#### * Austin Brooks *versus*David Powers.

The possession of a chattel by the vendor, after a sale, is not conclusive evidence of fraud.

Replevin of a pair of oxen, and other cattle, attached by the defendant, a constable, on an original writ against one *Stephen Witt.*The defendant pleaded property in *Witt,*traversed the property of *Brooks,*and avowed for a return. The plaintiff replied property in himself, upon which issue was joined.

Upon the trial of this issue before *Putnam,*J., it appeared in evidence that *Witt,*during the years 1816 and 1817, lived on a farm owned by the plaintiff, who had leased the same to *Witt*for those years, making a distinct lease for each year, commencing on the 1st of April. A few days before the attachment by the defendant, *viz.,*on the 14th of April, 1817, *Witt*gave to the plaintiff a bill of sale of the cattle, and made a delivery of them on the farm, in payment of a part of the rent for the preceding year, and of the whole for the year then ensuing, except the sum of three dollars, for which *Witt*gave his note to the plaintiff. *Witt*and the plaintiff then agreed that *Witt*should have the oxen, to carry on the work of the farm that year, for which he was to support them free of expense to the plaintiff; and it was further agreed that the plaintiff might work the oxen when *Witt*had no occasion to work them on the farm himself. It was further agreed that *Witt*should pasture the other cattle for the plaintiff, for which he was to pay the customary price. The cattle were in the possession of *Witt,*after the sale, in pursuance of said agreement, until they were attached as aforesaid.

It was likewise proved that *Witt,*at the time of the sale to the plaintiff, was the owner, and in actual possession, of the cattle, of a part of which he had been the owner, and in the continued possession, for a long time before the sale, and that the plaintiff had never had the property or possession thereof before the sale.

*226The judge charged the jury that, if they were satisfied that the cattle were sold and delivered in the manner and * for the consideration stated, the circumstance of *Witt’s*retaining the possession of them, *for the purpose of pasturing them,,*and of the plaintiff’s *permitting him to use the oxen,*would not be conclusive evidence of fraud, so as to avoid the sale as to creditors, but was one of the circumstances which was proper to be submitted to the jury, as tending to prove the sale fraudulent as to them; and that if, upon considering the whole evidence, they should believe the sale to have been *bona fide,*and for a good con sideration, and not made with a view to defraud creditors, their verdict should be for the plaintiff. And a verdict being so returned, the defendant filed his exceptions to the said opinion of the judge.

*L. Bigelow,*for the defendant.

The possession of the cattle by *Witt,*after the bill of sale of them to the plaintiff, was a fraud in law, which rendered the sale void as to creditors, or subsequent *bona fide*purchasers.

By the statutes of 13 and 27 *Eliz.,*which were merely in affirmance of the common law,- and which are a part of our common law, all sales of chattels made for the purpose of defrauding, defeating, delaying, or deceiving creditors, are declared, as to them, to be absolutely void.

When the vendor of chattels, after an absolute sale of them, continues in the possession of them as the visible owner, creditors and purchasers, unless they have notice of the sale, will be unavoidably deceived; because possession is the only *indicium*of the property of a chattel. It leaves the vendor in a state of apparent credit, under circumstances which, if known, would show him not entitled to it. If, in such case, a subsequent purchaser should pay a valuable consideration for the property, without knowledge of the previous sale, he would be defrauded of his money, unless the first sale be void, or the vendor be able to indemnify him. Where the sale is absolute, and is accompanied with an agreement that the vendor shall remain in possession of the property sold, and ’the transaction takes place under such circumstances that creditors and subsequent purchasers * cannot be presumed to have knowledge of it, the possession by the vendor has such a manifest and inevitable tendency to deceive and defraud them, that the law will presume the sale to have been made for that purpose.

A different doctrine would have a most mischievous tendency, by facilitating the means of fraud and deception. A person in embarrassed circumstances, who wishes to defraud purchasers, or to *227secure his property from the reach of his creditors, may always find some friend who will aid him in his design by taking the command of the property, while the real owner will remain in possession, and have the whole benefit of it. It will be perfectly easy so to plan and conduct the transaction that, if the pretended purchaser should claim the property from an attaching creditor, or subsequent bona *fide*purchaser, it would be impossible to detect the fraud. Any persons may be selected for witnesses, and they may know nothing of the transaction except what they learn from the acts and declarations of the parties at the time; and if the vendor should be used as a witness, he will have but little scruple in consummating, by his testimony, a fraud which he had previously planned.

