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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 personat property in their ordinary sense, as applicable to commerce on land, or on the lakes. Though the purchaser, at the sheriffs sale, knew of the mortgage, it was no objection to his title. Though the debt was fair, the mortgage bona f»de, 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 pertment, 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 principles 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 qnestion 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, ihe 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 excuso for the vendor continuing in possession," and the court had M power to set aside the verdict, because of the insufficiency of the excuse. And lastly, in Cole 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, gavo 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 Hilfe 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 Reeised 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 defrand. 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 non delivery. 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 «uch cases, and the only *effectual security against se- *531 cret and fraudulent trusts.6 In the state of Maine,

* Haven v. Low, 2 JV. H. Rep. 13.

b 3 iV. 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.

* In 1832, the legislatures of Massachusetts and New-Hampshire passed acts, declaring that no mortgage of personal property thereafter made, creditor's naked claim against the property ought to receive the most effective support, and every rule calculated to prevent the debtor from secreting or masking property to be sustained with fortitude and vigour. There is the same reason for the inflexible stability of the rule of law, that a vendor of chattels should not, at the expense of his creditors, sell them and yet retain the use of them. as there is for that greatly admired rule of equity, that a trustee shall not be permitted to buy or speculate in the trust fund on his own account; or for that other salutary and fixed principle, that the voluntary settlement of property shall be void against existing creditors. Such rules are made to destroy the very temptation to fraud, in cases and modes that are calculated to invite it, and because such transactions may be grossly fraudulent, and the aggrieved party not able to show it from the character of private agreements, and the infirmity of human testimony. However innocent such transactions may be in the given case, they are dangerous as precedents, and poisonous in their consequences; and the wise policy of the law connects disability with the temptation, and thus endeavors to prevent impositions, which might be inaccessible to the eye of the court. If a debtor can sell his personal property, and yet, by agreement with the vendee, continue to enjoy it for six years, as in one state. or for sixteen months, as in another, in defiance of his

creditors, who can set bounds to the term of *532 *enjoyment, or know when and where to bestow

credit, or how he is to make out a case of actual fraud? Fraud, in fact, is reluctantly drawn by a jury, and their sympathies must be overcome by strong and positive proof, before they will readily assent to the existence of a fraud ulent intent, which is so difficult to ascertain. and frequently so painful to infer.*

* In 1 Peters' U. S. Rep. 386, the supremo court of the United States waive the question, whether the want of possession of the thing sold constitutes per se a badge of fraud, or is only prima facie a presumption of

(2.) The validity of voluntary assignments of their property by insolvent traders and others, has been another and a fruitful topic of discussion. Under a code of bankrupt law, such assignments giving preferences, are held to be fraudulent, for they interfere with its regulations and policy.* But where there is no bankrupt system, these assignments are a substitute for a commission in bankruptcy, and become, like that, of the nature of an execution for the creditors. A conveyance in trust to pay debts is valid, and founded on a valuable consideration.1"

fraud; but in the case of Phettiplace v. Sayles, 4 Mason's Rep. 321, 322, the general doctrine, that non-delivery in the sale of chattels, and a continuation of possession in the seller, renders the sale void, is explicitly asserted, as having its foundations in a great public policy. On the other hand, it has been declared by the same court, in D'Wolf v. Harris, 4 Mason's Rep. 515, that a bill of sale of a ship and cargo in port is valid, though possession be not taken, provided it appear to have been given by way of mortgage. The notes added to Tmyne's case in Smith's Selection of Leading Cases, in the American edition of tho Law Library, N. S., vol. 27, contain a full view of the decisions, and especially of the American cases in the federal and state courts, on the great doctrines in Twyne's case, which is perhaps the most celebrated case in the English law, and has given rise to the most protracted and animated discussions. I have endeavoured, in the preceding pages, from p. 515, to give as full a note of the progress of these discussions as the plan of this work would allow.

• As the congress of the United States, sinco the 4th edition of these Commentaries, enacted a bankrupt law, a wide field of inquiry was opened, as to the question of conveyances fraudulent under that new system. The subject is well discussed on the basis of English authorities in the American Jurist for January, 1843. But the subject coases to be important, inasmuch as the bankrupt act was repealed March 3d, 1843.

b Stephenson v. Hayward, Pree. in Ch. 310. Dey v. Dunham, 2 Johnson's Ch. Rep. 188. Shaw, Ch J., in Russell v. Woodward, 10 Pick. Rep. 413. State of Maryland v. Bank of Maryland, 6 Gill 4> Johnson, 205. In making assignments of property, the owner cannot assign part only of one entire debt without the consent of the debtor, for that would subject him to distinct demands on one single contract. Gibson v. Cooke, 20 Pick. 15. Nor does the assignee of a voluntary assignment for the benefit of creditors,stand in a better situation than tho assignor. Neither he nor the creditors whom he represents are purchasers for a valuable consideration without notice, as against prior equitable liens. Haggarty v. Palmer, 6 Johnson's Ch. Rep. 437. Knowles v. Lord, 4 Wharton, 500. As between

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