regulated by statutes, which as a rule declare that sales and assignments of goods in the possession of the vendor shall be presumed to be fraudulent and void as against creditors and purchasers, unless accompanied by an "immediate delivery," and "followed by an actual and continued change of possession," and such presumption shall be conclusive, unless, as in some States, it is made to appear that such sale or assignment "was made in good faith and without any intent to defraud such creditors or purchasers."2

962. What delivery or change of possession necessary.— It remains next to be considered what delivery or change of possession is necessary in order to prevent the imputation of fraud upon creditors or subsequent purchasers. And first it may be noticed that the statutes which have been enacted for the regulation of the subject do not, in the main, declare other or different rules than those which had been already worked out with substantial unanimity by the courts.3

§ 963. "Immediate." In respect of the period within which the delivery or change of possession shall occur, reason, statutes and decisions unite in declaring that such delivery shall be speedy. The statute in New York, Michigan and other States requires that the delivery shall be “immediate;' in Missouri, by statute, there must be "delivery in a reasonable time, regard being had to the situation of the property;'

1 California, Civ. Code, § 3440; Colorado, Gen. Stats., ch. 43, § 14: Kentucky, Stats. 1894, § 1908; Missouri, 1899, § 3410; Nevada, 1885, § 2633; Oklahoma, 1893, § 2663; Utah, R. S. 1898, § 2473.

2 Arizona, R. S. 1887, § 2034; Indiana, R. S. 1897, § 6945; Kansas, G. S. 1897, ch. 112, § 3; Michigan, C. L. 1897, § 9520; Minnesota, G. S. 1894, § 4219; New York, R. S. 1896, Part II, ch. 7, title 2, § 5; Oregon, Ann. L. 1892, ch. 8, title 7, § 776; Wisconsin, G. S. 1898, § 2310.

994

3 In Norton v. Doolittle, 32 Conn. 405, the rule is said to be one of policy as well as of evidence, and requires "an actual, visible and continued change of possession." In Seymour v. O'Keefe, 44 Conn. 128, the court say it "is firmly established in this State as a rule of law and public policy."

4 See Claflin v. Rosenberg, 42 Mo. 439, 97 Am. Dec. 336; Stewart v. Nelson, 79 Mo. 522; Mills v. Thompson, 72 Mo. 367; Burgert v. Borchert, 59 Mo. 80.

while in Pennsylvania, where no statute exists, the delivery must be made either at the time of the sale or within a reasonable time after it. All of these provisions, it is believed, mean substantially the same thing, namely, that the delivery shall take place as soon as it reasonably may, regard being had, not to the convenience of the parties, but to the character of the goods, the situation of the property and the circumstances of the case. It will, by the weight of authority, suffice if it occur before the rights of creditors or purchasers have attached.'

1 See Carpenter v. Mayer, 5 Watts, 483; McMarlan v. English, 74 Pa. St. 296.

2 The term "immediate" can probably mean nothing more than reasonable promptness. See Cass v. Perkins, 23 Ill. 382; People's Mut. Acc. Ass'n v. Smith, 126 Pa. St. 317, 17 Atl. R. 605, 12 Am. St. R. 870; Lyon v. Railway Passenger Assur. Co., 46 Iowa, 631.

In Seymour v. O'Keefe (1876), 44 Conn. 128, the court say that "the rule on this subject should be, and is, that a purchaser of personal property is bound in every instance to take immediate possession, if it is practicable.' Ingraham v. Wheeler, 6 Conn. 277. But what if it is not practicable? Then we say he is bound to take possession, or do that which is equivalent, in a reasonable time. But reasonable time' must be construed, not with reference to the mere convenience of the party, but only with reference to the time fairly required to perform the act of taking possession, or doing what is equivalent. We must construe the exception to the rule requiring immediate possession, in the spirit of the rule itself."

In Kentucky, where the statute does not require an "immediate "

3 Gilbert v. Decker (1885), 53 Conn. 401, 4 Atl. R. 685 [citing Bartlett v. Williams, 1 Pick. (Mass.) 288; Shumway v. Rutter. 8 Pick. 447, 19 Am. Dec. 340; Kendall v. Samson, 12 Vt. 515; Blake v. Graves, 18 Iowa, 312; Cruikshank v. Cogswell, 26 Ill. 366; Clute v. Steele, 6 Nev. 335; Berry v. Ensell, 2 Gratt. (Va.) 333; Sydnor v. Gee, 4 Leigh (Va.), 535; Coty v. Barnes, 20 Vt. 78; Wilson v. Leslie, 20 Ohio, 161; Brown v. Webb, 20 Ohio, 389: Frank v. Miner, 50 Ill. 444]; Dolan v. Van Demark, 35 Kan. 304, 10 Pac. R. 848.

