this vexed question! The supreme court of New York, in Butler v. Van Wyck, 1 Hill's Rep. 438, decided, that if a mortgage of chattels was given for a true debt, the question of fraud, as to creditors, arising from continued possession in the mortgagor, must be submitted to a jury, whether such possession be satisfactorily explained or not. The rule was deemed to be the same where a like question is raised upon a bill of sale, absolute on its face. The court, in the opinion delivered by Mr. Justice Cowen, abandoned all the former adjudged doctrines on the subject, on the authority of the case of Smith v. Acker, decided in the court of errors. Judge Bronson dissented from the judgment of the court, and sustained the former doctrines of the court, and was for confining the decision in Smith v. Acker, to the parties in that case, and held that it was not to be followed as a precedent in the destruction of the statute and common law of the land, as declared and settled for centuries past. And as the senator, who gave the opinion of the court in Smith v. Acker, admitted that his vote “would directly conflict with the whole course of decisions of the supreme court upon the principal question,” Judge Bronson did not consider it as entitled to any weight as a precedent. In Prentiss v. Slack, 1 Hill's Rep. 421, the

may mortgage, or make an absolute sale of goods bona fide, and for a valuable consideration, but under an agreement to retain possession for a given time, and it would only be presumptive evidence of fraud, susceptible of explanation, and good, except as against an intervening attachment or sale before any actual delivery takes place. The supreme court of New Hampshire has also established the same rules of law on this subject as those recently declared in Massachusetts and New York, and

court went even further, and held that the jury might “allow almost any excuse for the vendor continuing in possession," and the court had no power to set aside the verdict, because of the insufficiency of the excuse. And lastly, in Colo v. White, 26 Wendell, 511, the judgment of the supreme court in White v. Cole, was reversed in the court of errors, and the doctrine of the case of Smith v. Acker reinstated. Mr. Verplanck, as a member of the court of errors, gave a learned and powerful opinion in support of the directions in the N. Y. Revised Statutes on this subject. So again, in Hanford v. Archer, 4 Hill's Rep. 271, the same question was elaborately and animatedly discussed in the New York court of errors, and the decision in Smith & Hoe v. Acker re-established ; and it may now be considered as finally settled in the jurisprudence of New York, and as the true doctrine of the Revised Statutes, that leaving the possession of chattels, on sale, or mortgage, or assignment, in the hands of the vendor, or mortgagor, or assignor, is only presumptive evidence of fraud, and it rests with the defendant to rebut that presumption as a matter of fact, by showing proof of good faith, and an honest debt, and an absence of an intent to defraud. The doctrine of the supreme court was, that there must appear to have been good and sufficient reasons, or some satisfactory excuse, for non-delivery at the time, and that the presumption of fraud cannot be rebutted merely by proving good faith and absence of a fraudulent intent. The old doctrine was, that, except in special cases, was fraudulent and an inference of law for the court. The doctrine now finally settled in the senate is, that the whole is a question of fact for a jury. The chancellor, (Walworth,) and the supreme court have struggled nobly to maintain what I believe to be the only safe and salutary principle requisite to protect creditors and bar fraud. The senate have established upon the letter of the Revised Statutes, the more lax and latitudinary doctrine, which places the most common and most complex dispositions of property, as between debtor and creditor, at the variable disposition of a jury. It has been since decided in Vance v. Phillips, 6 Hill, 433, that the question of fraud, however clear, must be submitted to the jury, yet if the jury find against the evidence, the court will set aside the verdict and grant a new trial, as in other cases.

has vindicated its opinion in an able manner. It insists that the principal cases in England and this country, on the other side, are born down by the current of opposite authority. The position that devolves the question of fraud upon the court, requires the opinion to be formed on a single circumstance, and admits no explanation. The other position which refers the question of fraud to a jury, looks to the whole transaction, and admits of every honest apology and explanation. If the vendor or mortgagor retains possession, no person suffers, unless a new credit be given, or an old one be extended, under a mistaken belief that the property remained unsold. The few cases of that kind which may happen, ought not to introduce so stern a rule, as to make such conveyances void against every description of creditors. In Coburn v. Pickering, b and which is held to be a leading case in New Hampshire, the subject was again thoroughly discussed ; and it was held that if the vendor of chattels retained possession after an absolute sale, it was always prima facie, and if unexplained by the vendee, conclusive evidence of a secret trust, which was fraudulent in respect to creditors. Whether there was such a trust, was deemed a question of fact; but if admitted or proved, the fraud was an inference of law. This was recurring back, in a great degree, to the simplicity and energy of the old rule, requiring delivery of possession in cases of sales of goods and mortgages of goods, as the natural order of dealing in such cases, and the only *effectual security against se 531 cret and fraudulent trusts. In the state of Maine,

• Haven v. Low, 2 N. H. Rep. 13.

