#### Bond *vs.*Seymour.

In tho case, either of a simple hill of sale, or of a chattel mortgage, for tho security of a debt where fraud is alleged, to intercept the force and effect of such instruments, the evidence of the fraud alleged must be submitted to and passed upon by the Jury.

The Court cannot *instruct*the Jury that the facts proved make it obligatory upon them to find the transaction fraudulent, but it should bo left to tho Jury to form an opinion upon the evidence before them.

Property exempt from levy and sale on execution, cannot be considered as fraudulently conveyed so as to give any rights to creditors, though tho disposition of such property, but for its exemption from levy and sale, might bo so considered.

Error to the late District Court for the County of Racine. This was an action of Replevin, brought by the plaintiff in error against the defendant in error for *the detention*of a quantity of household property, a part of which was exempt from levy and sale on execution. The defendant in error pleaded that he did not detain the goods and chattels in question.

The case was tried at the April term of the late Territorial District Court for the county of Racine, before Miller, X, and under his charge, the jury gave a verdict for the defendant in error.

On the trial it was proved or admitted, that one Ehle had obtained a judgment against one Sanford on which was due the sum of sixty-six dollars; that an execution, issued upon said judgment, was levied upon the property in ■question by the defendant in error, who was a constable, •as the property, goods and chattels of'Sanford; that the property so levied upon was in the possession of the de*41fendant in error subsequently to the time of the levy, and was demanded by the plaintiff in error of the defendant in error, and that he refused to deliver the possession thereof, previously to the commencement of the action.

The plaintiff also produced on the trial the paper or mortgage mentioned in the opinion of the Court, and proved that the same was executed by the said Sanford and placed on file in the proper office before the levy made by the defendant in error, and was so on file at the time of the levy.

It was also proved or admitted, that the bill of sale-, also described in the opinion of the Court, was executed by Sanford, and the property therein mentioned turned'out to the plaintiff in error, was not taken into permanent possession, but was afterwards retained ifi possession of said Sanford.

It also appeared that some part of the property embraced in the respective papers was exempt from levy and sale on execution.

The charge of the Judge to the Jury sufficiently appears from the opinion of the Court, as does also the exception taken thereto by the defendant’s counsel.

*W. Bond,*for the plaintiff in error.

*E-. W. Evans,*for the defendant in error.

*By the Court.*

Jackson, J.

This was an action of Replevin, commenced at the October term of the District Court for Racine County, by Thomas D. Bond, the plaintiff in error, against Epaphro Seymour, defendant in error, a constable of said county, fob wrongfully detaining the property mentioned in the writ of replevin, by virtue of an execution issued from a Justice of the Peace in fa*42vor of Nicholas,. Ehle against William. G. Sanford. Om the trial of the cause, at the April term, 1848, of the District Court,, it was proven that the property replevied, was in, the possession of the defendant in. error after being talien on execution; and; that possession of the same-was. demanded, by the plaintiff and refused by the defendant before the writ of replevin, issued. It is admitted that, the plaintiff offered in evidence on the trial a paper writing, containing, a list of personal property,, to which was appended the following defeasance:

“ The above is given for the security of two notes Thomas D;, Bond holds, against me, dated, April 26th,. 1847. He to take possession at any time he may think' his security requires it..

WM. G. SANFORD.”

*Witness,*J. D. Kinsman.

Which writing it. is also admitted was executed by Sanford,. and placed, on file in the Town Clerk’s Office of Southport, before the levy made by defendant, and continued on file at the time of the levy.

It is further admitted that a bill of sale was executed, by Sanford to the plaintiff, purporting to convey the same property .described, in,, the other instrument, and that the property mentioned in the writ of replevin, was turned out to the plaintiff under, said bill of sale, in the presence of witnesses,, to secure payment of about sixty dollars.

It.is also admitted that the property replevied remained, in the house of Sanfprd, after it was so turned out to the plaintiff; and that it consisted of the household furniture of Sanford, who. was- in. embarrassed circumstances,. Its *43Is also admitted that some four days after the sale to the plaintiff, and previous to the levy, the plaintiff entered the house of Sanford and took possession of the property described in the writ and delivered the same into the possession of Mrs. Sanford, the mother of said Sanford, then an occupant of his house, and requested Mrs. Sanford to take charge of the same for this plaintiff; Mrs. Sanford, living, at the time, with her son, in whose house the property remained. It is further admitted that the levy under said execution was made some two or three days after the conversation between the plaintiff and Mrs. Sanford, and that at the time the said property was delivered to Mrs. Sanford, in the manner mentioned, William G.' Sanford was absent from the town of Southport. It is also further admitted that part of the property mentioned iii said bill of sale, consisted of the portraits of Sanford and wife, and that said portraits were levied upon under Ehle’s execution, and that Ehle became the purchaser.

Upon this evidence the Court charged the jury as follows:

1st, That as there was no covenant of consideration mentioned in either said mortgage, the said mortgage was void, and no property passed to plaintiff.

2d, That without delivery of the property, or change of possession, by said bill of sale, no property passed to plaintiff.

3d, That the delivery of the property to plaintiff by Sanford, on the 8th day of May, under said bill of sale was inoperative and void, the property remaining in the house then occupied by said Sanford.

4th, That all the proceedings.in the house of said Sanford in reference to the property were fraudulent and *44void, unless there was an *actual removal*of the property from the premises, or an actual change of possession.

5th, That under the circumstances Sanford alone could take advantage of the levy upon exempted property and that the vendee of Sanford under said bill of sale and mortgage, could not recover possession of said exempted, property from the judgment creditors of Sanford.

