American authorities holds that in order to avoid a conveyance, subsequent creditors must show actual intent to defraud them.38 When a conveyance is set aside for fraud upon existing creditors, prior and subsequent creditor share pro rata. This principle applies only on a general distribution of the debtor's estate.40 39 If a subsequent creditor has notice of the conveyance before his claim accrued, he is not deceived by the conveyance and there can be no fraud.41 lusion, or any intent to deceive third persons, in making a voluntary conveyance, although the grantor be not then indebted, the transfer will be voidable by subsequent creditors. In such cases the conveyance is made mala fide and cannot be upheld in derogation of the claims of creditors." Winchester v. Charter, 94 Mass. (12 Allen) 606, 609, 610. Citing Reade v. Livingston, 3 Johns. Ch. (N. Y.) 481; Bennett v. Bedford Bank, 11 Mass. 421; Damon v. Bryant, 19 Mass. (2 Pick.) 411; Parkman v. Welch, 36 Mass. (19 Pick.) 231, 237. "A subsequent creditor may also impeach a voluntary deed, simply on the ground that it was made with intent to defraud existing creditors. 1 Storey's Eq. Juris., § 361; King v. Wilcox, 11 Paige (N. Y.) 594. But in such a case in order to establish a good title to relief. he must show that, at the time of the commencement of his suit, there were debts still outstanding which the grantor owed at the time he made the deed, otherwise no foundation is laid for avoiding it as a fraud upon antecedent creditors, for if the grantor has paid all his debts incurred prior to the conveyance, that fact fully repels all idea of fraud as to them. Spirett v. Willows, 3 DeG. J. & S. 292; Freeman v. Pope. L. R. 9 Eq. 205; L. R. 5 Ch. App. 536; Lush v. Wilkinson, 5 Ves. 387; Kidney v. Consomaher, 12 Ves. 156." Claflin v. Mess, 30 N. J. Eq. (3 Stew.) 211, 213. 38. Bruggerman v. Hoerr, 7 Minn. 337; Stone v. Myers, 9 Minn. 303; Sanders v. Chandler, 26 Minn. 273; Hartman v. Weiland, 36 Minn. 223; Bloom v. Moy, 43 Minn. 397; Walsh v. Byrnes, 39 Minn. 527; Union Nat. Bank v. Pray, 44 Minn. 168; Fullington v. Northwestern, etc., Ass'n, 48 Minn. 490. 39. "It is well settled, where a deed is set aside as void as to existing creditors, that all the creditors, prior and subsequent, share in the fund pro rata." Kehr v. Smith, 87 U. S. (20 Wall.) 31, 36. Citing Magawley's Trust, 5 DeG. & S. 1; Richardson v. Smallwood, 1 Jac. 552, 558; Savage v. Murphy, 34 N. Y. 508; Iley v. Niswanger, Harper's Eq. (S. C.) 295; Robinson v. Stewart, 10 N. Y. 189; Thompson v. Dougherty, 12 S. & R. (Pa.) 448, 455, 458; Hoke v. Henderson, 14 N. C. (3 Dev.) 12, 14; Kissam v. Edmundson, 16 N. C. (1 Ired. Eq.) 180: Sexton v. Wheaton, 21 U. S. (8 Wheat.) 229; Norton v. Norton, 59 Mass. (5 Cush.) 524, 529; O'Daniel v. Crawford, 15 N. C. (4 Dev.) 197, 204; Reade v. Livingston, 3 Johns. Ch. (N. Y.) 481, 499; Townsend v. Windham, 2 Ves. 1, 10; Jenkyn v. Vaughan, 3 Drew, 419, 424; S. P. O'Brien v. Stambach, 101 Ia. 40. To the same effect is O'Neill v. Kilduff, 81 Conn. 116. 40. Basset v. McKenna, 52 Conn. 437. 41. Ayres v. Moore, 2 Stew. (Ala.) 336; Phillips v. Reitz, 16 Kans, 396; Kane v. Roberts, 40 Md. 590; Sledge v. Obenchain, 58 Miss. 670; Pitney v. Leonard, 1 Paige Ch. (N. Y.) 461; Monroe v. Smith, 79 Pa. St. 459; Many of the cases cited involve the sale of real estate and actual fraud. The same principles apply, however, to the sale of personalty and to constructive fraud.43 Section 27. Definition of Negotiable Document of Title.—A document of title in which it is stated that the goods referred to therein will be delivered to the bearer, or to the order of any person named in such document, is a negotiable document of title. Sections 27 to 40, inclusive, treat of the mode and effect of the transfer of title to "documents of title" and the goods represented by them. A brief glance at the mode and effect of the transfer of these documents at common law will be helpful in understanding the changes made by the provisions of the Act, and the rights of the parties under transfers made in compliance therewith. Definition of documents of title.