Osborne against Tuller and another, 14 Conn. 529

ChüRch, J. Perhaps there has been no question more frequently discussed, and certainly none discussed with less satisfactory results, than the primary one presented by this motion, viz. how far, and in what sense, the retention of possession of personal property by the vendor, after a sale, is evidential of fraud, or of a secret trust for his benefit ? We have no disposition here, to examine all the cases which have been reported upon this prolific subject of controversy. By doing so, we should have no hope of reconciling them. Some of them are irreconcileable.

And still we think the discrepancy in the best considered cases, has .not been as great as the courts and the bar have supposed. The case referred to, as the leading one on this subject, and yet not the earliest, is Edwards v. Harben, 2 Term Rep. 587.

The language of the court in that case is, “ that if possession does not accompany and follow the deed, it is, in case of an absolute deed, not mere evidence of fraud, but fraud per se.” And they say also, that “ this was always the law.” That the court did not intend, by the language used, to dé-. termine, that the retention of possession by the vendor was conclusive, unexplainable evidence of fraud, — or rather, that it was a fraud, instead of being a legal presumption of fraud,— in all cases, is evident from several considerations.

The counsel of the plaintiff did not claim the law to be so ; and he refers to the case of a sale of a ship at sea. The court also make the question to depend upon whether the want of immediate possession be consistent with the deed ; and they cite several cases to show, that a sale may be good, though not accompanied by possession in the vendor.

We understand the doctrine of that case to be, that the want of immediate and accompanying possession must be legally consistent with the deed ; or, that such sale is void, unless accompanied by such facts and circumstances, as, in presumption of law, will show that the retention of possession is consistent with the sale.

If this be so, then it is evident, that to show or prove to a jury, that a sale is bona fide, and made upon good and full consideration, does not relieve the case from the infirmity or legal presumption of fraud, because this does not explain, nor pretend to explain, the possession of the goods sold, and why this possession has not gone along with the sale. This, we believe, is the doctrine of all the earlier English cases; and we doubt whether the courts of Great-Britain have intended essentially to depart from it, in modern ones. Bucknal v. Roiston, Prec. Ch. 286. 1 Ves. 360. Rice v. Serjeant, 7 Mod. 37.

Paget v. Perchard, 1 Esp. Ca. 206. Wordall v. Smith, 1 Campb. 333. Jezeph v. Ingram, 8 Taun. 838. S. C. 1 Moore 189. The courts in the state of New-York have furnished their full proportion of decided cases on this question ; and,, if we mistake not; have, until very recently, recognized the principle before advanced, as being the law of England and of that state. The case of Sturtevanl & al. v.

Ballard, 9 Johns. -Rep. 337., was decided in 1812, and weli considered; and that case has been cited and referred to, with approbation, by the courts in that state, as well as in this, in nearly all the cases which have been subsequently discussed, in which this question has been involved. The doctrine of the case is, that “ there must be some sufficient motive, of which the court is to judge, for the non-delivery of the goods, or the law will still presume the sale to have been made with a view to delay, hinder or defraud creditors.

A delivery of possession is so much of the essence of the sale of chattels, that an agreement to permit the vendor to keep possession, is an extraordinary exception to the usual course of dealing, and requires a satisfactory explanation.” It is, as we have before remarked, the retention of the possession by the vendor, which requires satisfactory explanation ; and this certainly is not done, by showing the bonajides of the sale. The subsequent cases of Ludlow v. Hurd, 19 Johns. Rep. 218. Jennings v. Carter, 2 Wend. 446. Archer v. Hubbell, 4 Wend. 514. Collins v. Brush, 9 Wend. 189. Gardner v. Adams, 12 Wend. 296.

Doane v. Eddy, 16 Wend. 523. Randall v. Cook, 17 Wend. 54. Stoddard v. Butler, 20 Wend. 507. Beekman v. Bond, 19 Wend. 444., all, more or less directly, confirm this doctrine. It is true, that in a recent case of Smith v. dicker, 23 Wend. 653., a majority of the court of errors in the state of New-York, in opposition to the opinion of the chancellor, and the judges of the supreme court, held, that the retention of the possession, by the mortgagor, of personal property mortgaged, would not render the mortgage void, if it was made in good faith, and without any intent to defraud.

