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Policy as a Reason.— The second group comprises those decisions which hold that, where the seller has retained possession, the first sale will be ineffective against subsequent purchasers and attaching creditors, quite regardless of whether the first transaction was tainted with fraud or not. The results in this group of cases are essentially similar, but the different theories upon which these results are reached subdivide the group into four classes.

One class puts the result on the theory that as between immediate parties title will pass without any change of possession, but that delivery of possession is necessary to pass the title as against subsequent purchasers and creditors who take possession. The vague meaning given to "title" in such statements speaks for itself. But the result is clear; the first buyer, unless he takes possession, loses his rights in respect to the goods as against the subsequent bona fide takers, quite regardless of any real fraudulent purpose in the first sale or in the retention of possession. 81

A second sub-group puts the loss of the first buyer's rights upon the ground of “public policy.” They recognize that, as between the parties, title may have passed without delivery of possession.SBut, frankly disregardful of the question of fraudulent intent, they set the first buyer's title aside in favor of the subsequent purchasers and creditors as a matter of sound policy. This theory is, however, so often undistinguished from that of the third group as to make actual separation of the decisions impossible.

discussing the original author quent purchasers or attaching ities; Higgins v. Spahr, 145 Ind. creditors, that there should be a 167.

delivery of the property”-the 31-Lanfear y. Sumner, 17 Mass. question of fraud or good faith 110; Dempsey V. Gardner, 127 was not allowed to go to the jury. Mass. 381, "by the law as estab. 32—Frost v. Woodruff, 54 Ill. lished in this Commonwealth, it 155; Corgan v. Frew, 39 Ill. 31. was necessary, as against subse

The theory of the third class is that fraud in the first transaction is the reason for setting it aside in favor of creditors and later buyers. But in order to carry out a general policy of setting the first transaction aside regardless of the presence or absence of actual fraud, they introduce a fiction, a pure pretense. They hold that the retention of possession is “constructive fraud,” or is “conclusive evidence" of fraud. As a consequence of this pretense, a sale under which possession has not been delivered to the buyer is “fraudulent in law, as to creditors and subsequent purchasers, notwithstanding the sale may have been in good faith and for an adequate consideration."988

But even in these states, where fraud is really immaterial and the retention of possession is the true reason for invalidating the first sale, the rule is not applied absolutely. By the introduction of another fiction the

. courts avoid it in some cases. Where there is in fact no fraud, and the actual delivery of possession is physically impracticable, they are apt to hold that “where an actual delivery by taking or removing the property is impracticable, a symbolic delivery will answer."84 But these courts will not apply this doctrine of constructive delivery merely because there was in fact no fraud; there must have been some real impracticability in the way of actual delivery.86

33-O'Leary v. Bradford, 39 Ill. Ap. 182, dictum; Corgan v. Frew, 39 Ill. 31; Huschle v. Morris, 131 III. 587, even though retention of possession was specifically provided for in the bill of sale; Bass v. Pease, 79 Ill. Ap. 308.

Gardiner V. McDonough, 147 Cal. 313, inextricably confused with the doctrine of implied authority to resell; Daniel v. Mor. rison's Exr. 6 Dana (Ky.) 182; Stephens v. Gifford, 137 Pa. 219.

Hamilton v. Russell, 1 Cranch 309, fixing the rule for the Federal Courts.

In some states the rule is fixed

by statute, Brooklyn Cooperage Co. v. Cora etc. Co., 137 La. 807; Bass V. Abeles, 143 Mo. Ap. 274, 126 S. W. 1002; Rankin v. Schultz, 141 Ia. 681, 118 N. W. 383.

34—Lewis v. Swift, 54 Ill. 436; Ticknor v. McClelland, 84 Ill. 471; Thompson v. Wilhite, 81 Ill. 356, constructive delivery of growing corn sufficient; Jewett v. Lincoln, 14 Me. 116, 31 Am. Dec. 36. Hobbs V. Carr, 127 Mass. 532; Western Mining Co. v. Quinn, 40 Mont. 156, 135 Am. St. Rep. 612; Ingalls v. Herrick, 108 Mass. 392; cf., how. ever, Lanfear v. Sumner, 17 Mass. 110.

The fourth sub-class of this group sets the first sale aside regardless of actual fraud, but evidences distinct uncertainty as to just why it is so set aside.

Thus in Connecticut it was decided in Meade v. Smith 36 that title passed irrespective of delivery of possession, not only as between the parties, but as to third persons as well. A retention of possession by the seller, said the court, or a revesting of possession in him after a formal delivery to the buyer, “furnishes, in all cases, presumptive evidence that the sale was fraudulent, open however to explanation." And in this case the court held the explanation quite sufficient to rebut the presumption. But some years later, in Hatstat v. Blakeslee, it appeared that the buyer of a wagon, who had taken actual possession, returned it to the seller to be painted. Creditors of the seller thereafter attached it, and the court held that the buyer's rights were lost, saying, “This rule of law, that the retention of possession of personal property by the vendor is conclusive evidence of a colorable sale, is a rule of policy, required for the prevention of fraud, and is to be inflexibly maintained.'188

Still later, the opinion in Huebler v. Smith 99 combined this conflict into one case. The court quoted with approval the statement in Hatstat v. Blakeslee, and others to the effect that, “That the retention of possession of personal property by the vendor after a sale raises a presumption of fraud which cannot be repelled



35—Thompson v. Wilhite, 81 Ill. 356, transaction admittedly with. out fraud, nevertheless fact that buyer employed seller to feed the hogs sold held no evidence of change of possession; Cobb v. Haskell, 14 Me. 303, 31 Am. Dec. 56.