-A "document of title1 to goods' includes any bill of lading,' dock warrant,3 warehouse re Garahy v. Bayley, 25 Tex. 294; Lehmberg v. Biberstein, 51 Tex. 457. 42. Redfield v. Buck, 35 Conn. 328, 337. 63. 43. Swift v. Thompson, 9 Conn. 1. A document of title is any bill of lading, India warrant, dock warrant, warehouse-keeper's certificate, warrant or order for the delivery of goods, or any other document used in the ordinary course of business as proof of the possession or control of goods, or authorizing, or purporting to authorize, either by indorsement or by delivery, the possessor of such document to transfer or receive the goods thereby represented." The Factors' Act, 5 & 6 Vict. 39, § 4; Benjamin on Sales, § 809. 2. Bills of lading.-" Different definitions of the commercial instrument, called the bill of lading, have been given by different courts and jurists, but the correct one appears to be that it is a written acknowl edgment, signed by the master, that he has received the goods therein described from the shipper to be transported on the terms therein expressed to the described place of destination, and there to be delivered to the consignee or parties therein designated." The Delaware v. Oregon Iron Co., 81 U. S. (14 Wall.) 579. Citing O'Brien v. Gilchrist, 34 Me. 558. To the same effect: The Tongoy, 55 Fed. 329, 331; Merchants, etc., Bank v. Hewitt, 3 Ia. 93; McMillen v. Mich., etc., Ry. Co., 16 Mich. 79; The Coville v. Hill, 4 Denio (N. Y.), 323, 330; Creery v. Holly, 14 Wend. (N. Y.) 26, 28. "Such an instrument is twofold in its character; that is, it is a receipt as to the quantity and description of the goods shipped, and a contract to transport and deliver the goods to the consignee or other person therein designated and upon the terms specified in the same instrument. Beyond . ceipt, or order for the delivery of goods, or any other document used in the ordinary course of business in the sale or transfer of all doubt. a bill of lading in usual form is a receipt for the quantity of goods shipped and a promise to transport and deliver the same as therein stipulated." The Delaware v. Oregon Iron Co., 81 U. S. (14 Wall.) 579. Citing Bates v. Todd, 1 Moo. & Rob. 106; Berkley v. Watling, 7 Ad. & El. 29; Wayland v. Mosely, 5 Ala. 430; Brown v. Byrne, 3 E. & B. 714; Blaikie v. Stembridge, 6 C. B. (N. S.) 894, 907. "Receipts may be either a mere acknowledgment of payment or delivery, or they may also contain a contract to do something in relation to the thing delivered. In the former case, and so far as the receipt goes only to acknowledge payment or delivery, it, the receipt, is merely prima facie evidence of the fact, and not conclusive, and, therefore, the fact which it recites may be contradicted by oral testimony. But, in so far as it is evidence of a contract between the parties, it stands on the footing of all other contracts in writing and cannot be contradicted or varied by parol evidence. 1 Greenl. Ev., 12th Ed., § 305; Bradley v. Dunipace, 1 Hurls. & C. 525. Textwriters mention the bill of lading as an example of an instrument which partakes of a two-fold character, and such commentators agree that the instrument may, as between the carrier and the shipper, be contradicted and explained in its recital that the goods were in good order and well conditioned by showing that their internal state and condition was bad or not such as is represented in the instrument, and, in like manner, in respect to any other fact which it erroneously recites; but in all other respects it is to be treated like other written contracts. Hastings v. Pepper, 28 Mass. (11 Pick.) 42; Clark v. Barnwell, 53 U. S. (12 How.) 272; Ellis v. Willard, 9 N. Y. 529; Babcock v. May, 4 Ohio, 346; Adams v. Packet Co., 5 C. B. (N. S.) 492; Sack v. Ford, 13 C. B. (N. S.) 100." The Delaware v. Oregon Iron Co., 81 U. S. (14 Wall.) 579. "It is an instrument of twofold character. It is at once a receipt and a contract. In the former character it is