Stevens, J.
Trial of the right of property. An execution [27] of fieri facias in favour of Williams and Chase against one Jackson, was levied on three pair of blacksmith’s bellows, and other blacksmith’s tools, as the property of said Jackson, being found in his possession. Watson and Allen claimed the property; and such proceedings were had upon the claim, that it was finally tried by a jury in the Circuit Court, and found to be the property of Jackson, and subject to the' execution of Williams and Chase. Watson and Allen claim under a mortgage deed, in the usual and regular form of mortgage deeds, with a provision that if the said Jackson should well and truly pay and satisfy, on or before the 20th of November, 1833, a certain judgment due from him to them, the said Watson and Allen, for the sum of 31 dollars, &c., and also pay one note of 17 dollars, &c. due from him to them, the said Watson and Allen, on or before the 20th of January, 1834, then the mortgage to be void, &c.
The record also shows that the mortgage was proved to have been made in good faith, and for value; that Jackson owed the money mentioned in the condition; and that it still remained unpaid. It was also further proved, that, on the day the mortgage was entered into and made, the mortgaged goods were delivered to Watson and Allen, the mortgagees; and that they left them with the mortgagor, Jackson, where they remained until executed. The record further shows, that Watson and Allen then offered to prove and explain by proof, why they had thus left the goods with the mortgagor, and to show, that such possession was not inconsistent wdth the mortgage, &c.; but thé Court refused to admit the evidence to go to the jury. It further appears of record that the Court charged the jury, if the property in dispute remained in the possession of Jackson, after the execution of the mortgage deed, it was of itself evidence of fraud as to creditors, if that possession was inconsistent with the terms of the mortgage; and that the terms of the mortgage were absolute, and therefore the subsequent possession by the mortgagor could not be explained by any testimony offered.
The only question presented in this case is, whether the mortgagor’s subsequent possession of the mortgaged goods can be explained, by parol evidence, under the terms of the mortgage deed?
[28] This has long been, and it seems as if it would ever be, a vexed question. There is no doubt that the visible possession and control by the mortgagor or seller of goods and chattels, after he has thus mortgaged or sold his property in them, with the consent of the mortgagee or buyer, is evidence of fraud. That far the question is settled, both in England and America;- but the great point of controversy is, whether the fraud which is thus to be inferred from the fact of possession, is an unconditional and absolute presumption of fraud; or whether the fact is only evidence of fraud, and is susceptible of explanation by proof to a jury? .
In England, in the case of Stone v. Grubham, 2 Bulst. Rep. 225, it was held, that the subsequent possession of the vendor of a chattel was not fraudulent, if the bill of sale was s conditional, for the payment of money, and the bill by its terms showed that the vendor was to retain possession until default was made. And in the case of Bucknal v. Roiston, Prec. in Chan. 285, a bill of sale of goods was given; and it appeared upon the face of the bill that it was given as collateral security, and that dhe vendor was to keep possession, &c.; the Lord Chancellor held that it was not fraudulent. Again, in the case of Cadogan v. Kennett, Cowp. 432, where household goods were transferred to trustees, it was held that those goods were- protected from execution, although the grantor continued in possession. The Court said that the transaction was fair-, and that it was a part of the trust that the grantor -should continue in possession. But in the case of Worseley v. de Mattos & Slader, 1 Bur. Rep. 467, Lord Mansfield strongly insists that there is no distinction between absolute and conditional sales; that a continuance in possession by a mortgagor was fraudulent at common law, and void by the statute of Elizabeth ; and in that case it was held that a mortgage of goods, with the possession retained by the mortgagor, was fraudulent in law equally as it would be upon an absolute bill of sale. And finally in the case of Edwards v. Harben, 2 Term Rep. 587, the principle was emphatically settled, that if the vendee took an absolute bill of sale, to take effect immediately by the face of it, and the goods were left in possession of the vendor, it was in law a fraud per se; but that in all cases where that possession might be consistent with the face of the conveyance, the possession might be explained by proof.
[29] After this, the law appeared for many years to be permanently settled in that country; and it was repeatedly that an absolute sale of chattels unaccompanied by possession was fraudulent in law, and void as to creditors; that the change of possession must be substantial and exclusive, and not concurently with the assignor. Recently, however, the doctrine as it was then settled has been much shaken.- The modern English decisions appear to establish a more lax rule; the Courts now say that the question of fraud in such cases is a fact for a jury to determine; and that a continuance in possession by a mortgagor or vendor is only prima f acie a badge of fraud; and that the presumption of fraud arising from that circumstance, may be rebutted by explanations showing the transaction to be fair and honest, and giving a reasonable .account of the object of that possession; that the fraud thus arising is not an absolute inference of law, but one of fact for a jury. Wooderman v. Baldock, 8 Taunt. 676.—Kidd v. Rawlinson, 2 Bos. & Pull. 59.—Cole v. Davies, 1 Ld. Raym. 724.—Lady Arundell v. Phipps, 10 Ves. 140.— Watkins v. Birch, 4 Taunt. 823.—Jezeph v. Ingram, 8 Taunt. 838.—Latimer v. Batson, 4 Barn. & Cress. 652.—Leonard v. Baker, 1 Maule & S. 251.— Steward v. Lombe, 1 Brod. & Bing. 506.—Eastwood v. Brown, Ryan & Moody, 312.—Reed v. Blades, 5 Taunt. 212.—Storer v. Hunter, 3 Barn. & Cress. 368.
