19 Wend. 444 | N.Y. Sup. Ct. | 1838
By the Court,
The point raised by the plaintiff’s counsel, that the defendant did not prove he had paid value for the boat, was not taken on the trial. On the motion for a nonsuit, it was assumed by the judge and by the counsel for both parties that the defendant was a bona fide purchaser; and the only question was whether the plaintiff’s mortgage was fraudulent. The party cannot now make an objection, which, if taken at the proper time, might have been answered.
That continued possession in the mortgagor rendered the conveyance void as against creditors and subsequent bona fide purchasers, is a settled question in this court.
But it is said that the question of fraud belonged to the jury. 2 R. S. 187, § 4. Although that section was not noticed in the opinions which I delivered in Doane v. Eddy, 16 Wendell, 523, and Randall v. Cook, 17 id. 53, it was not overlooked. It was not mentioned for the simple reason that I thought it had nothing to do with the question. Let us now see what it is. “ The question of fraudulent intent, in all cases arising under the provisions of this chap ter, shall be deemed a question of fact and not of law.” In the cases to which the section relates, there can be no doubt that the question of fraudulent intent belongs to the jury. By referring to the first section of title 1, and the first section of title 3, it will be seen that the provisions
The fifth section of title 2 declares, in substance, that as against creditors and purchasers, every sale and conveyance of goods, without a change of possession, “ shall be presumed to be fraudulent and void.” The only question of fact here is about the possession. The provision is not, that a conveyance of goods made with a fraudulent intent shall be void ; but that a conveyance of goods without a change of possession, shall be void. Is the fraud in such cases a question of fact ? Let the statute answer. The transaction “ shall be presumed to be fraudulent and void.” This is the language of the law, and except under special circumstances, a jury has nothing to do with the question.
To my mind it is quite clear, that the legislature did not intend on one page of the statute book to declare, as matter of law, that a particular transaction should be presumed fraudulent; and then on the next page to say, that the fraud should be a question of fact and not of law. There is no necessity for giving a construction to the statute which will involve such a contradiction. Let the fourth section perform only its appropriate office, and all will be harmonious. Every conveyance of lands, &c. made with the intent to defraud purchasers, § 1, tit. 1, and every conveyance of lands, goods, &c. made with the intent to hinder, delay or defraud creditors, § 1, tit. 3, shall be void. To these provisions the fourth section applies, and declares that the fraudulent intent shall be a question of fact. But a sale of goods is not only void when made with a fraudulent intent, § 1, tit. 3, but it is void when the possession is not changed. § 5, tit. 2,
The fifth section is an entirely new provision which has been superadded to the old law, and we are not at liberty to adopt such a construction as will render it nugatory.
There was nothing to leave to the jury. This was but the common case of taking a conveyance of personal chattels, and leaving the vendor in possession to gain credit by
New trial denied.