But this decision was placed entirely upon what was believed, by the court, to be the proper construction of the revised statutes of that state, relative to this subject.

And whatever, in consequence of this decision, may be hereafter holden to be the law of the state of New-York, it is certain, that heretofore, the overwhelming weight of authority and good sense, as shewn by the numerous cases cited, has recognized the principle, that the want of accompanying possession must be explained, by facts which will satisfy the law, that the sale was not fraudulent; and that this cannot be done, by proving, as a matter of fact, that the transaction was bona fide. We have examined the cases in England, and in the state of New-York.

We might refer to others in Pennsylvania, - and in the supreme and district courts of the United States, affirmatory of the same views. But, after all, the question before us is, what is the law of Connecticut ? If we have taken a correct view of the case of Edwards v. Harben, 2 Term.

Rep. 586., and if the court there was justified in supposing that the doctrine of that case had been so ruled forty times in Guildhall, and that the law had always been so held, we cannot be at a loss to know what is the common law, and. of course, what is our own law, unless the courts of this state have introduced into our system a new and variant principle. An examination of our own cases will determine this. In the case of Woodbridge v.

Perkins, 3 Day, 364., this question was very fully discussed by counsel; and although the court did not -go fully into the consideration of it, yet they say, that “ it is a rule of law, that where there is a sale of personal property, the possession of such property musí be changed from the vendor to the vendee, or it will be liable to the creditors of the vendor.” And in Burrows v. Stoddard, 3 Conn.

Rep. 431., the court does not intimate, that a retention of possession by a vendor can be satisfactorily explained, only by proving the transaction or sale to have been, in point of fact, honest. “ The question,” say the court, “is, whether this presumption of fraud can be repelled, by any evidence whatever.” No case, that we know of, unless, possibly, the case of Hamilton v. Russell, 1 Cranch, 309., has gone so far as to hold, that the legal presumption of fraud cannot be explained. As we have seen before, the case of Edwards v. Harben does not.

The doubt and the confusion on this subject, have arisen from the language of the courts, when speaking of the manner in which this legal presumption can be repelled. And this doubt arises from what the court say in the case of Burrows v. Stoddardt as it does from the same language used by other courts in other cases. “ It seems to me,” says the judge, “ that whether a conveyance or attachment is fraudulent or not, is, necessarily, a question of fact, to be submitted to the jury.” And this position is unquestionably true, if understood as explained by the same court in Toby v. Reed, 9 Conn.

Rep. 216., the jury acting under the direction of the court. In Patten v. Smith, 4 Conn. Rep. 450., the court say, that the ¿oods having been left in the possession of the mortgagees, furnishes a strong badge of fraud, “ and even conclusive evidence of it, unless explained by the most satisfactory reasons.” What is to be explained, — the character of the mortgage, and whether it was bona fide, or not ? No ; the continuing of the possession of the goods in the hands of the mortgagor, must be explained.

As we have before remarked, the law must be satisfied, by the reasons given- in explanation, as well as the jury persuaded of the integrity of the transaction. In the same case, as reported 5 Conn. Rep. 196., the court go very fully into an examination of the reasons upon which the doctrine is based, and, in adverting to the leading case of Sturtevant v. Ballard, 9 Johns. Rep. 337., say, it furnishes a decisive confirmation of the general rule ; and the reasoning of the supreme court of the state of New-York, is fully adopted. Then came the case of Swift v. Thompson, 9 Conn.

Rep. 63., by which, it was supposed, the law of Connecticut on this subject was settled, and discussion put at rest. The court, referring to the clear and explicit doctrine of the cases of Sturtevant v. Ballard, 9 Johns. Rep. 337., and Patten v. Smith, 5 Conn. Rep. 196., say: “This has been the law of Connecticut, for the last forty years, if not from the beginning. It 'is not according to the course of the court to call this a fraud per se, and to direct the jury to find the sale void, but the question is submitted to the jury with instructions,” &c. The same explanation is given in Toby v. Reed, 9 Conn.

