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with the deed or not; because they pass like real estate by title, and possession is no ground from which to infer ownership. So, unless fixtures are severed, [* 115 ] they are not within the order and disposition of a person within the meaning of the Bankruptcy Act (8).

Where such a possession as the nature of the case If such posadmits has been given and taken at the time of the session as transfer, that is sufficient (t).

was possible was given it is enough. For instance, "if a bond is assigned the bond must Bonds require be delivered, and notice must be given to the debtor; delivery. but in assignments of book debts notice alone is sufficient, because there can be no delivery; and such acts are equal to a delivery of goods which are capable of delivery" (u).

As to this difference between real and personal property, it was said in Ryall v. Rolle (v), "Possession can be no otherwise a badge of fraud than as it is calcu

Book debts

not.

realty differ

lated to deceive creditors. As to the possession of Possession of goods, I have no other way of coming to the knowledge ent from of the owner but by seeing who is in possession of possession of them; but the possession of land is of a different na- personalty. ture, for a man may be in possession of lands as a tenant at will, as a mortgagor is to the mortgagee, before the condition broken. A purchaser may call for the title deeds, and need not be deceived unless he will; but this is not the case of goods where they are left in the possession of the seller."

fraudulent.

But though with respect to land the question whether When want of actual and visible possession is or is not taken is in possession of general of no great importance, yet where there is such land may be a continuance in possession as to prevent any substantial change of ownership the case is different. In Russell v. Hammond (w), Lord Hardwicke said it was a plain badge of fraud that the settlor took back an annuity to himself and his wife for life of £27, which was

(s) Ex parte Barclay, 5 De G. M. & G. 403; Holland v. Hodgson L. R. 7 C. P. 328; and see Robson, Bkey. 5th ed. 532.

(1) Atkinson v. Maling, 2 T. R. 462; Manton v. Moore, 7 T. R. 71; Gough v. Everard, 2 H. & C. 1, 8; Mair v. Glennie, 4 M. & S. 240; post, pp. 123, 124.

(u) Per Lord Macclesfield (then Sir Thomas Parker) in Ryall v. Rolle, 1 Atk. 177, S. C. Ryall v. Rowles, 1 Ves. 367.

(v) 1 Atk. 165, 168, S. C. 1 Ves. 348, 360; and see per Lord Mansfield in Worsley v. Demattos, 1 Burr. 477, 483.

(w) 1 Atk. 13, 16; post, pp. 122 et seq.

Mere fact of possession of

probably the full value of the estate comprised in the deed, and the father gave the son nothing; which is almost tantamount to a continuance in possession, and has always been deemed a strong circumstance of fraud. [116] *In general, the mere fact that the vendor or donor has, after a sale or gift, retained possession of the land, does not of itself raise even a prima facie premortgage no sumption of fraud. For that possession may properly be in one person and the legal title in another person. It is to the possession of the title deeds of real estate that creditors ought to look (x).

real estate after sale or

evidence of

fraud.

Is transfer of

Where virtual and substantial possession of land is retained by retaining the title deeds, much the same rules are applicable as to sales of personalty (y).

The second leading distinction in the consideration personal pro- of this question is whether the sale or gift of the personal property is absolute or conditional (z).

perty absolute or conditional? Is mere fact of absolute transfer

With regard to an absolute sale or gift of personal property there has been a considerable conflict of authority as to whether the mere fact of retention of primâ facie possession by the vendor or donor of itself afforded conclusive or merely prima facie presumptive evidence of fraud.

evidence of fraud?

Ryall v. Rolle (a), though a case on the 21 Jac. 1, c. 19, was argued on the general question of possession. It was there said, in relation to the condition of creditors where the debtor continues in possession of the goods mortgaged, that the statute governing this matter was 13 Eliz. c. 5, in which there was no distinction whether the sale be absolute or conditional, provided it was fraudulent. Courts of equity and juries were to consider, upon the whole evidence, whether the conveyance was made with a view to defraud or not; conveyances for value were good, "unless the circumstances have the appearance of a design to deceive creditors; but where the goods have been left with the vendor so notoriously as that there could be no design

(x) Ante, pp. 113, 114. The same is the rule in America: see Bump. Fr. Conv. (Amer.), 2nd ed. 122, 177.

(y) See Doe v. Ball, 11 M. & W. 531; and see Perry-Herrick v. Attwood, 2 De G. & J. 21; Clarke v. Palmer, 21 Ch. D. 124; post, p. 197.

(z) Post, p. 122.

(a) 1 Atk. 165, 167-8, S. C. Ryall v. Rowles, 1 Ves. 348, 360.

to defraud, this has never been looked upon as fraudulent." With regard to Twyne's Case (a), it was said that "it is hard to assign a reason why a buyer should leave goods in the hands of the seller unless *to [* 117] give him a false appearance of circumstances and credit," but that "possession can be no otherwise a badge of fraud than as it is calculated to deceive creditors."

In Bucknal v. Roiston (b) Lord Cowper made no distinction between absolute and conditional sales, but decided on the fairness of the transaction, saying that there was no possession calculated to acquire a false credit. This shewed that a possession so calculated as to acquire a false credit would have made the transaction void, and that this must mean such possession as would give false credit, so that all that is laid down there is that a possession to acquire a false credit would make such a transaction void, otherwise not.

This doctrine was closely followed by Lord Mansfield in Worsley v. Demattos (c), who there pointed out that the not taking possession, since it was only evidence of fraud, might be explained.

evidence of

In some of the older cases it has been held that the Want of poswant of possession alone is of itself a conclusive proof session conof fraud (d), that is to say, where it is enough to shew clusive that the transfer was not a real sale or gift at all, but a fraud only mere contrivance, whereby no property was intended to when it pass, but which should be brought forward when con- proves the venient in order to protect the goods from the claims of unreality of creditors. It was chiefly on this ground that the sale in Twyne's Case (a) was held void for there "the donor continued in possession and used the goods as his own, and traded and trafficked with others and defrauded and deceived them" (ƒ).

the transfer.