On the other hand, if the possession of the property by the vendor after the sale be considered as fraudulent as to third persons, there will be but little danger that a *bona fide*purchaser of goods will be injured. For it will be easy for him to take possession of the goods; and if he has paid a valuable consideration for them, he knows it is unsafe to suffer them to remain in the hands of an irresponsible vendor. The adjudged cases on this subject are very numerous, and they all speak a uniform language in support of the doctrine contended for. (1)

In the case of attachments, also, if the officer making the attachment suffer the goods to remain in the hands of the debtor, they will be liable to be attached by another officer, at the suit of othei creditors. (2)

* There are some cases, it is true, where the possession of the goods by the vendor, after the sale, is not in itself fraudulent in law, but is considered as *prima facie*evidence of fraud This has been held in- those cases where the sale has been public and notorious; or where it is conditional, and the vendee is not to have possession of the goods until he has performed the condition Where the possession of the goods by the vendor, after the sale, has been held not to be in itself a fraudulent act, this distinction has uniformly been made. (3)

*228But in the case at bar, the bill of sale was not conditional bu t absolute, and the vendee was not only entitled to the possession o:’ the cattle immediately upon the sale, but there was no sufficient reason in law for permitting the vendor to continue in possession of them, as visible owner. Nor was the sale a public one, or known to the officer, or attaching creditor. Under such circumstances, there is no adjudged case to be found in the books upon which the sale by *Wilt*to the plaintiff, in the case now before the Court, can be supported, as a valid one against creditors.

The possession of the cattle, therefore, by *Witt,*after the sale, being a fraud in law, the verdict of the jury that there was no fraud was an erroneous inference or conclusion of law, from the facts proved, which, it is respectfully insisted, the Court will correct by sending the cause to a new trial.

*Lincoln*for the plaintiff.

(1)

 3 *Co.*80, *Twyne's*case. — *2 D. & E.*506, *Edwards*vs. *Harben. — 2 Bulst.*218, *Stone*vs. *Grubbam.*— 1 *Atk.*168, *Ryall*vs. *Roll.*— 1 *Ves.*348. — 1 *Will.*260.— 1 *Esp. Rep.*205, *Paget Al.*vs. *Perchard*& *Al.*— 1 *Camp.*333, *Wordall*vs. *Smith & Al.*— 7 *Mod.*37, *Rice*vs. *Sargeant.*— 1 Crunch, 309, *Hamilton*vs. *Russell.*— 9 *Johns.*337, *Sturteuant*& *Al.*vs. *Ballard.*—8 *Mass. Rep.*575. — 4 *Mass. Rep.*661, *Portland Bank*vs. *Stacey &*Al.—8 *Mass. Rep.*287, *Putnam*vs. *Dutch.*—12 *Mass. Rep.*54, *Lamb & Al.*vs. *Durant.*—14 *Mass. Rep*352, *Gale*vs. *Ward.*

(2)

**9 *Mass. Rep.*258, *Knap*vs. *Sprague.*—12 *Mass. Rep.*131, *Baldwin*vs. *Jackson.*— *Ibid.*495, *Train*vs. *Wellington.*—14 *Mass. Rep.*190, *Bridge*vs. *Wyman Al.*

(3)

*Cowp.*432, *Cadogan*vs. *Thennet.*— 3 *D. & E.*620, *Hasclinton Al.*vs. Gill, in notis. — *Shep. Touch.*65, Lady *Lambert's*case. — 3 *Esp.*52, *Kidd*vs. *Rawlinson.*— 2 *B. & P.*59. — 5 *Johns.*230, *Barrow*vs *Paxton.*—9 Johns. 135*—M'Instry*vs. *Taner.*—4 *Dall.*208*Waters's Errs.*vs. *M 'Lellan & Al*

*By the Court.*

It has been contended, in this case, that the possession of the vendor of personal chattels, after the sale, is *conclusive*evidence, in favor of creditors, that the sale was fraudulent, or rather that it is itself a fraud. But we are all of opinion that, although it is generally evidence of the strongest kind, it is net conclusive. The vendee may, notwithstanding, upon proof that the sale was *boná fide*and for a valuable consideration, and that the possession of the vendor, after such sale, was in pursuance of some agreement not inconsistent with honesty in the * transaction, hold under his purchase against creditors; and so it has been often decided in this Court as well 38 in *England,**(a)*