36–16 Conn. 346. 37-41 Conn. 302.

38-Lucas v. Birdsey, 41 Conn. 357, “The policy of our law for. bids the retention by the vendor of the possession of personal chattels after a sale, and, except as between the parties, makes such retention very strong, if not indeed conclusive evidence of a colorable sale.(dictum.)

39—62 Conn. 186.

by any evidence that the transaction was bona fide and for valuable consideration, is still adhered to and enforced by the courts of this state with undiminished rigor, as a most important rule of public policy. The reason of extending it from a mere rule of evidence, calling it a badge of fraud only, and arbitrarily declaring, as a matter of law, that it renders the sale void as to creditors, notwithstanding the highest evidence as to the honesty of the sale, is because it has been thought better to take away the temptation to practice fraud than to incur the danger arising from the facility with which testimony may be manufactured to show that a sale was honest.” Despite this strong statement, however, the court held that where the sale was a judicial one conducted by an officer of the court and there was really no fraud, the rule did not apply, although the original owner was left by the buyer in continued possession.

Probably the true rule represented by this group of decisions is that stated in Osborne v. Tuller40, that the retention of possession invalidates the buyer's title, regardless of what the jury may think as to good faith, but does not invalidate it if the court is convinced that there was some sound reason for the retention, such as impracticability of actual change. In these cases it is not mere absence of actual fraud which will protect the buyer, but some positive justification for the retention of possession is required. 41

40414 Conn. 529.

41–Gibson v. Love, 4 Fla. 217, the possession indicates fraud unless explained, "as for instance, that the sickness of the slave Henry made his delivery impossible;" Volusia County Bk. v. Bertola, 44 Fla, 734; Gardiner Bk. V. Hodgdon, 14 Me. 453; Coburn v. Pickering, 3 N. H. 415; McDon. ough v. Prescott, 62 N. H. 600; Chamberlain Co. v. Tuttle, 75 N. H 171, 71 Atl. 865; Miller v. Shrey

er, 29 N. J. L. 250, overruling the statement as to the conclusive presumption in Chumar v. Wood, 6 N. J. L. 155; Nelson v. Good, 20 S. C. 223; but cf. Pringle v. Rhame, 10 Rich. L. (S. C.) 72, where actual fraud or not was said to be for jury; Pregnali v. Miller, 21 S. C. 385; Sturdevant v. Ballard, 9 Johns. (N. Y.) 337: Dickman v. Cook, 17 Johns. (N. Y.) 332; Clay. ton v. Anthony, 6 Rand. (Va.) 285; Davis v. Turner, 4 Grat. (Va.) 44–Kane v. Roberts, 40 Md. 42–Hamilton V. Russell, 1

The whole matter is further complicated by the assertion or denial of many courts, no matter in what group their actual decisions belong, that if the retention of possession is provided for specifically by the bill of sale, it is not fraudulent.42

The effect of retention, whatever it be in the different jurisdictions, runs not only in favor of subsequent purchasers, but of attaching creditors as well. It is not even essential that the creditor shall have been actually misled by the seller's retention, for the legal effect of retention relates to prior creditors as well as to those subsequent to the first sale. 48* But one who became a creditor subsequent to the sale, with actual knowledge of the sale, can not have it avoided in his favor. 44

What Constitutes Possession.-In none of these cases is change of position considered as necessary to actual change of possession.45


423, overruling the earlier rule of son V. Anderson, 64 Ala. 403, conclusive presumption; Cl., Curd whether claim is contingent or

Miller, 7 Gratt. (Va.) 185. absolute; Bongard v. Block, 81 III. Poling v. Flanagan, 41 W. Va. 191; 186, id.; Reade v. Livingston, 3 Blocker v. Burners, 2 Ala. 354, dis- Johns. Ch. (N. Y.) 481, 8 Am. Dec. senting opinion; Cocke v. Chap- 520; cf. Seward v. Jackson, 8 Cow. man, 7 Ark. 197; Field v. Simeo, (N. Y.) 406. 7 Ark. 269.

590, constructive notice; Sledge Cranch 309; Holliday v. McKinnie, V. Oberehain, 58 Miss. 670, id.; 22 Fla. 153; Bass v. Pease, 79 III.

Lehmberg v. Biberstein, 51 Tex. Ap. 308; Cf. Huschle v. Morris, 131 457. Ill. 587; Osborne y. Tuller, 14

45—Piner v. Cover, 55 Ill. 391; Conn. 529, explaining that it

Jewett v. Lincoln, 14 Me. 116, 31 means "legally" consistent with

Am. Dec. 36; Bass v. Pease, 79 the deed.

III. Ap. 308; Cf., as to what con43–Gibson v. Love, 4 Fla. 217,

stitutes change of possession, surety on seller's bond protected;

Dooley v. Pease, 180 U. S. 126; Johnson v. Holloway, 82 Ill. 334,

Stephens v. Gifford, 137 Pa. 219. prior creditors; Fleming v. Town

Delivery to carrier, consigned send, 6 Ga. 103, subsequent credi

to buyer, is sufficient, Cary V. tors; Streeper v. Eckart, 2 Whar

Williams, 47 Colo. 256, 107 Pac. 219. ton 302, 30 Am. Dec. 258; Ander

*See Uniform Sales Act, Section 26.

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