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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.

$ 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 a delivery in a reasonable time, regard being had to the situation of the property;


1 California, Civ. Code, $ 3440; 3 In Norton v. Doolittle, 32 Conn. Colorado, Gen. Stats., ch. 43, § 14; 405, the rule is said to be one of polKentucky, Stats. 1894, § 1908; Mis- icy as well as of evidence, and resouri, 1899, § 3410; Nevada, 1885, quires "an actual, visible and con$ 2633; Oklahoma, 1893, § 2663; Utah, tinued change of possession.” In R. S. 1898, S 2473.

Seymour v. O'Keefe, 44 Conn. 128, 2 Arizona, R. S. 1887, § 2034; Indi. the court say it “is firmly established ana, R. S. 1897, § 6945; Kansas, G. S. in this State as a rule of law and 1897, ch. 112, § 3; Michigan, C. L. public policy.” 1897, § 9520; Minnesota, G. S. 1894, 4 See Claflin v. Rosenberg, 42 Mo. $ 4219; New York, R. S. 1896, Part II, 439, 97 Am. Dec. 336; Stewart v. Nelch. 7, title 2, $ 5; Oregon, Ann. L. son, 79 Mo. 522; Mills v. Thompson, 1892, ch. 8, title 7, S 776; Wisconsin, 72 Mo. 367; Burgert v. Borchert, 59 G. S. 1898, § 2310.

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 bad, 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, change of possession, the fact that 483; McMarlan v. English, 74 Pa. St. the property, at the time of the sale, 296.

was in such a condition that a change 2 The term “immediate" can prob- could not then be made without seably mean nothing more than rea- rious loss, was held to excuse a speedy sonable promptness. See Cass v. change. Kenton v. Ratcliff, — Ky. Perkins, 23 Ill. 382; People's Mut. 49 S. W. R. 14. Acc. Ass'n v. Smith, 126 Pa. St. 317, 3 Gilbert v. Decker (1885), 53 Conn. 17 Atl. R. 605, 12 Am. St. R. 870; Lyon 401, 4 Atl. R. 685 [citing Bartlett v. v. Railway Passenger Assur. Co., 46 Williams, 1 Pick. (Mass.) 288; ShumIowa, 631.

way v. Rutter, 8 Pick. 447, 19 Am. In Seymour v. O'Keefe (1876), 44 Dec. 340; Kendall v. Samson, 12 Vt. Conn. 128, the court say that “the 515; Blake v. Graves, 18 Iowa, 312; rule on this subject should be, and Cruikshank v. Cogswell, 26 II. 366; is, that a purchaser of personal Clute v. Steele, 6 Nev. 335; Berry v. property is bound in every instance Ensell, 2 Gratt. (Va.) 333; Sydnor v. to take immediate possession, if it is Gee, 4 Leigh (Va.), 535; Coty v. Barnes, practicable.' Ingraham v. Wheeler, 20 Vt. 78; Wilson v. Leslie, 20 Ohio, 6 Conn. 277. But what if it is not 161; Brown v. Webb, 20 Ohio, 389: practicable? Then we say he is Frank v. Miner, 50 III. 444]; Dolan v. bound to take possession, or do that Van Demark, 35 Kan. 304, 10 Pac. R. which is equivalent, in a reasonable 848. time. But reasonable time' must A few cases are contra. Watson be construed, not with reference to v. Rodgers, 53 Cal. 401 [this and the the mere convenience of the party, other cases in that State are conbut only with reference to the time trolled by peculiar language of the fairly required to perform the act of statute]; Carpenter V. Mayer, 5 taking possession, or doing what is Watts (Pa.), 483 [but see Hoofsmith equivalent. We must construe the v. Cope, 6 Whart. (Pa.) 53, and Smith exception to the rule requiring im- v. Stern, 17 Pa. St. 360); Gardinier v. mediate possession, in the spirit of Tubbs, 21 Wend. (N. Y.) 169 (but see the rule itself.”