*Judgment on the verdict..*

(a)

*Martindale*& *Al.*vs. *Booth*& *Al. B.*& *Ad.*498. — Lady *Arundel*vs. *Phipps & Al.*20 *Ves. p.*145. — *Latimer*vs. *Batson, 4 B.*& *Cr.*654. — *Jeseph*vs. Ingram, *1 Moore,*189. — *Benton vs. Thornhill, 2 Marsh, 427.—Martin*vs. *Podger, 2 Wm. B.*701.— *Eastwood*vs. *Brown, Ry.*& 312. — *Hoffman*vs. *Pitt,*5 *Esp. N. P. C.*25. - - *Prec. Chan.*287. — 1 *Bro. &*Bingh. 512. —2 *Phillips's Ev.*pp. 384—385, 7th ed , and cases there *cited.—Armstrong*vs. *Baldock,*1 *Gow.*33.— *Stover vs. Hunter,*3 *B.*& C. 368. — *Reed vs. Jewett,*5 *Greenl.*96. — *Bissell*vs. *Hopkins,*3 *Cowen,*166, and the cases cited in the note. — *Ingraham*vs. *Wheeler,*6 *Conn. 277.*— *Burrows vs Stoddard,*3 *Conn.*160. — *Tainter*vs. *Williams, 7 Conn.*271. — *Mount & Al.*vs. *Hendricks, 2 South.*738. — *Land*vs. *Jeffries,*5 *Rand.*211. — 2d vol. *Kent.*Com. 2d ed. pp. 512—531, and the cases there cited and commented upon. —*Howell*vs. *Elliot,*1 *Devr.*76. — *Bartlett*vs. *Williams,*1 *Pick.*288.— *Holmes*vs. *Crane,*2 *Pick.*607.— *Wheeler*vs. *Train,*3 *Pick*255. — *Ward*vs. *Sumner,*5 *Pick.*59. — *Shumway vs. Rutter,*7 *Pick.*56, 8 *Pick,.*443 — *Haven vs. Low, 2*N. *H. R.*13. — *Holbrook*vs. *Baker,*5 *Greenl.*309. — *Badlam vs. Tacker,*1 *Pick.*389 —Sed vide *Hamilton vs. Russell,*1 *Crunch,*309.— *Alexander*vs. *Deneal,*2 *Munf.*341. — *Robertson*vs. *Ewell,*3 *Munf.*1.— *Clayton*vs *Anthony,*6 *Rand.*285 — *Croft vs. Arthur,*3 *Eq. R. S. C. 220.*— *de Bardeleben*vs. *Beekman,*1 *Ibid.*346. — *Kennedy vs. Ross, 2 Const. Rep.*125. — *Hudnal*vs. *Wilder,*4 *M’Cord,*R. 294. — *Ragan*vs. *Kennedy,*1 *Ten. R.*91.— *Baylor*vs. *Smithen,*1 *Litt. R*112.— *Dawes*vs. *Cope,*4 *Bin.*258.— *Babb*vs. *Clemson, 10 Serg.*& 419. — *Shaw*vs. *Levy,*17 *Serg. & R.*17, 99. — *Hower*vs. *Geesman, Ibid.*251. — *Clow*vs Woods. *2295 *Serg.*& *R.*275. — *Cowden*vs. *Brady,*8 *Serg. & R.*510. *—Dean*vs. *Paddon,*13 *Serg. & R. 345.-—Burns*vs. *Bettington,*1 *Wash. Cir. C. R.*38.— *Chumar*vs. *Wood,*1 *Halst.*155.— *Pattern,*vs. *Smith,*5 Conn. 196. — *Boardman*vs. *Keeler,*1 Aik. 158. — Mott vs. *M’Niel,*1 Aik. 162-— *Weeks*vs. *Wood,*2 Aik. 164. — *Fletcher*vs. *Howard,*2 *Aik.*115 — *Beathe*vs. *Robbins,*2 *Vern. R.*181. — *Sturtevant*vs. Ballard, 9 *Johns.*337.— *Divver vs. McLaughlin, 2 Vern.*596.— *Phettiplace*vs. *Sales, 4 Mason, R.*321— *Lovick*vs. *Crowden,*8 B. & Cr. 132. — *Wardall*vs. *Smith,*1 *Camp.*332. — *Paget*vs. *Perchard,*1 Esp. Rep. 205.