§ 658. If the conveyance, or bill of sale, be conditional on its face, and possession be not, by its terms, to be surrendered until such condition is performed, the contract is binding against the creditors, if it be in other respects bond fide, and for a valuable consideration. So, also, if the transaction be bond fide and merely by way of mortgage, or collateral secu rity, it would be good.1 In many of the States in the United States, it is declared by statute, that a mortgage should not be considered as fraudulent, although possession is retained by the mortgagor, provided that record thereof be duly made; for the record is considered as constructive notice of the transaction to the creditors.2 The only effect of such statute would, however, seem to be in affirmation of the rule of the common law. But where the bill of sale, or conveyance, is absolute, and the vendor nevertheless retains possession, a presumption of fraud would in all cases arise. But whether the mere fact that the vendor is to retain possession, is to be considered as affording prima facie evidence of fraud, which may be.rebutted by proof, - or as affording conclusive evidence of fraud, - is a question open to much doubt, and in respect to which the cases are distressingly contradictory.
§ 659. The first case on this subject, and one of the leading cases, is Twyne's case, which was decided in the Star-Chamber in the forty-fourth year of the reign of Queen Elizabeth.3 The facts of that case were as follows. Pierce was indebted to Twyne in £400, and was also indebted to C. in £200. Pending an action by C. to recover his demand, Pierce, being possessed of goods to the value of £300, secretly, by deed, conveyed all his goods and chattels to Twyne, in satisfaction of Twyne's debt. Pierce, however, continued in possession, and sold some of the goods, notwithstanding the deed, and sheared some sheep, that were a part of the effects, and marked them with his own mark. C. having afterwards obtained judgment, endeavored to levy execution on the goods, but was resisted by Twyne. The question which the court were called upon to decide, was, whether the conveyance was fraudulent by the statute of 13 Elizabeth; and they held that it was, on the following grounds: "1st. That it had the signs and marks of fraud, because the gift is general, without exception of his apparel, or any thing of necessity; for it is commonly said, quod dolus versatur in generali-bus. 2d. The donor continued in possession, and used them as his own, and by reason thereof, he traded and trafficked with others, and defrauded and deceived them.1 3d. It was made in secret, et dona clandestine!, sunt semper suspiciosa. 4th. It was made pending the writ.2 5th. Here was a trust between the parties; for the donor possessed all and used them as his proper goods, and fraud is always apparelled and clad with a trust, and a trust is the covert of fraud. 6th. Tho deed contains, that the gift was made honestly, truly, and bond fide; et clausulce inconsuetce semper inducunt suspicionem" § 660. The next leading case on this subject was Edwards v. Harben.3 In this case, Mercer offered to Harben a bill of salo of sundry chattels as a security for a debt. This Harben refused to take, unless he should be permitted, at the expiration of fourteen days, if the debt should remain unpaid, to take possession of the goods, and sell them in satisfaction of the debt, returning the surplus money to Mercer. A bill of sale was accordingly executed, purporting on the face of it to be absolute, i and a corkscrew was delivered to Harben in the name of the whole. Mercer died within the fourteen days, and immediately upon their expiration Harben took possession of the goods and sold them. A suit was then brought by Edwards, a creditor of Mercer, charging Harben as executor in his own wrong; and the question was, whether this bill of sale was fraudulent and void, because it was not accompanied by a delivery of possession, although it was on its face absolute. It was determined to be fraudulent, and it was said by Buller, J., in the judgment, that all the judges of England had been consulted on a motion for a new trial in the case of Bamford v. Baron, and were unanimously of opinion, that "unless possession accompanies and follows the deed, it is fraudulent and void;" 1 and he went on to say, that this principle had been long settled, and never had been seriously questioned; and took a distinction between bills of sale which are to take place immediately, and those which are to take place at some future time, on performance of a condition. He then continues: "This has been argued by the defendant's counsel as being a case in which the want of possession is only evidence of fraud, and that it was not such a circumstance per se, as makes the transaction fraudulent in point of law; that is the point which we have considered, and we are all of opinion, that if there is nothing but the absolute conveyance, without the possession, that, in point of law, is fraudulent." In subsequent cases the same doctrine has been acted upon, and the case of Edwards v. Harben expressly affirmed.2
553; Stephenson v. Clark, 20 Vt. 624; Cadbury v. Nolen, 5 Barr, 320. See Parker v. Procter, 9 Mass. 390; Slater v. Dudley, 18 Pick. 373.
1 Martindale v. Booth, 3 B. & Ad. 498; Minshall v. Lloyd, 2 M. & W. 450; Steward v. Lombe, 1 Br. & B. 510, 512; D'Wolf v. Harris, 4 Mason, 515; Ward v. Sumner, 5 Pick. 59; Kidd v. Rawlinson, 2 Bos. & Pul. 59; Glover v. Austin, 6 Pick. 220; Conard v. Atlantic Ins. Co., 1 Peters, 449; Bissell v. Hopkins, 3 Cow. 166; Holbrook v. Baker, 5 Greenl. 309; Edwards v. Harben, 2 T. R. 595; Armstrong v. Baldock, Gow, 35.
2 Mass. Gen. Stat. ch. 151, § 1; Forbes v. Parker, 16 Pick. 462; Bullock v. Williams, 16 Pick. 33; Shurtleff v. Willard, 19 Pick. 202. See also Laws of New York, sess. 56, ch. 279; Lee v. Huntoon, 1 Hoffm. 448; Camp v. Camp, 2 Hill, 628; Stat, of Kentucky, Dec. 13, 1820, Feb. 22, 1837, Feb. 1, 1839; Stat, of Georgia, Dec. 26,1827; Stat, of Virginia, Dec. 1792, Feb. 1819; Indiana Rev. Stat. 1838, p. 470; Stat, of Tennessee, 1831; Stat, of Connecticut, 1838, p. 72, 73; Rev. Stat, of Vermont, 1839, p. 317. See 2 Kent, Comm. 530, n.