The national Republican. [volume] (Washington City [D.C.]) 1866-1870, 1868-06-02
THE COURTS,
SupRrNE CouRT-9KsERALT KRx.-Ali the
Justices sat In bdne on Saturday.

%
Mr.. Justice wyiie delivered the opinion OF
involving The law OF ohettel mortgages In this
District. As the subject 10 Of great Importance
to the general public, we give the opinion In
Dixon vs.. Hessier. Suit involving the con.
struotion Of deed. The argument In this
hs
Of the day In conference on the cases already
selling 70. Kimnsii--Gensrai Tsrm, May, 1906
Involved In this controversy 10 very ineon.
siderable, but the principle 10 one Of great In
terest and Importance: On the 18th OF Feb.
rusry, 1857, one Elias Heidenheimar s:signed
cause) "all and Singular the goods and chat
tells, wares and merchandise" named and de-
scribed In the schedule, marked "a" and
in a, certain messusge, or tenement and
premises on Seventh street, between L and NJ
streets, and No. 3ot Z street, between Twelfth
and Thirteenth streets west, In the city Of
Warrington, and occupied by the said party
OF the hrst part a. sJeicelry Hore, In trust TO
one Eve Heidenheimer his promissory note
held by her, OF even date with the deed Of at
sao
suffer and permit the said party Of the first
part to retain possession OF, use and enjoy ne
said goods and chaiiels, rdres aud nerchs ndise,
until default made in the payment Of said
promissory note, or until one quarters rent
Of the premises containing said goods, &C., or
other premises to which they might be re-
remain due and owing for the space Of 20 days,
or should suffer any judgment to be recovered,
and execution thereon issued and levied on
said goods, chattels, Sc.j and In either ofthese
the property, make sale thereof At public auc.
tion, and, after paying the expenses Of the
trust from the proceeds, pay the debt due to
Eve Heidsnheimar, and then, u anything be
toft la t.,t ha ~ oF NFst 1T
The property thus assigned consfsted Of ;
dozen clocks, 2 dozen silver watches, gold
watches, 4 dozen gold chains, 5 dozen gold
s si%s Ss,en Ssossn ak nSs DOZEN po SIss
book, lot brushes, Q show cases, "a yards car.
peting, doIen chairs, sofa and bureau;
The defendant 10 4 county constable, and
levied on small part OF the property thus do
Scribed to satisfy an execution In his hands,
issued under = Judgment In favor Of ono OF
The trustee tseiiinsj thereupon rsplevied
the goods from the constable, which 10 the
proper form OF remedy under our law In such
cases.
question Of fraud on the deed Of trust to the
decision OF the Jury, who found In favor OF the
plaintiff, thus sutsining the deed,
The defendant excepted to this ruling Of the
court below ought to have told the jury that
the deed was fraudulent In law upon Its face.
And we think the Court below ought 80 to
The goods In question were articles Of mer-
chandise, described In the deed as "goods and
chattels, wares and merchandise.n They
were 10 the store or y, shop Of the Es.ntor 3Hie.
pressiy allowed cidenheimar "to retain pos.
session Of, use, and enjoy the same" Arti:
Giles Of this description could not be fused
The deed then allowed MsiSSeRei%sr to make
sale OF the property and use and enjoy Its
proceeds during the whole period OF Ave
In the meantime he should fall behind In
paying his rent, or some diligent creditor
should obtain judgment, and issue and levy
splSR se The 81
landlord, or other creditor. He might sell
the property and make use OF the proceeds
for his own purpose, as fully as though no
creditors from whom 1t may have been .puf-
chased on credit were to be hindercd and de-
layed, II not defrauded Of their claims by
means of this contrivance, which was to
complete enjoyment and disposal of the pro-
perty In the hands Of the debtor, and object
to discharge 1t from the liabilities OF property
Another objection, fatal to this deed, sp.
pears upon Its fall. The property enjoyed
was not capable Of Identification from any
description In the deed or schedule. We have
copied above tho schedule at length, which
shows on Its face that not one OF the articles
enumerated could be removed In an action OF
replevin or detainer by the trustee, II he were
pIs shs: sssa 90 %e hf S,spi
the Court below erred In submitting that fact
Ms question for discussion by the Jury.
lon on questions not Involved In the case be-
Whether It DO possible for debtor to make
IN securs debt notvi nsyahle sitber
principal or Interest, iii after 1--we
years and In tho meantime to- retain
The power to carry on businen as formally
10 not likely to be q practical question much
longer, in consequence OF the passage OF the
bankrupt law. An absolute sale Of personal
property, even for q full and valuable consid-
and purchasers, unless the possession accom-.
pany the sale to the purchaser, and remain
with him afterwards. But the owner Of per-
sonal property may incumber his title to Il
with mortgage, or deed Of trust, and yet
remain In possession II the deed be duly re-
corded, But he cannot do two things which
are Inconsistent one with the other, He can
In possession, and with The same powers to
manage, fuse, and enJoy,n the property as
though It were his own. II the deed Of trust
confers these rights upon him, they are right.
which belong only to an absolute owner, and
property SO held 10 responsible to his credi'
tors, as though he held II absolutely, and the
deed 10 void on its face. To constitute valid
debt, Il must look "ione TO tSat object. II Il
contain provisions Intended to enable the
maker Of 1t to secure the use and enjoyment
Of the property for himself and by means
thereof plainly tends to defraud, hinder, or
delay other creditors, the deed 10 void, and II
10 the duty OF the Court to decide the question
for itself, and not to leave Il to- the uncertain
srbitrament Of ajury. Fraud 10 fact" tsays
Oh. Kent) "is reluctantly drawn by jury, and
their sympathies must be overcome by strong
and positive proof before they will readily
assent to the existence OF fraudulent intent,
which 10 so difficult to ascertain, and, fre-
MI MT 40 "a In mi IN infar