11 Neb. 118 | Neb. | 1881
This is an action to recover from the defendant, who was assignee in bankruptcy of the property belonging to the firm of Densmore and Hopper, the value of certain property taken by him as assignee. In the year 1876 the plaintiff was a resident of the state of Illinois, and the firm of Densmore and Hopper was doing busi
It will thus be seen that the principal facts in the case are very similar to Twyne’s Case, 3 Coke, 80. The question presented is this: Where there is an
Section 70 of chapter 43 of the Revised Statutes of 1866 provides that “ Every sale made by a vendor of goods and chattels in his possession or under his control, and every assignment of goods and chattels by way of mortgage and security, or upon any condition whatever, unless the same be accompanied by an immediate delivery, and be followed by an actual and continued change of possession of the things sold, mortgaged, or assigned, shall be presumed to be fraudulent and void as against the creditors of the vendor, or the persons making such assignment, or subsequent purchasers in good faith; and shall be conclusive evidence of fraud, unless it shall be made to appear on the part of the persons claiming under such sale or assignment, that the same was made in good faith and without any intent to defraud creditors or purchaser’s.” Gen. Stat., 393.
The proper construction of this section was before this court in the case of Robison v. Uhl, 6 Neb., 333. The court say: “Under the operation of this section it will be seen that the decisions of the courts of those states where the rule of the common law prevails cannot be followed. Under our statutes the retention of possession by the seller is, at most, only prima facie, evidence of fraud, which may be entirely rebutted by the circumstances attending the transaction.” This we regard as a proper construction of the section quoted. The mere retention of possession by the vendor is regarded as prima facie evidence of fraud against his creditors, and is void as to them unless the vendee shall prove the transaction to have been bona fide — that
Judgment affirmed.