Look vs. Comstock, 15 Wend. 244

By the Court, Bronson, J. On the facts detailed in the return of the justice, the jury were fully warranted in finding that this transaction was fraudulent and void, as against the creditors of Thomas Comstock; and I am unable to discover on what ground the common pleas proceeded in reversing the judgment.

There was no change of possession at the time the mortgage was executed ; and although the horse was sent to Silas on the same day, it seems only to have been a color-able change of possession, for Thomas went and took the horse back six days afterwards, and was about to ride him to Albany, when the constable came with a warrant to arrest him at the suit of Look. There must be an immediate delivery of the property, on the execution of a mortgage or bill of sale, and that must be followed by a continued change of the possession, or the transaction will be deemed fraudulent as against creditors.

It is true, that possession continuing in the vendor is only prima facie evidence of fraud, and may be explained ; but until some satisfactory reason is given, the transaction is Fraudulent, in judgment of law, and should be so declared by the courts, as well as by the jury. Hall v. Tuttle, 8 Wendell, 375. Gardner v. Adams, 12 Wendell, 297. In this case no sufficient reason was shown for allowing Thomas to resume the possession of the horse. Transfers of personal property will be void, as against creditors, unless they are made upon sufficient consideration, and in good faith.

The cases upon this subject are cited and fully considered in Hall v. Tuttle. It was not satisfactorily proved that there was any good consideration for this transfer. The two brothers had been partners, and Thomas says there was no settlement between them at the time of the sale, and he did not know how much Silas owed him. For aught that appears, Silas may have owed him more than the amount of the note to Wooster; and Silas had a judgment in his own favor for more than $ 140, which belonged to Thomas.

It is said that these are mere" questions of fact; that the common pleas probably reversed the judgment on the merits, and consequently that the matter cannot be reviewed on a writ of error. Whitney v. Sutton, 10 Wendell, 411. Columbia Turnpike v. Haywood, 10 id. 422. I agree fully in the rule laid down in those cases. One was an action on the warranty of a horse, and the other was a suit for a penalty for forcibly or fraudulently passing a toll gate. They presented nothing but mere questions of fact. But in this case there are questions of law.

Without satisfactory explanation, possession in the vendor was in judgment of law fraudulent; and if there had been a continued change of possession, the transfer would still have been fraudulent in law, as against creditors, if not made upon sufficient consideration. Was this transaction bona fide 1 The note to Wooster had been due three or four years. Silas did not agree to pay it. If Thomas paid it, the property was to be released to him ; if Silas paid it, the transfer was to be absolute. No time was fixed for the payment.

The matter might remain in the same situation for ten years, if Wooster did not sooner enforce the collection; and in the mean time the property of Silas was placed beyond the reach of his creditors. The fraudulent intent of the parties is manifest on the face of the instrument. Stutson v. Brown, 7 Cowen, 132. The judgment of the common pleas must be reversed, and that of the justice affirmed.