Levin v. Russell, 42 N. Y. 251, and In Kentucky, where the statute Murray v. Riggs, 15 Johns. 571). does not require an "immediate”

$ 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: owner. He must, in other words, be “The vendee must take the actual in the usual relation to the property possession; and the possession must which owners of goods occupy to be open, notorious and unequivocal, their property.” To this effect are such as to apprise the community, all of the cases. Chenery v. Palmer, or those who are accustomed to deal 6 Cal. 119, 65 Am. Dec. 493; Corgan with the party, that the goods have v. Frew, 39 Ill. 31, 89 Am. Dec. 286; changed hands and that the title has Jarvis v. Davis, 14 B. Mon. (Ky.) 424, passed out of the seller and into the 61 Am. Dec. 166; Peabody v. Carrol, purchaser. This must be determined 9 Mart. (La.) 295, 13 Am. Dec. 305; by the vendee's using the usual Ludwig v. Fuller, 17 Me. 162, 35 Am. marks or indicia of ownership, and Dec. 245; Call v. Gray, 37 N. H. 428, occupying that relation to the thing 75 Am. Dec. 141; Born v. Shaw, 29 sold which owners of property gen- Pa. St. 288, 72 Am. Dec. 633; Brawn erally sustain to their own property.” v. Keller, 43 Pa. St. 104, 82 Am. Dec. Sweeney v. Coe, 12 Colo. 485, 21 Pac. 554; Sleeper v. Pollard, 28 Vt. 709, 67 R. 705 (citing Cook v. Mann, 6 Colo. Am. Dec. 741; Wheeler v. Selden, 63 21; Wilcox v. Jackson, 7 Colo. 521, 4 Vt. 429, 21 Atl. R. 615, 12 L R A. Pac. R. 966; Bassinger v. Spangler, 9 600; Stephens v. Gifford, 137 Pa. St. Colo. 175, 10 Pac. R. 809]. In a Cali. 219, 20 Atl. R. 542, 21 Am. St. R. 868; fornia case (Stevens v. Irwin, 15 Cal. Renninger v. Spatz, 128 Pa. St. 524, 503, 76 Am. Dec. 500), the court said: 18 Atl. R. 405, 15 Am. St. R. 692; “The delivery must be made of the Etchepare v. Aguirre, 91 Cal. 288, 27 property; the vendee must take act- Pac. R. 668, 25 Am. St. R. 180; Stewual possession; that possession must art v. Nelson, 79 Mo. 524; Wright v. be open and unequivocal, carrying McCormick, 67 Mo. 426. with it the usual marks and indica. The mere presence of witnesses is tions of ownership by the vendee. not enough. Cutting v. Jackson, 56 It must be such as to give evidence N. H. 253; Wolf v. Kahn, 62 Miss. 814. to the world of the claims of the new


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


1 Tunell v. Larson, 39 Minn. 269, 39 cate to all concerned the fact of the N. W. R. 628; Lathrop v. Clayton, 45 change of ownership." Minn. 124, 47 N. W. R. 544 [citing Ponderous goods.—“Where the Boynton v. Veazie, 24 Me. 286; Bethel goods are ponderous actual delivery Steam Mill Co. v. Brown, 57 Me. 9, is not required; a constructive de99 Am. Dec. 752; McKibbin v. Martin, livery may be implied from various 64 Pa. St. 352, 3 Am. R. 588; Kings- acts, among which are designating ley v. White, 57 Vt. 565; Webster v. them for the use of the purchaser by Anderson, 42 Mich. 554, 4 N. W. R. marking, or removing them for the 238, 36 Am. R. 452; Manton v. Moore, purpose of being delivered.” Hall v. 7 T. R. 67).

Richardson, 16 Md. 396, 77 Am. Dec. 2 Constructive delivery.- In Mc- 303 (citing Clary v. Frayer, 8 Gill & J. Kibbin v. Martin, 64 Pa. St. 352, 3 398; Van Brunt v. Pike, 4 Gill, 270, Am. R. 588, Sharswood, J., said: “But 45 Am. Dec. 126; Atwell v. Miller, 6 it often happens that the subject of Md. 10, 61 Am. Dec. 294; Hodgson v. the sale is not reasonably capable of Le Bret, 1 Camp. 233); White v. Moan actual delivery, and then a con- Cracken (1895), 60 Ark. 613, 31 S. W. structive delivery will be sufficient. R. 882. As in the case of a vessel at sea, of In Kingsley v. White (1885), 57 Vt. goods in a warehouse, of a kiln of 565, it is said that the “controlling bricks, of a pile of squared timber elements, which take such property in the woods, of goods in the posses- out of the operation of the ordinary sion of a factor or bailee, of a raft of rule requiring a change of possession lumber, of articles in the process of to perfect the sale of the property manufacture, where it be not indeed from attachment by the creditors of impossible, but injurious and un- the vendor are the character and usual, to remove the property from situation of the property; that is, where it happens to be at the time that the property is ponderous, inof the transfer. Clow v. Woods. 5 capable of personal possession, and Serg. & R. (Pa.) 275, 9 Am. Dec. 346; difficult of removal. To hold that Cadbury v. Nolen, 5 Pa. St. 320; Lin- such property comes within the oper. ton v. Butz, 7 Pa. St. 89, 47 Am. Dec. ation of the ordinary rule would 501; Haynes v. Hunsicker, 26 Pa. St. practically preclude any sale of it 58; Chase v. Ralston, 30 Pa. St. 539; which would be valid against attachBarr v. Reitz, 53 Pa. St. 256; Benford ment by the creditors of the vendor." v. Schell, 55 Pa. St. 393. In such It was there held that a sale of saw cases it is only necessary that the logs piled on land so low and wet vendee should assume the control of that it was impossible to remove the subject so as reasonably to indi. them without a cost exceeding their

