also, the doctrine of the English law, as stated in Edwards v. Harben, is clearly asserted. (d) In Kentucky, the same principle, under the modifications it has subsequently undergone in England, seems to have been adopted; for after an absolute bill of sale, if the property remains in the possession of the vendor, it is held to be fraudulent; 2 and yet, when such possession is not inconsistent with the sale, the fraud becomes a matter of fact for a jury. (e) Afterwards, in Wash v. Medley, (f) the milder doctrine was declared, that a transfer of chattels by deed, without any change of possession, was not per se fraud, but only a matter of inference for a jury. (g) presumption of a secret trust between the debtor and the preferred creditor, and the deed is void so far as the rights of creditors are affected. The law in such a case raises the conclusion of fraud," incapable of being rebutted or explained." But if the case rested only on constructive, and no actual fraud, the deed would be permitted to stand as a security for any consideration advanced at the time.1 (d) Ragan v. Kennedy, 1 Overton (Tenn.) 91. Since that decision, it has been declared in Callen v. Thompson, 3 Yerger, 475, and in Maney v. Killough, 7 Yerger, 440, and again in Mitchell v. Beal, 8 Ibid. 142, that possession remaining with the vendor after an absolute sale, or with the grantor or mortgagor in deeds of trust and mortgages, after the time of payment, is primâ facie evidence of fraud; but the presumption may be repelled by proof. It was further held, that the retaining of possession by mortgagor of personal property before the day of payment, is not primâ facie evidence of fraud, because it is understood to be a tacit or presumed agreement that the mortgagor should retain possession. See also infra, p. 526, note a. (e) Baylor v. Smithers, 1 Littell, 112. Goldsbury v. May, 1 Litt. 256. Hundley v. Webb, 3 J. J. Marsh. 643. (g) Again, in Brummel v. Stockton, 3 Dana (Ken.) 134, and Laughlin v. Ferguson, 6 Ibid. 117, the rule is laid down strictly, that on an absolute sale of movable property, possession must go with the title, or the sale will be per se void as to the creditors and subsequent purchasers, notwithstanding any agreement, however fair, that the seller may retain possession. And such seems to be the law in Missouri. Sibly v. Hood, 3 Missou. 290. Foster v. Wallace, 2 Ibid. 231; and as laid down in Georgia, in Howland v. Dews, R. M. Charlton, 386. The rule in Kentucky applies only to sales by private voluntary contract, and not to sales on execution, where the simple retention of possession by the debtor is not necessarily fraudulent; nor to sales upon a mortgage condition, provided the condition be inserted and the deed recorded. 6 Dana, 120. Vernon v. Morton, 8 Ibid. 253. Swigert v. Thomas, 7 Ibid. 222. The rule, that possession must go with the deed, does not apply in Kentucky to mortgages and deeds of 1 And in Pringle v. Rhame, 10 Rich. Law (S. C.) 72, the Court of Appeals decided, that where a slave is sold, the consideration of which sale is an antecedent indebtedness, and the slave remains in the possession of the vendor, with a stipulation to pay hire, the stipulation takes the case out of the rule of Smith v. Henry. 2 Waller v. Cralle, 8 B. Mon. 11. In Pennsylvania, the English doctrine is adopted and followed in its fullest extent. The general principle is explicitly and emphatically recognized, that on an absolute sale or assignment of chattels, possession must accompany and follow the deed, and vest exclusively in the vendee, or it is fraudulent in law, though there be no fraud in fact. (h) As between the vendor and vendee, the property will belong to the vendee; but the sale without delivery is void as to creditors; and if the vendor sells and delivers it to a bona fide purchaser, without notice, the purchaser will hold against the original vendee. () As an exception to the general rule, it is admitted that goods may, after they have been levied upon, or after a fair purchase of them at a sale *523 * on execution, be safely left in the possession of the defendant, without a necessary inference of fraud; though the exception in the case of a levy merely, was afterwards restricted to household furniture. (a) Delivery of the goods is held to be as requisite in the case of a mortgage of goods, as of an absolute sale of goods under the statutes of 13 and 27 Eliz.; and merely stating on the face of the deed that possession was to be retained; is not sufficient to take the case out of the statute, even in the case of a mortgage of goods; and the transaction has been adjudged to be fraudulent per se, and void against a subsequent bona fide purchaser without notice. (b) The just policy and legal solidity of the rule, that holds all such deeds of chattels fraudulent in law, were asserted in the case to which I have last alluded, with distinguished ability and effect. The retention of trust, which are required to be recorded. 5 Littell, 243. 1 J J. Marsh. 282. 353. 3 Dana, 204. 16 Peters U. S. 112. 