an acknowledgment of the rereceipt of property on board his vessel by the owner of the vessel. In the latter it is a contract to carry safely and deliver. The receipt of the goods lies at the foundation of the contract to carry and deliver. If no goods are actually received, there can be no valid contract to carry or to deliver." Pollard v. Vinton, 105 U. S. 7. Approved in St. Louis, Iron Mt. & So. Ry. Co. v. Knight, 122 U. S. 79. Citing Baltimore & Ohio Ry. Co. v. Wilkins, 44 Md. 11; Miller v. Hannibal & St. Jo. Ry. Co., 90 N. Y. 430. "It is well settled that as between the shipper and the ship-owner, the receipt in the bill of lading is open to explanation." Relyea v. The New Haven Rolling Mill Co., 42 Conn. 579, 580. 3. Dock warrants.-A dock warrant is a negotiable instrument, in use in England, given by the dock owners to the owner of goods imported and warehoused in the docks, as a recognition of his title to the goods, upon production of the bills of lading." 1 Bouvier, 597. "In treating of the effect of endorsing and delivering dock warrants and warehouse warrants or certiflcates, Blackburn, J., remarks (Blackburn on Sales, 1845, p. 297), that 'these documents are generally written contracts by which the holder of the endorsed document is rendered the person to whom the holder of the goods is to deliver them, and in so far they greatly resemble bills of lading; but they differ from them in goods, as proof of the possession or control of the goods, or authorizing, or purporting to authorize, the possessor of the document to transfer or receive, either by endorsement or by delivery, goods represented by such document." The most common documents of title are bills of lading and warehouse receipts. Primarily they this respect, that, when goods are at sea, the purchaser who takes the bill of lading has done all that is possible in order to take possession of the goods, as there is a physical obstacle to his seeking out the master of the ship and requiring him to attorn to his rights; but when the goods are on land, there is no reason why the person who receives the delivery order or dock warrant should not at once lodge it with the hailee, and so take actual or constructive possession of the goods. There is, therefore, a very sufficient reason why the custom of merchants should make the transfer of the bili of lading equivalent to an actual delivery of possession, and yet not give such an effect to the transfer of documents of title to goods on shore. Besides this substantial difference between them, there is the more technical one that bills of lading are ancient mercantile documents which may be subject to the law merchant, whilst the other class of documents are of modern invention, and no custom of merchants relating to them has ever been established It is, therefore, submitted that the endorsement of a delivery order or dock warrant has not (independently of the Factors' Act) any effect beyond that of a token of an authority to receive possession.'" Benjamin on Sales, § 815. 4. Warehouse receipts.-Warehouse receipts are receipts given by a warehouseman for chattels placed in his possession for purposes of storage. Burton v. Curyea, 40 Ill. 320; Sinsheimer v. Whitely, 111 Cal. 378; Toner v. Citizens' State National Bank, 25 Ind. App. 29; Franklin National Bank v. Whitehead, 149 Ind. 560; Valley Nat. Bank v. Frank, 12 Mo. App. 460; Conrad v. Fisher, 37 Mo. App. 352; Union Savings Association v. Elevator Co., 81 Mo. 341; Farmers' Bank v. Lang. 87 N. Y. 219; Yenni v. McNamee, 45 N. Y. 614; Thorne v. First Nat. Bank, 37 Ohio St. 254; Marks v. Bridges, 106 Tenn. 540; Steubli v. Blaine Nat. Bank, 11 Wash. 426; Shepardson v. Carey, 29 Wis. 34; Geilfuss v. Corrigan, 95 Wis. 651. "Definition of negotiable (warehouse) receipt.-A receipt in which it is stated that the goods received will be delivered to the bearer, or to the order of any person named in such receipt, is a negotiable receipt. No provision that is non-negotiable shall be inserted in a negotiable receipt, and such provision, if inserted, shall be void." Warehouse Receipts Act, Pub. Acts, Conn., 1907, Ch. 220, § 5. Weighing tags are not warehouse receipts or sufficient muniments of title to represent and transfer goods. Sinsheimer v. Whitely. 