To these several instructions of the Court the counsel for the plaintiff excepted, and also asked the Court *to*give the jury the following instructions, which were refused:

>. 1st, That if the said chattel mortgage wras properly executed and placed on file in the Town-Clerk’s office, the plaintiff held by paramount title, and could not be molested by the judgment creditors of Sanford.

2d, That if the property was delivered to the plaintiff under said bill of sale, and said property was accepted by the plaintiff and by him delivered to one Mrs. Sanford, as plaintiff’s agent, possession by Mrs. Sanford was the possession of the plaintiff, and under the circumstances the plaintiff was excused from absolutely removing the property.

3d, That if any portion of the property was exempt by law from execution, that the creditors of Sanford had no right to levy upon the same, and if the remainder did not exceed $50 in value, that all was exempt from execution, and consequently the levy of defendant was illegal.

The jury, under the instructions given by the Court, returned a verdict for the defendant for sixty-six dollars and sixty-five cents, the value of the property, and three dollars and eighty-nine cents damages, with costs of suit, and judgment was rendered accordingly; to reverse which, a writ of error is brought to this Court.

*45Although several important legal questions arise in this cause, yet the disposition to be made of it must mainly depend upon the construction to be given to our Statute <of frauds. In most of the States of the Union a similar Statute exists, under which there have been conflicting adjudications. Not unfrequently a capricious rule of con-struetion has prevailed, which has deprived parties litigant of it® intended remedial and protective provisions. The later decisions, however, under the Statute, have been more in conformity both with its letter and its spirit. Whether this Statute is founded upon a wise or an unwise policy, it is not the province of Courts either to en-quire or to decide; but, like all other Statutes, it should receive a fair and reasonable construction.

We cannot but regard it as an unwarrantable assumption in Courts to attempt, by judicial construction, to impair’ the force or modify the provisions of an act of the ^Legislature.

In reference to the instrument of writing submitted to the jury upon the trial, two questions arise: Is it a *bill of sale, or*is it a *chattel mortgage ?*If it be a bill of sale, ¡then under our Statute, unless such sale be accompanied by an immediate delivery, and be' followed by an actual and continued change -of possession of the things sold, it shall be *presumed*to be fraudulent and void, as against the creditors of the vendor, or subsequent purchasers in good faith, and shall be *conclusive*evidence of fraud, unless it shall be made to appear, on the part of persons claiming .under such sale, that the same was made in good faith, and without any intent to defraud such creditors or purchasers. *Revised Stat. Wis.,*163, *Sec.*5.

Under this provision of the Statute, it is obvious that *46while the retaining the possession by the vendor of the property sold raises *a, presumption*of fraud, yet that is a presumption which is susceptible of being rebutted, on the pari of the persons claiming under such sale, by evidence that it was made in good faith, and without any fraudulent intent; and that it is the duty of the Court to submit the *question of fraud to the*jury,. who are to determine under all the circumstances of the case, as they shall be disclosed by evidence, whether or not such presumption has been sufficiently rebutted to give a *bona fide*character to the transaction. 23 *Wendell,*653; 1 *Hill,*438; 26 *Wendell,*511; 1 *Hill,*467.

If the instrument referred to be a chattel mortgage, then, “ unless possession of the mortgaged property be delivered to and retained by the mortgagee, or unless the mortgage be recorded in the office of the Register of Deeds where the mortgagor' resides,” or “ in the office of the Town Clerk where the mortgagor executing the same resides; or, in case he is a non-resident of the Territory, in the town where the property mortgaged may be at the time of executing the same,” it will be absolutely void as against creditors. *Rev. Stat. of Wis.,*164, *Sec.*9; *and Session Laws of*1843, *page*42, *Sec.*25.

If, however, the possession of such mortgaged property be delivered to, or retained by the mortgagee, or if it be recorded or filed in the manner prescribed by our Statutes, in case the mortgagor retains possession, then, in either case, such mortgage is *prima facie*valid; and it devolves upon the party who seeks to impeach it, on the-ground of fraud, to show such fraud affirmatively.

And here, the mortgage having been placed on file, the-question of frqud, as in the case o.f a bill of sale, is one for *47‘ih'e jury: *Rev. Stat.,*164. In either point of view, therefore, whether we regard the instrument offered in evidence upon the trial as a bill of sale, or as a chattel mortgage, the Court clearly erred in not submitting the question of fraud to'the jury.

We are inclined to the 'Opinion, however, that the in-•strumént referred to should he treated as -a chattel mortgage.

Again, a part of the property was exempt by law from ■execution; -and as it was not the subject of levy, it could not be conveyed in fraud of creditors. The charge of the Judge, therefore, on this branch of the case, was erroneous, and may have misled the jury. We deem it unnecessary to examine the other grounds of error assigned, -as those we have already considered are sufficient to require a reversal of the judgment.

The judgment of the Court below is therefore ¡¡reversed with costs.

*Stow, G. J,*

concurred in the reversal of fhe judgment, •on the ground that a part of the property ¡being exempt from execution, was not the- subject -of a fraudulent sale -as against judgment creditors; tot dissented to the views and principles of 'the opinion Af the Court, especially ás respects thatpart-of the opinion which relates to the principle governing and controlling the effect of simple bills of •sale — and holding that a bill of sale of chattels without a change of possession, in order to vest an interest-therein in the vendee, was determined by the Statute to be fraudulent as against creditors, unless evidence was given by the vendee of the *bona fides*of the transaction, and that he had been unable to discover any evidence given in the «ease made -up, which tended to that result.