3 N. H. Rep. 415. But in Ash v. Savage, 5 N. H. Rep. 545, it was adjudged, that possession was not essential to the validity of a mortgage of goods, and that retaining possession by the mortgagor was not, of itself, evidence of fraud. In Clark v. Moore, 10 N. H. Rep. 239, the court adhered to the rule established in Coburn v. Pickering.

c In 1832, the legislatures of Massachusetts and New.Hampshire passed acts, declaring that no mortgage of personal property thereafter made,

on the other hand, the Massachusetts doctrine is adopted and followed.a

should be valid except as to the parties, unless possession be delivered to, and retained by the mortgagee, or unless the mortgage be recorded in the clerk's office of the town where the mortgagor resides. See, also, Massachusetts Revised Statutes, part 2. tit. 6. ch. 74. sec. 5, and Smith v. Moore, 11 N. H. Rep. 55. Id. 285. It is held, that the recording of the mortgage is equivalent to an actual delivery of the property. Forbes v. Parker, 16, Pick. 462. Bullock v. Williams, Ib. 33. See also supra, p. 491. S. P. The continuance of the mortgagor's possession, even after the mortgage has become absolute, is not per se a fraud and only evidence of it. Shurtleff v. Willard, 19 Pick. Rep. 202. In New-York, also, in 1833, (Laws N. Y. sess. 56. ch. 279,) provision was made by law, for filing in the town clerk's office, as matter of public record, mortgages of chattels, and every such mortgage, unless the same or a true copy thereof be filed, or be accompanied by immediate delivery, and followed by an actual and continued change of possession, was declared to be void as against subsequent purchasers and mortgagees in good faith. In Lee v. Huntoon, 1 Hoffman's Ch. Rep. 448, the Assistant Vice Chancellor was of opinion that under the N. Y. act of 1833, ch. 279, if a mortgage of personal property be duly recorded, a change of possession need not be made. But if the mortgage be not filed, there must be an actual change of possession. Camp v. Camp, 2 Hill's Rep. 628. There was a statute of the general assembly of the colony of New York, of April 3d, 1775, requiring the like registry of bills of sales of chattels, not exceeding in value 1001., and given by way of mortgage ; and it is a little singular that such an ordinary and pacific provision should have been one of the last acts ever passed by the colonial legislature of New York. It was passed in the midst of the tumult of arms, for the general assembly adjourned on that same third day of April, never to meet again, as the revolution had then commenced. In Kentucky, by statute, December 13th, 1820, Feb. 220, 1837, and Feb. 1st, 1839, no mortgage or deed of trust of real or personal estate, is good against a purchaser, for valuable consideration, or against a creditor, unJess it be duly deposited for recording in the county clerk's office. In Georgia, Tennessee, Indiana, and Virginia, mortgages of personal property are to be proved and recorded like mortgages of land in order to make them

a Reed v. Jewett, 5 Greenleaf's Rep. 96. Holbrook v. Baker, 5 Ibid. 309. Brinley v. Spring, 7 Ibid. 241. Uliner v. Hills, 8 Ibid. 326. In Cutter v. Copeland, 18 Maine Rep. 127, the courts go still further and hold that the mortgagor may, by an arrangement with the mortgagee, become the agent of the mortgagée and retain the possession, without affording even a prima facie evidence of fraud.

It is greatly to be regretted, that the rules of law in so material a point, and one of such constant application, are so various and so fluctuating in this country. Since the remedy against the property of the debtor is now almost entirely deprived of the auxiliary coercion, intended by the arrest and imprisonment of his person, the

secure against bona fide creditors and purchasers. Statute of Georgia, December 26, 1827. Statutes of Virginia, December, 1792, and February, 1819, and of Indiana, Revised Statues, 1838, p. 70. Statutes of Tennessee, 1831. The statute of Tennessee applies to all bills of sale as well as mortgages and deeds of trust of real and personal property; all deeds of gist; all powers of attorney, concerning the conveyance of real or personal property; all marriage contracts, and all agreements for the conveyance of real or personal property. In Mississippi, by statute in 1822, deeds respecting the title to personal property, are to be recorded in the county where the property is, and if it be removed to a different county, to be recorded within twelve months, and if not recorded, they are void as to purchasers for a valuable consideration without notice, and as to creditors. 1 Smedes f. Marshall, 112. So in Alabama deeds of trust including mortgages of personal property, are to be recorded within thirty days, otherwise they are void as against creditors and subsequent purchasers without notice. But the statute does not apply to choses in action. Aiken's Dig. 208, p. 5. 4 Alabaina R. N. S. 263. 469. In Connecticut, there may be a mortgage of manufacturing machinery, without the real estate to which it is attached, and the mortgage is of course effectual, though the mortgagor retain possession of the machinery. Such machinery may also be attached, without being removed and sold on execution, Statutes of Connecticut, 1838, p. 72, 73. The Vermont statute is more stringent and wholesome, for it declares that no mortgage of any machinery, used in a factory shop or mill is good except between the parties, unless possession be delivered to and retained by the mortgagee. Revised Stalutes of Vermont, 1839, p. 317.

In the case of Watson v. Williams, 4 Blackf. Ind. Rep. 26, the court, after a clear and succint review of the conflicting decisions in England and America, came to the couclusion, now so generally prevalent, that the mortgagor's possession of goods was not conclusive evidence of fraud as to creditors, though the mortgage was silent as to the point of possession. His possession may be explained by parol proof, and shown to be fair and consistent with the contract. The subsequent decision in that court in Case v. Winshop, Ib. 425, rather controls the other, for it declared that the mortgagee of goods was entitled to immediate possession, when there was nothing in the instrument to gainsay it, and that the silence of the mortgage on that point, could not be supplied by parol proof.

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