3 Young v. M'Clure, 2 Watts & S. 147; Clow v. Woods, 5 S. & R. 285; Welsh v. Bekey, 1 Penn. 57; Cowden v. Brady, 8 S. & R. 510; 2 Kent, Comm. 522, 523, 524; Brady v. Haines, 18 Penn. St. 113.
4 Boardman v. Keeler, 1 Aik. 158; Mott v. McNiel, 1 Aik. 162; Weeks v. Wead, 2 Aik. 64; Fletcher v. Howard, 2 Aik. 115; Beattie v. Robin, 2 Vt. 181; Judd v. Langdon, 5 Vt. 231; Hutchins v. Gilchrist, 23 Vt. 82; Famsworth v. Shepard, 6 Vt. 521. In this case Mr. Justice Mattock said: "This still remains the settled law of the land; and although some learned gentlemen of the law have supposed that the court would eventually retrace their steps, as the courts in some neighboring States have done, that is, leave this as a badge of fraud to the jury, among others; yet we are not disposed to recede a jot, nor to advance a whit, but to remain stationary upon this, in other governments, vexed question, so as to give this branch of the law at least the quality of uniformity." See Wilson v. Hooper, 12 Vt. 653; Stiles v. Shumway, 16 Vt. 435.
5 Thornton v. Davenport, 1 Scam. 296. In this Illinois case the true doctrine is laid down with precision. All conveyances, it is held, of goods and chattels, where the possession is permitted to remain with the alienor oi vendor, are fraudulent per se, and void as to creditors and purchasers, unless the retaining of possession be consistent with the deed: where the transaction is bond fide, and from the nature and provisions of the deed, the possession is to remain with the vendor, that possession being consistent with the deed, does not avoid it; and therefore mortgages, marriage settlements.
6 Gibson v. Love, 4 Fla. 217.
Connecticut,1 the strict rule of the old English law and of the United States courts is adhered to. In New York, the doctrine has not been wholly settled, although it seemed to preponderate in favor of the rule declared in the United States courts, that possession constitutes a conclusive presumption of fraud.2 This question is, however, now set at rest in that State by a statute, declaring, that unless a sale or assignment be accompanied by an immediate delivery, and be followed by an actual and immediate change of possession, it shall be presumed to be fraudulent and void, as against the creditors, etc, and shall be conclusive evidence of fraud, unless it shall be made to appear, and limitations over of chattels, are valid without transfer of possession, if the transfer be bond fide, and the possession remain with the person according to the deed. But an absolute sale of personal property, and the possession remaining with the vendor, is void as to creditors and purchasers, even though authorized by the terms of the bill of sale. The opinion of one of the judges in that case went to the whole length of the salutary doctrine, that the mortgagee or vendee taking a bill of sale for security, must take possession, even though the arrangement in the deed or mortgage be different, because " the policy of the law will not permit the owner of personal property to create an interest in another, either by mortgage or absolute sale, and still continue to be the visible owner."
1 Patten v. Smith, 5 Conn. 196; Swift v. Thompson, 9 Conn. 63; Toby v. Reed, 9 Conn. 216; Mills v. Camp, 14 Conn. 219; Osborne v. Tuller, 14 Conn. 529; Norton v. Doolittle, 32 Conn. 410; Hall v. Gaylor, 37 Conn. 550 (1871); Lake v. Morris, 30 Conn. 201 (1861).
2 In Sturtevant v. Ballard, 9 Johns. 337, it was held by Mr. Justice Kent, that if the vendor be permitted to retain possession in the case of an absolute bill of sale of chattels, it was an act of fraud in law, as against creditors, and that, though the agreement appear on the face of the deed, it would be equally so, unless some good motive at the same time was shown. The rule applied equally to conditional as to absolute sales, unless the intent of the party in creating the condition was sound and legal. The result of the case was that a voluntary sale of chattels, with an agreement either in or out of the deed, that the vendor may keep possession, is, except in special cases, and for special reasons, to be shown and approved of by the court, fraudulent and void as against creditors. In Ludlow v. Hurd, 19 Johns. 221, however, the question, whether possession constituted a presumption of fraud, or proof thereof, was left as a debatable point. And in Bissell v. Hopkins, 3 Cow. 166, the doctrine of Sturtevant v. Ballard was entirely overthrown, and the doctrine asserted, that possession was merely evidence, and not proof of fraud. And see Thompson v. Blanchard, 4 Comst. 303. But in Divver v. McLaughlin, 2 Wend. 596, the doctrine of Sturtevant v. Ballard was again recognized. See also Collins v. Brush, 9 Wend. 198.
on the part of the persons claiming under such assignment, that the same was made in good faith, and without any attempt to defraud.1
§ 667. Again, it is considered a fraud against the rights of third persons, secretly to employ by-bidders, or puffers, whose sole office is to excite competition and inflate the price by fictitious bids in sales by auction, while, by a secret understanding with the auctioneer or seller, that they shall not be held by their bids, they avoid all risk. And in respect to such persons, the rule is, that if their false bidding operate directly as a fraud upon the vendee, the latter may avoid the purchase.2 If, there-
1 1ST. Y. Rev. Stat. vol. ii. p. 136, § 5, 6, 7. It is also enacted that the question of fraudulent intent, in all cases of fraudulent conveyances and contracts, shall be deemed a question of fact, and not of law. See Cunningham v. Freeborn, 11 Wend. 240; Doane v. Eddy, 16 Wend. 523; Randall v. Cook, 17 Wend. 53; Smith v. Acker, 23 Wend. 653; White v. Cole, 24 Wend. 116; Butler v. Van Wyck, 1 Hill, 438; Cole v. White, 26 Wend. 511; Hanford v. Artcher, 4 Hill, 271. This question, though discussed with much diversity of opinion in Hanford v. Artcher, was settled in the jurisprudence of New York by that case. Mr. Chancellor Kent (2 Kent, Comm. 529, note e), after reviewing all the cases, says: " 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 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 the most complex dispositions of property, as between debtor and creditor, at the variable disposal of a jury." In Hanford v. Artcher, the president of the senate (Bradish) gave a learned historical review of the English and American authorities, and ably vindicated the decision of the senate. See McVicker v. May, 3 Barr, 224; Jordan v. Frink, 3 Barr, 442.