111 Cal. 378; Cathcart v. Snow, 64 Ia. 584. 5. Ghirardelli V. McDermott, 22 Cal. 539; McEwan v. Smith, 2 H. L. Cas. 309: Griffiths v. Perry, 1 E. & E. 680, 28 L. J. Q. B. 204. See Keeler v. Goodwin, 111 Mass. 490; Anderson v. Read, 106 N. Y. 333. are acknowledgements of the receipt of goods, and a contract for the transportation or storage of them. Besides being evidence of 7. See cases in notes 2 and 4, ante. Shaw v. Ry. Co., 101 U. S. 557; St. Louis, Iron Mt., etc., Ry. Co. V. Knight, 122 U. S. 79; Pollard v. Vinton, 105 U. S. 7; The Delaware, 81 U. S. (14 Wall.) 579; Wayland v. Mosely, 5 Ala. 430; McTyer v. Steele, 26 Ala. 487; Louisville, etc., Ry. Co. v. Wilson, 119 Ind. 352; Wisconsin v. Young, 3 Gr. (Ia.) 268; O'Brien v. Gilchrist, 34 Me. 554; Baltimore, etc., Ry. Co. v. Wilkins, 44 Md. 11; Missouri v. Webb, 9 Mo. 193; Miller v. Hannibal, etc., Ry. Co., 90 N. Y. 430; Babcock v. May, 4 Ohio, 346; State v. Koshland, 25 Ore. 178; Anderson v. Portland Mills Co., 37 Ore. 483. As receipts, bills of lading and warehouse receipts are open to explanation, variation or contradiction by parol evidence. Maryland Ins. Co. v. Ruden, 10 U. S. (6 Cranch) 338; Nelson v. Woodruff, 66 U. S. (1 Black) 156; The Ship Howard v. Weissman, 59 U. S. (18 How.) 231; The Lady Franklin, 75 U. S. (8 Wall.) 325; The Delaware, 81 U. S. (14 Wall.) 601; Wayland v. Mosely, 5 Ala. 430; Cox v. Peterson, 30 Ala. 608; Periera v. Central Pac. Ry. Co., 66 Cal. 92; Relyea v. New Haven Rolling Mills Co., 42 Conn. 579; Bissell v. Price, 16 Ill. 408; Indianapolis, etc., Ry. Co. v. Remmy, 13 Ind. 518; Louisville, etc., Ry. Co. v. Wilson, 119 Ind. 352; Marks v. Mill and Elevator Co., 43 Ia. 146; Lowe Bros. v. Young, 59 Ia. 364; Chapin v. Chicago, etc., Ry. Co., 79 Ia. 582; Thompson v. Williams, 30 Kan. 114; O'Brien v. Gilchrist, 34 Me. 554; Tarbox v. Eastern Steamboat Co., 50 Me. 339; Witzler v. Collins, 70 Me. 290; Atwell v. Miller, 11 Md. 348; Shepherd v. Naylor, 71 Mass. (5 Gray) 591; Sears v. Wingate, 85 Mass. (3 Allen) 103; Blanchard v. Page, 74 Mass. (8 Gray) 281, 287; Richards v. Doe, 100 Mass. 524; Hastings v. Pepper, 28 Mass. (11 Pick.) 43; Gibbons v. Robinson, 63 Mich. 146; Nat. Bank of Commerce v. Chicago, etc., Ry. Co., 44 Minn. 224, 229; Missouri v. Webb, 9 Mo. 194; Meyer v. Peck, 28 N. Y. 590; Fitzhugh v. Wiman, 9 N. Y. 559; Williams v. Wilmington, etc., Ry. Co., 93 N. C. 42; Baltimore, etc., Steamboat Co. v. Brown, 54 Pa. St. 77; Glass v. Goldsmith, 22 Wis. 415, 488. But as contracts of bailment the universal rule as to written contracts applies, that in the absence of fraud, mistake or ambiguity parol evidence is inadmissible to vary its provisions but may be received to identify the subject-matter or explain the usages of trade in view of which it was given, or ambiguous terms, or to show fraud and mistake. The Delaware, 81 U. S. (14 Wall.) 578; Wayland v. Mosely, 5 Ala. 430; Cox v. Peterson, 30 Ala. 608; Louisville, etc., Ry. Co. v. Fulgham, 91 Ala. 555; Barber v. Brace, 3 Conn. 9, 14; Richmond, etc., Ry. Co. v. Shomo, 90 Ga. 496; Indianapolis, etc., Ry. Co. v. Remmy, 13 Ind. 518; Toner V. Citizens' State Bank, 25 Ind. App. 29; Drudge v. Leiter, 18 Ind. App. 694; Louisville, etc., Ry. Co. v. Wilson, 119 Ind. 352; Marks v. Milling & Elevator Co., 43 Ia. 146; Lowe Bros. v. Young, 59 Ia. 364; Hughes v. Stanley, 45 Ia. 622; Irons v. Kentner, 51 Ia. 88; First Nat. Bank v. Milling Co., 103 Ia. 518; Garden Grove Bank v. Humeston, etc., Ry. Co., 67 Ia. 526; Wilde v. Merchants' Despatch Trans. Co., 47 Ia. 272; Thomson v. Williams, 30 Kan. 114; Blanchard v. Page, 74 Mass. (8 Gray) 281, 287; Minn., etc., Ry. Co. v. Ins. Co., 55 Minn. 236; O'Bryan v. Kinney, 74 Mo. 125; St. Louis Ry. Co. v. Cleary, 77 Mo. 634; Turner v. St. Louis, etc., Ry. Co., 20 Mo. App. 632; Fitzhugh v. Wiman, 9 N. Y. 559; Creery v. Holly, 14 |