8 Wend. 375 | N.Y. Sup. Ct. | 1832
By the verdict of the jury
the question of actual fraud is decided in favor of the plaintiff; the transaction must therefore be considered fair and honest, and the only point of the court to determine is, whether the circumstances of the case are such as to render it fraudulent in law, where there is no fraud in fact.
Fraud consists in doing some act with an intent to injure some person; an act, lawful in itself, becomes unlawful, if done with an intention to deceive and defraud. “ Strictly speaking,” said Mr. Senator Spencer, in Seward v. Jackson, 8 Cowen, 435, “ there is no such thing as fraud in law ; fraud or no fraud is, and ever must be a fact; the evidence of it may be so strong as to be conclusive ; but still it is evidence, and as such must be substituted to a jury. No court can draw it against the finding of a jury.” Lord Mansfield held, and after him many distinguished judges, that “ whether a transaction be fair or fraudulent, is often a question of law ; it is the judgment of law upon facts and intents.”' 1 Burr. 474. Again ; “ Fraud is sometimes mere matter of fact; and sometimes the conclusion of law from facts.” 2 Burr. 937. It has often been said by this court, that when there is no dispute about facts, fraud is a question of law : whether any given transaction be fraudulent or not, is a question of law ; the court pronounce the intention as inferrible from the facts and circumstances. The question is generally a mixed one of law and fact. The court declare the law to the jury, and they, under the instruction of the court, find the fact and intent. If the instruction of the court to the jury in this case was correct, the verdict ought not to be disturbed. The judge stated to the jury that the transaction between Hatch and Hall amounted to a mortgage, and therefore the possession in the mortgagor was consistent with the rules of law ; that possession by Hatch was susceptible of explanation, and was not fraudulent in law. The rule, as I understand it, is, that possession by the vendor or mortgagor, after forfeiture, is prima facie evidence
If I am right in supposing that the rule laid down in Sturtevant v. Ballard, amounts to no more than that possession remaining in the vendor is prima facie evidence of fraud, then there is no discrepancy between the cases in this court; they all maintain the same doctrine, and such substantially was the law stated to the jury in this case; and so have the legisla? ture pronounced the law to be, from and after J anuary 1, 1830. “ Every sale made by a vendor of goods and chattels in his
According to this rule, the fact that Hatch was in possession of the sloop after executing the assignment of the 21st November, 1825, was suffipicnt evidence of fraud to avoid the transfer, and it was incumbent on the plaintiff Hall to shew, not only that there was a valuable consideration, but that the transfer was made bona fide in the language of the revised statutes “ in good faith, and without any intent to defraud” the creditors of Hatch. It seems to me that the facts in the case fully rebut the presumption of fraud. It does not appear that Hatch was indebted at the time of the assignment, or that Hall had any knowledge of his embarrassments. It does appear that Hatch purchased this very sloop upon Hall’s credit, and the original agreement was that Hall should jiave security upon the sloop until Hatch should pay .for her. Hatch ought, in pursuance of this agreement, to have taken the title in the first instance to Hall; but for that omission, Hall ought not to suffer. Hall has paid for the vessel, and had paid half the price when the assignment was made, The assignment was not made in secret, but with the ordinary publicity of other business transactions ; it was not made to pay an old debt, or to prefer one creditor at the expense of others ; it does not appear that before the payment of the two notes of $500 each the relation of debtor and creditor existed between them. The
In these remarks I have assumed the rule of law to be that possession by the vendor, after the execution of a bill of sale, is only prima facie evidence of fraud. I ought, however, to state, that the main point relied on by the defendant is, that the assignment from Hatch to Hall being absolute, the possession by Hatch afterwards renders the sale fraudulent and void; that is, as I understand it, that such possession is conclusive evidence of fraud.
It must be remembered that there are several statutes referred to in the cases discussing the subject. By the 13th Eliz. ch. 5, it is enacted, in substance, that all and every gift, grant or conveyance of lands, or of goods and chattels, made with intent to delay, hinder or defraud creditors and others of their lawful actions, &c. shall be deemed utterly void, provided that this act shall not extend to any conveyance upon good consideration, and bona fide, the person receiving the conveyance having no notice or knowledge of any fraud or collusion. Upon this statute Lord Mansfield has well remarked, Cowp. 434, “ The statute says not a word about possession, but the law says, if after a sale of goods, the vendor continued in possession and appears as the visible owner, it is evidence of fraud, because goods pass by delivery.” By the bankrupt act, 21 James 1, ch. 19, § 11, it is enacted as follows: “ Whereas bankrupts commonly before they become so, convey their goods upon good consideration, and yet continue the possession of them and are reputed the owners thereof, it is enacted, that if at the time of the bankruptcy they have in their possession, order or disposition as owners, the goods of others, with their consent, the commissioners may sell them.”