that while, in the abstract, the rule is certain, its application to the infinitely various combinations of species, location and value was valid without any actual Bancroft, 10 Metc. 236.

If he change of possession; citing Sanborn is notified of the transfer he will v. Kittredge, 20 Vt. 632, 50 Am. Dec. cease to hold as the agent of the 58; Hutchins v. Gilchrist, 23 Vt. 82; vendor, and if he still retains possesBirge v. Edgerton, 28 Vt. 291; Fitch sion he will become the agent of the v. Burk, 38 Vt. 683; Sterling v. Bald- vendee by operation of law. Hodges win, 42 Vt. 306; Ross v. Draper, 55 v. Hurd, 47 Ill. 363.” Buhl Iron Works Vt. 404, 45 Am. R. 624. “No such de v. Teuton (1888), 67 Mich. 623, 35 N. W. livery and actual and continued R. 804. change of possession of such bulky Issue and delivery of warehouse property could be expected or in- receipt for wheat in seller's public sisted upon. Yet there should be, warehouse is sufficient (Broadwell v. even of bulky articles, such a clear Howard (1875), 77 Ill. 305); and goods and unequivocal designation thereof in possession of carrier may be transthat creditors or subsequent pur- ferred by delivery of the bill of ladchasers could not be misled or be in ing or receipt. Green Bay National doubt as to the nature of the trans- Bank v. Dearborn (1874), 115 Mass. action.” Anderson V. Brenneman 219. (1880), 44 Mich. 198.

But in Hallgarten v.Oldham (1883), Part delivered as token of all.- 135 Mass. 1, 46 Am. R. 433, it is said There may be a delivery of part as that the delivery required is a “ detoken of the whole. Hobbs v. Carr livery in its natural sense, that is, a (1879), 127 Mass. 532; Ingalls v. Her- change of possession; " and Green rick (1871), 108 Mass. 351, 11 Am. R. Bay National Bank v. Dearborn, 360; Legg v. Willard, 17 Pick. (Mass.) supra, is questioned. See also Demp140; Shurtleff v. Willard (1837), 19 sey v. Gardner (1879), 127 Mass. 381; Pick. 202.

Dugan v. Nichols (1876), 125 Mass. 43. No symbolical delivery where Goods in hands of servant. - The actual delivery possible.- A sym- rule as to bailees would not ordibolical or constructive delivery will narily apply to servants or others not suffice where an actual one is whose possession is merely that of the reasonably practicable. Billingsley owner. Bump, Fraud. Conv. (4th ed.), v. White, 59 Pa. St. 464; McKibben S 157. v. Martin, 64 Pa. St. 352, 3 Am. R. Goods already in vendee's posses. 588; Steelwagon v. Jeffries, 44 Pa. St. sion.- Where the goods are already 407.

in the possession of the vendee, it is Goods in hands of bailee.—Where not necessary to go through the idle the property is in the possession of a ceremony of restoring them to the bailee, he “must at least be notified seller that he may then deliver them of the sale and he must thereafter again to the vendee. Nichols v. Pathold it for the vendee or mortgagee. ten (1841), 18 Me. 231, 36 Am. Dec. 713; Wheeler v. Nichols, 32 Me. 233; Bent Lake v. Morris (1861), 30 Conn. 201. all v. Burn, 3 B. & C. 423; Cushing v. Delivery to common carrier for Breed, 14 Allen, 376; Boardman v. transportation to buyer.- An unSpooner, 13 Allen, 353; Appleton v. conditional delivery of the goods

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