The old rule seemed to be that where there was an Old rule as to absolute conveyance and the grantor remained in pos- possession session in such a way as to be able to use the goods as

after transfer being evidence of fraud.

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(d) Stone v. Grubham, 2 Buls. 226.

(f) Per Sir W. Fortescue, in Taylor v. Jones, 2 Atk. 600; and see Ryall v. Rowles, 1 Ves. at p. 360; and see Ex parte Games, 12 Ch. D. 322.

But where

more

his own, it was always void against creditors, even though made on valuable consideration (g). In such a case to remain in possession was either inconsistent with the deed and therefore fraudulent, or, if in accord[118] ance with the terms of the deed, was none the more valid, for it proved, or was taken to prove, the unreality of the transfer, and that it was intended to be really for the grantor's benefit at the expense of his creditors (h). But the possession of an assignor is not fraudulent when he is tenant in common with the purchaser, because the possession of one tenant in common is the possession of all (i).

Want of absolute possession will make a bill of sale it is attempt- fraudulent if the ulterior object is to convey more proped to screen erty than would satisfy the debt to secure which it was given, in order to screen it from other creditors (k); but whether or not this was the object is a question for a jury, especially where the value of the property was a question for fluctuating one. jury.

property than necessary, it is

In all cases where there is a lease, bill of sale, or other assignment, without any change of possession, the question is, whether it was a bonâ fide transaction or a trick and contrivance; and the payment of the consideration money and other circumstances must be free from doubt (1), for any circumstances of fraud coupled with the transferor's remaining in possession will upset a transaction (m).

It by no means follows, though, that because there is

(g) Bucknal v. Roiston, Prec. Ch. 287; Edwards v. Harben, 2 T. R. 587; Twyne's Case, 3 Rep. 80 b; Paget v. Perchard, 1 Esp. 205. (h) The idea that a secret benefit was intended for the grantor in contradiction of the apparent grant, is the leading principle on which these conveyances are void. The earlier statute, 3 Hen. 7, c. 4, enacted that "all deeds of gift of goods and chattels made or to be made of trust to the use of that person or persons that made the same deed of gift be void, and of none effect;" and see the fifth badge of fraud in Twyne's Case, 3 Co. 81 a; and the resolution (ibid.) that no gift shall be considered bonâ fide which is accompanied with any trust; and so "the want of delivery is evidence only that the transfer was colourable": Martindale v. Booth, 3 B. & Ad. 498, 505; Lindon v. Sharp, 6 Man. & G. 895, 898.

(i) Re Matthews, 1 Atk. 185.

(k) Benton v. Thornhill, 2 Mars. 427.

And it will be seen that

this was also the case in Edwards v. Harben, 2 T. R. 587, post,

p. 119; Biddulph v. Goold, 11 W. R. 882.

(1) Reed v. Blades, 5 Taunt. 212; Ex parte Games, 12 Ch. D. 314. (m) Graham v. Furber, 14 C. B. 410.

no possession given therefore a transfer is fraudulent; But no posfor those cases where the judges have said that if pos- session is not session was not given it was fraudulent (n) must be always taken with reference to the circumstances of each case.

The question of possession is one of much importance, but that is with a view to ascertain the [* 119] good or bad faith of the transaction (0).

fraudulent.

In Arundell v. Phipps (p) Lord Eldon said that the Lord Eldon: mere circumstance of the possession of chattels, how- want of posever familiar it might be to say that it proves fraud, session only amounts to no more than that it is prima facie evidence evidence of prima facie of property in the man possessing, until a title not fraud, and all fraudulent is shewn under which that possession has the circumfollowed; that every case, from Twyne's Case (q) down- stances must wards, supports that, and there was no occasion otherwise for the statute of King James (r).

There is no sufficient authority for saying that the want of delivery of possession makes void a bill of sale of goods and chattels; it is primâ facie evidence of a fraudulent intention, and, if it be a badge of fraud only, in order to ascertain whether a deed be fraudulent or not, all the circumstances must be taken into consideration (s).

be consider

ed.

Edwards v. Harben, (t) is an early case on the sub- Edwards v. ject, the facts of which sufficiently appear from the Harben. judgment. The Court of King's Bench held the bill of sale to the defendant fraudulent and void against the plaintiff, another creditor.

Buller, J., said the bill of sale was a general bill of Absolute bill sale of all the defendant's household furniture and stock- of sale.

(n) Edwards v. Harben, 2 T. R. 587; Wordall v. Smith, 1 Camp. 332; Macdona v. Swiney, 8 Ir. C. L. R. 86.

(0) Abbott, C.J., in Latimer v. Batson, 4 B. & C. 652; and see Arundell v. Phipps, 10 Ves. 139; Kidd v. Rawlinson, 2 B. & P. 59; Hoffman v. Pitt, 5 Esp. 22, 25; Eastwood v. Brown, Ry. & Mood. 312.

(p) 10 Ves. 139, 145.

(q) 3 Rep. 80 b; see the remarks of Littledale, J., in Martindale v. Booth, 3 B. & Ad. 498, 505.

(r) 21 Jac. 1, c. 19, ss. 10, 11, which originated the law with respect to property remaining in the reputed ownership or order and disposition of a bankrupt.

(s) Per Patteson, J., in Martindale v. Booth, 3 B. & Ad. 498, 507; post, pp. 150 et seq.

(t) 2 T. R. 587.

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