§ 664. In the Supreme Court of the United States, the doctrine of Edwards v. Harben, that an absolute bill of sale or conveyance, without surrender of possession, is, of itself, conclusive evidence of fraud, has been affirmed to its full extent. In the case of Hamilton v. Russel,2 Mr. Chief Justice Marshall, after quoting fully from the case of Edwards v. Harben, proceeds to say: "This court is of the same opinion. We think the intent of the statute is best promoted by that construction; and that fraudulent conveyances, which are made to secure to a debtor a beneficial interest, while his property is protected from creditors, will be most effectually prevented by declaring that an absolute bill of sale is itself a fraud, unless possession' accompanies and follows the deed.'" This construction, too, comports with the words of the act. Such a deed must be considered as made with an intent " to delay, hinder, or defraud creditors." The same doctrine is affirmed in the Circuit Court by Mr. Justice Story.3
§ 665. So, also, in the United States courts, it is held, that although possession be not given, yet if the bill of sale or conveyance be not absolute, but conditional that the property shall remain in the possession of the vendor until performance of the condition, then the sale would not be fraudulent. So, also, if the bill of sale be, on the face of it, merely by the way of mortgage or security, and pursuant to an agreement between the parties that the mortgagor shall retain possession, it would be valid.1
1 See also, to this point, Eastwood v. Brown, By. & Mood. 312; Baldwin v. Cawthorne, 19 Ves. 166; Jezeph v. Ingram, 1 Moore, 189; Benton v. Thornhill, 2 Marsh. 427; s. c. 7 Taunt. 149; Beed v. Wilmot, 5 Moo. & P. 553; s. c. 7 Bing. 577; Woodham v. Baldock, 3 Moore, 11; s. c. Gow, 35; Leonard v. Baker, 1 M. & S. 251; Watkins v. Birch, 4 Taunt. 823; 2 Kent, Comm. 520; Hoffman v. Pitt, 5 Esp. 22.
2 Hamilton v. Russel, 1 Cranch, 310. See also Conard v. Atlantic his. Co., 1 Peters, 449. See Bissell v. Hopkins, 3 Cow. 189, and the cases there collected; U. S. v. Hooe, 3 Cranch, 73.
3 Meeker v. Wilson, 1 Gall. 419.
§ 666. But the doctrine, which is promulgated in the State courts, differs in the different States. In Massachusetts,2 Maine,3 New Hampshire,4 New Jersey,5 Tennessee,6 Kentucky,7 North Carolina,8 Texas,9 Arkansas,10 and Ohio,11 we find
1 Hamilton v. Russel, 1 Cranch, 310; D'Wolf v. Harris, 4 Mason, 515; Conard v. Atlantic Ins. Co., 1 Peters, 449; Meeker v. Wilson, 1 Gall. 419; U. S. v. Hooe, 3 Cranch, 79; U. S. v. Conyngham, 4 Dall. 358; Phettiplace v. Sayles, 4 Mason, 321.
* Brooks v. Powers, 15 Mass. 244; Bartlett v. Williams, 1 Pick. 288; Homes v. Crane, 2 Pick. 607; Wheeler v. Train, 3 Pick. 255; Ward v.-Sumner, 5 Pick. 59; Shumway v. Rutter, 7 Pick. 56; s. c. 8 Pick. 443; Adams v. Wheeler, 10 Pick. 199; Marden v. Babcock, 2 Met. 99; Briggs v. Parkman, 2 Met. 258. In the last case, Mr. Justice Wilde said: "It has always been held by this court, that where a vendor continues in possession of the goods sold, after the sale, with the consent of the vendee, such a possession is only a badge or presumptive evidence of fraud, which it is proper to submit to a jury, and which may be explained, and the inference of fraud repelled by other evidence."
3 Reed v. Jewett, 5 Greenl. 96; Holbrook v. Baker, 5 Greenl. 309; Brinley v. Spring, 7 Greenl. 241; Ulmer v. Hills, 8 Greenl. 326; Cutter v. Copeland, 18 Me. 127. In this last case the courts go so far as to affirm that a mortgagor may, by an arrangement with the mortgagee, become the agent of the mortgagee, and retain the possession, without affording even prima facie evidence of fraud. Bradeen v. Brooks, 22 Me. 463.
4 Haven v. Low, 2 N. H. 13; Coburn v. Pickering, 3 N. H. 415; Lewis v. Whittemore, 5 N. H. 364; Ash v. Savage, 5 N. H. 545; Kendall v. Fitts, 2 Fost. 1; Coburn v. Pickering, 3 N. H. 415.
5 Sterling v. Van Cleve, 7 Halst. 285; Bank of New Brunswick v. Has-sert, Saxton, 1; Mount v. Hendricks, 2 South. 738; Cumberland Bank v. Hann, 3 Harrison, 222.
6 Callen v. Thompson, 3 Yerg. 475; Maney v. Killough, 7 Yerg. 440; Mitchell v. Beal, 8 Yerg. 141.
7 Baylor v. Sraithers, 1 Littell, 112; Goldsbury v. May, 1 Littell, 256; Hundley v. Webb, 3 J. J. Marsh. 643; Breckenridge v. Anderson, 3 J. J. Marsh. 710; Allen v. Johnson, 4 J. J. Marsh. 235; Woodrow v. Davis, 2 B. Monr. 298; Wash v. Medley, 1 Dana, 269.
8 Howell v. Elliott, 1 Dev. 76; Vick v. Kegs, 2 Hayw. 126; Falkner v. Perkins, 2 Hayw. 224; Smith v. Niel, 1 Hawks, 341; Trotter v. Howard, 1 Hawks, 320.
9 Bryant v. Kelton, 1 Texas, 415.
10 Field v. Simco, 2 Eng. 269.
11 Barrv. Hatch, 3 Ohio, 529; M'Lean v. Lafayette Bank, 3 McLean, 587.
the later doctrine of the English courts, that possession only affords a primd facie evidence of fraud, which may be sustained, or rebutted, by proof of the other circumstances of the case. In South Carolina, the doctrine has been subject to fluctuations, but this doctrine seems also to obtain there now.1 But in Virginia,2 Pennsylvania,3 Vermont,4 Illinois,5 Florida,6 and
1 In the case of Croft v. Arthur, 3 Desaus. 229, the strict rule as to the effect of possession was said to be better founded. In De Bardeleben v. Beekman, 1 Desaus. 346, the court held that if possession did not accompany an unrecorded bill of sale of chattels, it was void as to the creditors, although there was no doubt of the fairness of the transaction. Again, in Kennedy v. Ross, 2 Rep. Const. Ct. 125, the doctrine of Edwards v. Harben was affirmed. But in Terry v. Belcher, 1 Bailey, 568, and Howard Vi Williams, 1 Bailey, 575, and Smith v. Henry, 2 Bailey, 118, the relaxed doctrine that possession constitutes only primd facie evidence of fraud, was enunciated. But see again, Anderson v. Fuller, M'Mullan, Eq. 27.
2 Alexander v. Deneale, 2 Munf. 341; Robertson v. Ewell, 3 Munf. 1; Land v. Jeffries, 5 Rand. 211; Claytor v. Anthony, 6 Rand. 285; Sydnor v. Gee, 4 Leigh, 535.