pawnor, succeeds to all his rights, and becomes entitled to redeem.' To this last position are cited Kemp v. Westbrook, 1 Vesey, 278, N. Y. revised statutes, vol. ii. 366, s. 20. And see Mass. Stat. 1830, chap. 124, in which statute it is provided that personal property mortgaged, pledged, or subject to any lien, and not exempt by law from attachment, may be attached or taken in execution as the property of the mortgager, pledger, or general owner, at any time before the property becomes absolute in the mortgagee, pledgee or holder, on paying or tendering the amount due such mortgagee, pledgee or holder.

What possession of personal chattels must be taken, and maintained by the vendee or mortgagee, to complete and ensure his title, as against the creditors of the vender, or mortgager, and other subsequent purchasers, is a question which has been presented in a great variety of cases, and will probably be a very interesting and important one in a great many cases hereafter to arise. We shall present a view of some of the most important decisions on this subject.

And first, as to delivery, or taking possession.

Lanfear v. Sumner, 17. Mass. Rep. 110, was the case of an assignment of teas by Waln to the plaintiff. The assignment was made in Philadelphia on the 2d of July, about two o'clock. The teas were supposed by the parties to the assignment, to have been at sea at the date of the transaction. They were in fact at Boston, and were, about four hours after the assignment was made, attached by creditors of Waln. The attachment title prevailed on the ground that no possession had been taken under the assignment. The attaching creditor is treated in this case as a subsequent purchaser, for valuable consideration, without notice of the first conveyance, and having acquired the first possession as having the better right to the property. The principle therefore upon which the cause was decided was the same which was recognised in the case of Lamb et al. v. Durant, 12 Mass. Rep. 54, and in Caldwell et al. v. Ball, 1 D. and E. 205, viz. 'When the same goods are sold to two different persons by conveyances equally valid, he who first lawfully acquires the possession, will hold them against the other.' The authority of Lanfear v. Sumner may be considered as questioned in the case of Ingraham et al. v. Wheeler, 6 Connecticut Rep. 277. It appears, however, that the court, in this last case, did not

rightly understand the case of Lanfear v. Sumner, as they state the facts of that case very differently from what they were.

Second. As to maintaining possession.

Brooks v. Powers, 15 Mass. Rep. 244, was a case of replevin, for a pair of oxen and other cattle, which had been attached by the defendant, as an officer, on an original writ against one Stephen Witt. Witt, during the years 1816 and 1817, lived on a farm owned by the plaintiff, who had leased the same to Witt for those years, making a distinct lease for each year, commencing on the 1st of April. A few days before the attachment by the defendant, viz. on the 14th of April, 1817, Witt gave to the plaintiff a bill of sale of the cattle, and made a delivery of them on the farm, in payment of a part of the rent for the preceding year, and of the whole of the year then ensuing, except the sum of three dollars, for which Witt gave his note to the plaintiff. Brooks, the plaintiff, then agreed that Witt should have the oxen to carry on the work of the farm that year, for which he was to keep them free of expense to the plaintiff. And it was further agreed that the plaintiff might work the oxen when Witt had no occasion to work them on the farm himself. It was further agreed that Witt should pasture the other cattle for the plaintiff, for which he was to pay the customary price. The cattle were in the possession of Witt, after the sale, in pursuance of said agreement, until they were attached by the defendant. Upon this state of the case, the judge, at the trial, instructed the jury that Witt's retaining possession of the cattle was not conclusive evidence of fraud, so as to avoid the sale as to creditors; but was one of the circumstances which was proper to be submitted to the jury, as tending to prove the sale fraudulent as to such creditors; and that if, upon considering the whole evidence, they should believe the sale to have been bona fide and for a good consideration, and not made with a view to defraud creditors, their verdict should be for the plaintiff. A verdict being returned for the plaintiff, exceptions were filed to the opinion of the judge, and the case was fully argued to the whole court, by the defendant's counsel. The opinion of the court was as follows:

'It has been contended, in this case, that the possession of the vender of personal chattels, after the sale, is conclusive evidence in favor of creditors, that the sale was fraudulent; or

rather that it is itself a fraud. But we are all of opinion that, although it is generally evidence of the strongest kind, it is not conclusive. The vendee may, notwithstanding, upon proof that the sale was bona fide, and for a valuable consideration, and that the possession of the vender, after such sale, was in pursuance of some agreement not inconsistent with honesty in the transaction, hold under his purchase against creditors. And so it has been often decided in this court, as well as in England.'

Wheeler v. Train, 3 Pick. 255, was the case of a sale of furniture by John Wheeler to the plaintiff. Possession was given by delivery of one chair as and for a delivery of the whole. A lease was then made to the vender for one year, at a rent agreed upon, and the vender remained in possession. A creditor of the vender attached the furniture. The sale was held valid upon proof that the same was upon a valuable and adequate consideration, and that the transaction was open and bona fide. Judge Wilde, in delivering the opinion of the court, says, 'The possession of the vender, after the sale, is not a conclusive badge of fraud. It may be so when unexplained, but it is always open to proper explanations. It is evidence of fraud, and not fraud per se, and so it has always been considered in this court. We think also that the explanation in this case is satisfactory. As a debtor may mortgage his property to his creditor, and retain possession until condition broken, if such is the agreement, we can perceive no good reason why he may not stipulate for a given time, when the sale in other respects is absolute, provided there is no fraud or concealment.'