The earliest case to which we have been referred, is Twyne’s ease, 3 Cok. 80, which was decided in the the 44th of Elizabeth,
A.
The case of Edwards v. Harben, 2 T. R. 587, is supposed to be conclusive upon the point. In that case, a party indebted both to the plaintiff and defendant, gave the defendant a bill of sale of all his goods, household furniture, and stock in trade, by way of security for his debt, with liberty to the defendant to take possession and sell them in fourteen days, unless the money should be sooner paid. Before the fourteen days expired; the debtor died and the defendant took possession, whereupon the plaintiff sued him as executor ; and the question was whether, under those circumstances, the bill of sale was fraudulent. The plaintiff’s counsel did not pretend that possession in the vendor was absolute fraud, but his first point Was, “ Whenever the vendor is found in the actual possession of goods which he has sold, such continuance in possession is prima facie evidence of an intent to delay, hinder or defraud creditors, and throws it on the other party to rebut it, by shewing that the continuance in possession was with some other view.” Mr. Justice Buller delivered the opinion of the court, and cites a number of cases which he says are in favor of the proposition, that want of possession in the vendee is fraudulent. He says, “ This case has been argued by the defendant’s counsel as being a case in which the want of possession
But if the case of Edwards v. Harben is to be considered an authority in point, it is no authority in this state, not being the acknowledged law of England in 1775, and having been often departed from since, and even denied to be law-by subsequent cases. In Stewart v. Lombe, 1 Brod. & Bing. 506, in 1820, Ch. J, Dallas and Mr. J. Parke, both say that Edwards v. Harben has been often dissented from. In Steel v. Brewer, 1 Taunt. 382, Mr. Justice Lawrence says, “ Edwards
I will pursue the English cases no farther, nor the American cases, except those of the United States court and of our own state. It cannot be denied that the supreme court of the Uni
The first case in this court, where the doctrine under consideration came expressly before the court, is Barrow v. Paxton, 5 Johns R. 258. In that case, the plaintiff had leased a house to one Belding, who to secure the rent, mortgaged his furniture, which, however, remained in the house and in Beld
The subsequent cases have all recognized this principle. In Butts v. Swartwood, 2 Cowen, 431, Sutherland, justice, says : “ The non-delivery of the bureau is only one circumstance in proof of fraud, and it is accounted for.” In Bissell v. Hopkins 3 Cowen, 166, the question was very fully and ably argued and upon due consideration the same principle was adhered to. The reporter has appended to that case a very learned and elaborate note, shewing conclusively that the principle decided by the court is the true one, and is supported by the more modern as well as ancient decisions ; see also Jackson v. Mather, 7 Cowen, 304. In Stutson v. Brown, 7 id. 732, the transaction was considered fraudulent, not merely because possession did not accompany the bill of sale, but because, all circumstances considered, the sale was intended to cover the property iron/ the execution of the defendants, which was soon expected! In Jennings v. Carter, 2 Wendell, 449, Marcy, justice, says: “ It is well settled that explanations may be given, which will effectually repbl the presumption of fraud arising from continuance of possession in the vendorand in Divver v. McLaughlin, 2 Wendell, 596, it was held that “ the possession of personal property by the vendor or mortgager, inconsistent with the face of the deed, is prima facie evidence of fraud, but subject to explanation. In the two last cases the explanation offered was deemed insufficient, and the transaction was held fraudulent. In the first, cattle were sold in payment of an old debt soon after a judgment rendered against the vendor, and when the vendee had no means of keeping the cattle ; which were suspicious circumstances against the fairness of the transaction, instead of proving the absence of fraud. In the other, there existed several indicia of fraud, as enumerated in the opinion, page 600. In the case before the court there are no facts which indicate fraud, except that possession remaining in the vendor; all the other circumstances repel the fraudulent intent, y
Having shewn what is the law in this state, and that possession by the vendor after the sale is only prima facie, and not conclusive evidence of fraud, it is unnecessary to inquire what
Although the bill of sale in this case, or rather assignment, was absolute in its terms, it was accompanied with a parol agreement which rendered it a mortgage. If we are to understand, as I think is warranted by the evidence of Hatch, that Hall had paid the whole $2000, then Hatch had no legal interest in the sloop; there was no definite period for which he had a right to the possession, and Hall might, dispossess him at pleasure. All the interest he had was an equity that Hall should return to him the proceeds of the sale of the sloop, after deducting what was due to himself. A mere equitable interest cannot be sold on execution. I am therefore clearly of opinion that the plaintiff is entitled to recover, and the motion for a new trial must be denied.