Rep. 216. The rule established in these cases, was followed, by the judge at the circuit, in the case of Mills v. Camp, 14 Conn. Rep. 219. He submitted the questions of fact to the jury, and instructed them as to what the law demanded, as a sufficient excuse for not removing the property attached. This course was sanctioned, by this court, as being in conformity with the established principles of our law.

And with much truth it is said, that the object of requiring a transfer of possession, is, to prevent fraud. “ It is not a rule of evidence only, but of policy.” And the reasons why it is so, and why it ought to be so, are clearly given. In the case of Carter v. Watkins, 14 Conn. Rep. 245., decided by this court, only one week after the decision of „„„ „ , , , , , , Mills v. Camp, it cannot be supposed the court intended impugn any of the doctrines of the former case : — indeed, we know they did not.

The only question presented or discussed in the case, was, whether the reasons urged in explanation and excuse of the neglect of accompanying possession, were legally sufficient to repel the legal presumption of fraud.

And the court held expressly, that although an adequate price was paid, and although the property was left, by the vendor, for the purpose of being manufactured, these circumstances did not furnish such an explanation as the law would pronounce satisfactory — thereby clearly recognizing the principle of former cases, that although the facts urged in explanation are to be submitted to, and ascertained by the jury, their legal effect is to be determined by the court.

It becomes necessary, therefore, to determine, whether in the present case, such facts appeared, or were claimed to exist, as would furnish a legal excuse for permitting the property in controversy here, to remain in the possession of the assignor or vendor ? It will be recollected, that the court submitted the question of bona fides to the jury, and also whether there was in fact a secret trust, and whether the assignee permitted the assign- or or vendor to hold himself out to the world as the owner of the chattels in dispute, notwithstanding the assignment.

But the defendants claimed further, that under the circumstances detailed in the motion, if the assignee permitted the goods in dispute either to remain in possession of the assignor, or to return to his possession after the assignment, without some other and legal reason than any which appears, the assignment, as to such chattels, was void. And this would have been our opinion, in conformity with the principles before advanced, had this been the case of an ordinary sale or assignment for the benefit of creditors. VThis assignment was made under the provisions of the statute in addition to

an act against fraudulent conveyances, passed in 1828. By this law, the precise duty of an assignee is prescribed : the deed of assignment is to be recorded, like a last will and testament, upon the records of the court of probate ; and thus full notoriety and publicity is given to the transaction. An inventory of every

article of estate assigned is required to be made out and lodged upon the files of the court; the whole process, from its commencement to its consummation, is a proceeding in court, and to which all the creditors of the insolvent are parties, and for whose sole benefit the proceedings are had.

An assignment under this statute is something more than a mere sale or assignment inter partes, — it is a public legal proceeding, and the assignee holds a relation to the estate assigned, very nearly such as an executor or administrator holds to the property of a deceased person ; — he executes a bond as a security to the creditors for whom he acts; and with such a bond, it is difficult to see how' such an assignment can be merely colourable.

We believe, therefore, that these facts do afford a sufficient legal excuse for the want of accompanying possession by the as-signee, and have the legal effect of removing from the transaction any presumption of fraud growing out of the want of possession!”!

We do not think, that the statute of 1837, giving authority to trustees to employ the assignor as their agent, with the assent of the court of probate, affects this question ; nor do we intimate, that if the assignor is permitted, without the sanction of the statute of 1837, to hold himself out to the world as the owner of the estate assigned, that the charge of fraud could not be sustained.

But we believe that the legal presumption of fraud, arising from the continuing possession of the assignor, is repelled, by proof that the assignment was made under the statute of 1828, and that the trustee has complied with the requirements of that law, unless he has permitted the assignor to treat the whole as void, by holding himself out to the public as being the real owner of the estate assigned. And therefore, we do not advise a new trial. In this opinion the other Judges concurred. New trial not to be granted.