A few cases are contra. Watson v. Rodgers, 53 Cal. 401 [this and the other cases in that State are controlled by peculiar language of the statute]; Carpenter v. Mayer, 5 Watts (Pa.), 483 [but see Hoofsmith v. Cope, 6 Whart. (Pa.) 53, and Smith v. Stern, 17 Pa. St. 360]; Gardinier v. Tubbs, 21 Wend. (N. Y.) 169 [but see Levin v. Russell, 42 N. Y. 251, and Murray v. Riggs, 15 Johns. 571].

$964. "Actual.”—With respect to the character of the change of possession, the statutes referred to require that it shall be both "actual" and "continued," while courts in States in which no statute exists have declared that it must be "actual, visible and continued." The requirement of an "actual" change of possession cannot be made much clearer by the use of words; neither can there be any a priori statement of what shall be sufficient in a given case to constitute an actual change of possession. The change must be actual, open, unequivocal, and of such a character as shall reasonably apprise creditors and purchasers of the change of ownership;1 but there is no arbitrary test of sufficiency. The law necessarily accommodates itself to the nature and description of the

1 In a Colorado case the court said: "The vendee must take the actual possession; and the possession must be open, notorious and unequivocal, such as to apprise the community, or those who are accustomed to deal with the party, that the goods have changed hands and that the title has passed out of the seller and into the purchaser. This must be determined by the vendee's using the usual marks or indicia of ownership, and occupying that relation to the thing sold which owners of property generally sustain to their own property." Sweeney v. Coe, 12 Colo. 485, 21 Pac. R. 705 [citing Cook v. Mann, 6 Colo. 21; Wilcox v. Jackson, 7 Colo. 521, 4 Pac. R. 966; Bassinger v. Spangler, 9 Colo. 175, 10 Pac. R. 809]. In a California case (Stevens v. Irwin, 15 Cal. 503, 76 Am. Dec. 500), the court said: “The delivery must be made of the property; the vendee must take actual possession; that possession must be open and unequivocal, carrying with it the usual marks and indications of ownership by the vendee. It must be such as to give evidence to the world of the claims of the new

owner. He must, in other words, be in the usual relation to the property which owners of goods occupy to their property." To this effect are all of the cases. Chenery v. Palmer, 6 Cal. 119, 65 Am. Dec. 493; Corgan v. Frew, 39 Ill. 31, 89 Am. Dec. 286; Jarvis v. Davis, 14 B. Mon. (Ky.) 424, 61 Am. Dec. 166; Peabody v. Carrol, 9 Mart. (La.) 295, 13 Am. Dec. 305; Ludwig v. Fuller, 17 Me. 162, 35 Am. Dec. 245; Call v. Gray, 37 N. H. 428, 75 Am. Dec. 141; Born v. Shaw, 29 Pa. St. 288, 72 Am. Dec. 633; Brawn v. Keller, 43 Pa. St. 104, 82 Am. Dec. 554; Sleeper v. Pollard, 28 Vt. 709, 67 Am. Dec. 741; Wheeler v. Selden, 63 Vt. 429, 21 Atl. R. 615, 12 L. R. A. 600; Stephens v. Gifford, 137 Pa. St. 219, 20 Atl. R. 542, 21 Am. St. R. 868; Renninger v. Spatz, 128 Pa. St. 524, 18 Atl. R. 405, 15 Am. St. R. 692; Etchepare v. Aguirre, 91 Cal. 288, 27 Pac. R. 668, 25 Am. St. R. 180; Stewart v. Nelson, 79 Mo. 524; Wright v. McCormick, 67 Mo. 426.

The mere presence of witnesses is not enough. Cutting v. Jackson, 56 N. H. 253; Wolf v. Kahn, 62 Miss. 814.

property, the situation of the parties and the circumstances of the case. Many kinds of property admit of an actual, physical change of location at the time of the sale, but other kinds or other circumstances may admit of a symbolical delivery only, or of a change of control merely, while the physical location continues unchanged. The difficulty therefore remains

that while, in the abstract, the rule is certain, its application to the infinitely various combinations of species, location and