3 Idem, (i) Dawes v. Cope, 4 Binney, 258. Babb v. Clemson, 10 Serg. & Rawle, 419. Shaw v. Levy, 17 Ibid. 99. Hower v. Geesaman, Ibid. 251. Streeper v. Eckart, 2 Wharton, 302. Hoofsmith v. Cope, 6 Wharton, 53. A constructive, symbolical, or temporary delivery of personal property is not sufficient to change the ownership as to creditors. There must be actual delivery at the time, and a continuing possession. M'Bride v. M'Clelland, 6 Watts & Serg. 94. By statute of Pennsylvania of 14th June, 1836, and the construction given to it, an assignee, under a voluntary deed of assignment for the benefit of creditors, may suffer the goods to remain in possession of the assignor for thirty days, without subjecting them to an execution of a creditor of assignor. This delay is to afford time to comply with the requisitions of the statute. (a) Levy v. Wallis, 4 Dallas, 167. Waters v. McClellan, Ibid. 208. Chancellor v. Phillips, Ibid. 213. Myers v. Harvey, 2 Penn. 478. (b) Clow v. Woods, 5 Serg. & Rawle, 275. Welsh v. Hayden, 1 Penn. 57, S. P. possession must not only be a part of the contract, but it must appear to be for a purpose, fair, honest, and necessary, or conducive to some fair object in view. Appearances must not only agree with the real state of things, but the real state of things must be honest and consistent with public policy. Such were the cases of Bucknal v. Roiston, and Cadogan v. Kennett.1 Where the motive of the sale is the security of the vendee, and the vendor is permitted to retain the visible ownership for the convenience of the parties, it is a fraud, though the arrangement be inserted in the deed or mortgage. The policy of the law will not permit the owner of personal property to create an interest in another, either by mortgage or absolute sale, and still continue to be the visible owner. The law will not stay to inquire whether there was actual fraud or not, and will infer it at all events; for it is against sound policy to suffer the vendor to remain in possession, whether an agreement to that effect be or be not expressed in the deed. It necessarily creates a secret incumbrance as to personal property, when, to the world, the vendor * or *524 mortgagor appears to be the owner, and he gains credit as such, and is enabled to practise deceit upon mankind. If the possession be withheld pursuant to the terms of the agreement, some good reason for it, beyond the convenience of the parties, must appear; and the parties must leave nothing unperformed within their power, to secure third persons from the consequences of the apparent ownership of the vendor.1 If it be the sale or mortgage of articles undergoing a process of manufacture, to be delivered when finished, or of various other goods and chattels, and possession can properly be retained, there ought to be a specific inventory of the articles, so as to apprise creditors of what the conveyance covered, and to prevent the vendor from changing and covering property to any extent by dexterity and fraud. The Supreme Court of Pennsylvania have regretted, that even in the excepted case of household furniture, the goods seized on execution may be left in the hands of the defendants. This was contrary to the common law, which would not endure the levying 1 Sce Hugus v. Robinson, 24 Penn. 9. 1 Born v. Shaw, 29 Penn. 288. on goods only as a security, (a) and wisely gave a subsequent execution creditor the preference, if goods levied on by execution were suffered to remain in the hands of the defendant. The exception of household furniture has notoriously occasioned collusion and fraud, and been productive of gross abuse. The levy was a very imperfect notice to third persons. (b) * 525 *The same doctrine has been declared to be the law in Illinois, New Jersey, Connecticut, and Vermont. Delivery of possession, in the case of a sale or mortgage of chattels, is held to be necessary whenever it is practicable; and to permit the goods to remain in the hands of the vendor is declared to be an extraordinary exception to the usual course of dealing, and requires a satisfactory explanation. There must be an actual and not a colorable change of possession. The leading decisions, in England and in this country, in favor of the legal inference of fraud in such cases, are referred to, and the conclusion adopted, that on a sale or mortgage of goods, an agreement either in or out of the deed, that the vendor may keep possession, is, except in special cases, fraudulent and void, equally against creditors and bona fide, purchasers. (a) (a) Bradley v. Wyndham, 1 Wils. 44. owner. (b) Cowden v. Brady, 8 Serg. & Rawle, 510. Dean v. Paton, 13 Ibid. 345. In Barnes v. Billington, 1 Wash. C. C. 38, Judge Washington held, that household furniture did not properly form an exception to the general rule; that if the goods be levied on under a fi. fa., and left in the possession of the defendant for any length of time, no lien attached by the levy, as against subsequent executions or purchasers. The rule, as it was afterwards declared in Berry v. Smith, 3 Ibid. 60, does not require the officer to remove the goods or sell them immediately, provided he does it in a reasonable time, and does not leave the debtor in the mean time with the power to deal with the property as So in Wood v. Vanarsdale, 3 Rawle, 401, it was held, that the sheriff was only bound to take possession of goods levied on execution, within a reasonable