Shumway et al. v. Rutter, 7 Pick. 56, was a case of trover for articles of furniture. J. Shumway had kept an inn in S., and the furniture in question having been there attached as his property, was appraised by the officer who served the writ, and a bill of sale was then made by J. Shumway to the plaintiffs, who paid the amount of its appraised value, and discharged the suit. The plaintiffs then took a lease from the owner of the estate where the furniture was, and as the case stood on the first trial, took no further possession. After this transaction J. Shumway removed to another house, taking with him the furniture, and using it as his own. The defendant, acting as an officer, attached the furniture as the property of J. Shumway, in the house to which it had been removed. The case was put

to the jury on the question whether the transaction in S. was bona fide, the other points being reserved for the opinion of the court. The jury found for the plaintiffs." The court say, a new trial is granted, because there was no every of the furniture, at or after the sale, to the plaintiffs, nor any subsequent possession by them. The whole transaction rested in paper, or in verbal communication. . . By the bill of sale the

property was transferred between the vender and the vendees; but not against creditors who should attach before possession was taken.'

The lease of the house to the plaintiffs, if possession had been taken under it, would have given possession of the furniture; but no entry was made under the lease. . . . . . There was no contract between the plaintiffs and the debtor shewing a right under the plaintiffs in the debtor to use the furniture. We think notwithstanding the sale was bona fide in regard to the consideration, there are many circumstances indicative of fraud against creditors.' On a new trial of this case of Shumway et al. v. Rutter, it was proved that after the purchase of the furniture, and before the attachment was made by Rutter, one of the plaintiffs went and lived for a time in the house where the furniture was, spoke of having paid for the furniture, and used it in common with the rest of the inmates of the house. And this was held to be a sufficient taking of possession. In delivering the opinion of the court Ch. J. Parker says, the transfer being bona fide, and for a valuable consideration slight evidence of a delivery would be sufficient; as is proved by the principle adopted of a symbolical delivery; and whether there is a formal delivery or not, if the vendee obtains possession by consent of the vender, before any attachment or second sale, the transfer is complete.' 8. Pick. 447.

It is obvious that in the cases of Brooks v. Powers, Wheeler v. Train, and Shumway et al. v. Rutter, the S. J. Court in Massachusetts have directly and fully met the question, and decided, that possession remaining in the vender, after an absolute sale, is not, as it regards creditors, fraud per se avoiding the conveyance; that it is an equivocal fact which admits of explanation; and that the sale, if for a valuable and adequate consideration, and bona fide, will be sustained, if there has been a delivery, actual or constructive, though possession should be continued in the vender.

Opposed to these decisions are the cases of Edwards v. Harben, 2 T. R. 587, Hamilton v. Russell, 1 Cranch, 309, Sturtevant v. Ballard, 9 John. 30, and Coburn v. Pickering 3 N. H. Rep.

415.

337

As to the first of these cases, viz. Edwards v. Harben, which may be considered as the leading one, for the others appear to have been decided relying very much, if not mainly on this, it must be said, that it has never given entire satisfaction in England, and so many exceptions were found to the rule, that Ch. J. Kent, in Sturtevant v. Ballard, found it not a little difficult to enumerate them. Add to this that in Stewart v. Lombe et al. 1 Brod. and Bingh. 506, it is expressly said by Ch. J. Dallas, and Mr. J. Park, that its authority has been often doubted.

The case of Hamilton v. Russell was decided almost entirely, if not wholly, on the authority of Edwards v. Harben.

Sturtevant v. Ballard evidently gave occasion to much research in the examination of the decided cases in England, and in this country. Its authority however has been more than shaken by the case of Bissell v. Hopkins, 3 Cowen, 166. In this last case Ch. J. Savage, in commenting on the opinion of the court in Sturtevant v. Ballard says, 'that the learned Judge (Kent) no doubt intended to say here, as in Burrow v. Paxton, (5 John 261,) that possession continued in the vender is only prima facie evidence of fraud, and may be explained. The question in every case is, whether the act done is a bona fide transaction, or whether it is a trick and contrivance to defeat creditors.' the case of Brooks v. Powers is stated and approved. The case of Coburn v. Pickering must stand or fall with the other decided cases on the same side of the question.

And

Cases often arise in which an actual delivery is impossible, such as the sale of a ship at sea. In this case, all that can be done, and all that the law requires, is the execution and delivery of the bill of sale, and diligence in taking possession after the ship arrives. Goods at sea should be conveyed by an assignment of the bill of lading, in cases where a bill of lading can be had. Gardner v. Howland, and Bates, trus., 2 Pick. 599, is not only an authority to this point, but is an important case as to the sale, assignment, and delivery of chattels, not only when at sea, but on shore. In this case the defendant and plaintiff were owners of the brig Chatsworth and cargo, which sailed from Baltimore to South America under the command of Bates, as master, with