time; but if on a levy he be directed by the plaintiff to stay further proceedings until further order, and the object be security for the debt, the lien created by the levy is discharged. Commonwealth v. Stremback, 2 Rawle, 341. In North Carolina the same general doctrine prevails; and the sheriff who seizes goods and chattels on execution must take possession, or by some notorious act divest the debtor's possession and use of them, or he will lose his preference over a subsequent seizure, unless the leaving the goods in the debtor's possession be accounted for, as in the case of a growing crop, or an article in the course of being manufactured, or the like. Roberts v. Scales, 1 Ired. 60. In South Carolina the courts do not follow the rule in most of the other States, that a senior execution creditor will lose his lien as against a junior creditor, by inactivity. Local considerations have led to this policy. Adair v. McDaniel & Cornwell, 1 Bailey, 158. (a) Thornton v. Davenport, 1 Scam. 296. In this Illinois case the true doctrine is laid down with precision. All conveyances, it is held, of goods and chattels, where In these American decisions, the stern conclusions of *526 the doctrine, that fraud in the given case is an inference the possession is permitted to remain with the donor or vendor, are fraudulent per se, and void as to creditors and purchasers, unless the retaining of possession be consistent with the deed where the transaction is bonâ fide, and from the nature and provisions of the deed, the possession is to remain with the vendor, that possession being consistent with the deed, does not avoid it; and therefore mortgages, marriage settlements, and limitations over of chattels, are valid without transfer of possession, if the transfer be bonâ fide, and the possession remain with the person according to the deed. But an absolute sale of personal property, and the possession remaining with the vendor, is void as to creditors and purchasers, even though authorized by the terms of the bill of sale. The opinion of one of the judges in that case went to the whole length of the salutary doctrine, that the mortgagee or vendee taking a bill of sale for security, must take possession, even though the arrangement in the deed or mortgage be different, because the policy of the law will not permit the owner of personal property to create an interest in another, either by mortgage or absolute sale, and still continue to be the visible owner. And see Davis v. Ransom, 18 Ill. 396; Chumar v. Wood, 1 Halst. 155; Patten. v. Smith, 5 Conn. 196; Swift v. Thompson, 9 Ibid. 63; Toby v. Reed, 9 Ibid. 216; Mills v. Camp. 14 Ibid. 219; Osborne v. Tuller, Id. 529. But in New Jersey, the subject has been since fully discussed, and a rule of a more qualified character declared. In Sterling v. Van Cleve, 7 Halst. 285; it was held, after an elaborate view of the subject, that a mere agreement by the creditor to delay the sale of the debtor's goods, levied on by execution, was not, of itself, evidence of fraud. There must be some proof of actual fraud to subject a prior execution to postponement. If the plaintiff suffers the goods levied on by execution to remain with the debtor for a specific time, on his agreeing to pay a rent therefor, equivalent to keeping the goods of the same value and in good order, it is not a fraud upon a subsequent execution creditor, and will not postpone the prior execution. See, also, in Bank of New Brunswick v. Hassert, Saxton Ch. (N. J.) 1, Cumberland Bank v. Hann, 4 Harr. (N. J.) 166, a more relaxed indulgence in leaving goods seized on execution with the defendant, if done in good faith. In Vermont it was held, that in ordinary cases of sales of personal property, if the vendor retains possession, the sale is fraudulent and void as to creditors. Bonâ fide sales by sheriffs were an exception. Boardman v. Keeler, 1 Aiken (Vt) 158. Mott v. McNiel, 1 Ibid. 162. In Weeks v. Wead, 2 Ibid. 64, the same conclusion was adopted, after a full review of the authorities on each side of the question; and it was declared, that in the sale of chattels, if the conveyance be absolute, the want of a change of possession was not merely primâ facie evidence of fraud, but a circumstance per se which rendered the transaction fraudulent and void; and no stipulation in the contract, that the vendor should retain possession, would take the case out of the rule, if, from the nature of the transaction, the sale was absolute, and possession would accompany it. So again, in Fletcher v. Howard, 2 Aiken Vermont, 115, it was decided to be essential to a pledge, as well as to a sale of personal chattels, that it be accompanied with delivery of possession as against third persons; and that if the pawnee takes a delivery, and yet immediately redelivers the thing pledged to the former owner, or permits it to go back into his possession, the special property created by the bailment is determined and gone.2 The same doctrine was followed out in Beattie v. Robin, 1 Rhines v. Phelps, 3 Gilm. 455. 2 If the vendor pays to the first vendee the money received for the second sale, and afterwards takes the money and buys a similar article for the first vendee, and retains possession, |