In the Supreme Court of the United States, the doctrine as settled in England, in the case of Edwards v. Harben, is established. Hamilton v. Russell, 1 Cranch, 309.-— United States v. Conyngham, 4 Dall. 358.—Meeker v. Wilson, 1 Gall. Rep. 419.
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Stevens, J.
Trial of the right of property. An execution [27] of fieri facias in favour of Williams and Chase against one Jackson, was levied on three pair of blacksmith’s bellows, and other blacksmith’s tools, as the property of said Jackson, being found in his possession. Watson and Allen claimed the property; and such proceedings were had upon the claim, that it was finally tried by a jury in the Circuit Court, and found to be the property of Jackson, and subject to the' execution of Williams and Chase. Watson and Allen claim under a mortgage deed, in the usual and regular form of mortgage deeds, with a provision that if the said Jackson should well and truly pay and satisfy, on or before the 20th of November, 1833, a certain judgment due from him to them, the said Watson and Allen, for the sum of 31 dollars, &c., and also pay one note of 17 dollars, &c. due from him to them, the said Watson and Allen, on or before the 20th of January, 1834, then the mortgage to be void, &c.
The record also shows that the mortgage was proved to have been made in good faith, and for value; that Jackson owed the money mentioned in the condition; and that it still remained unpaid. It was also further proved, that, on the day the mortgage was entered into and made, the mortgaged goods were delivered to Watson and Allen, the mortgagees; and that they left them with the mortgagor, Jackson, where they remained until executed. The record further shows, that Watson and Allen then offered to prove and explain by proof, why they had thus left the goods with the mortgagor, and to show, that such possession was not inconsistent wdth the mortgage, &c.; but thé Court refused to admit the evidence to go to the jury. It further appears of record that the Court charged the jury, if the property in dispute remained in the possession of Jackson, after the execution of the mortgage deed, it was of itself evidence of fraud as to creditors, if that possession was inconsistent with the terms of the mortgage; and that the terms of the mortgage were absolute, and therefore the subsequent possession by the mortgagor could not be explained by any testimony offered.
The only question presented in this case is, whether the mortgagor’s subsequent possession of the mortgaged goods can be explained, by parol evidence, under the terms of the mortgage deed?
[28] This has long been, and it seems as if it would ever be, a vexed question. There is no doubt that the visible possession and control by the mortgagor or seller of goods and chattels, after he has thus mortgaged or sold his property in them, with the consent of the mortgagee or buyer, is evidence of fraud. That far the question is settled, both in England and America;- but the great point of controversy is, whether the fraud which is thus to be inferred from the fact of possession, is an unconditional and absolute presumption of fraud; or whether the fact is only evidence of fraud, and is susceptible of explanation by proof to a jury? .
In England, in the case of Stone v. Grubham, 2 Bulst. Rep. 225, it was held, that the subsequent possession of the vendor of a chattel was not fraudulent, if the bill of sale was s conditional, for the payment of money, and the bill by its terms showed that the vendor was to retain possession until default was made. And in the case of Bucknal v. Roiston, Prec. in Chan. 285, a bill of sale of goods was given; and it appeared upon the face of the bill that it was given as collateral security, and that dhe vendor was to keep possession, &c.; the Lord Chancellor held that it was not fraudulent. Again, in the case of Cadogan v. Kennett, Cowp. 432, where household goods were transferred to trustees, it was held that those goods were- protected from execution, although the grantor continued in possession. The Court said that the transaction was fair-, and that it was a part of the trust that the grantor -should continue in possession. But in the case of Worseley v. de Mattos & Slader, 1 Bur. Rep. 467, Lord Mansfield strongly insists that there is no distinction between absolute and conditional sales; that a continuance in possession by a mortgagor was fraudulent at common law, and void by the statute of Elizabeth ; and in that case it was held that a mortgage of goods, with the possession retained by the mortgagor, was fraudulent in law equally as it would be upon an absolute bill of sale. And finally in the case of Edwards v. Harben, 2 Term Rep. 587, the principle was emphatically settled, that if the vendee took an absolute bill of sale, to take effect immediately by the face of it, and the goods were left in possession of the vendor, it was in law a fraud per se; but that in all cases where that possession might be consistent with the face of the conveyance, the possession might be explained by proof.
[29] After this, the law appeared for many years to be permanently settled in that country; and it was repeatedly that an absolute sale of chattels unaccompanied by possession was fraudulent in law, and void as to creditors; that the change of possession must be substantial and exclusive, and not concurently with the assignor. Recently, however, the doctrine as it was then settled has been much shaken.- The modern English decisions appear to establish a more lax rule; the Courts now say that the question of fraud in such cases is a fact for a jury to determine; and that a continuance in possession by a mortgagor or vendor is only prima f acie a badge of fraud; and that the presumption of fraud arising from that circumstance, may be rebutted by explanations showing the transaction to be fair and honest, and giving a reasonable .account of the object of that possession; that the fraud thus arising is not an absolute inference of law, but one of fact for a jury. Wooderman v. Baldock, 8 Taunt. 676.—Kidd v. Rawlinson, 2 Bos. & Pull. 59.—Cole v. Davies, 1 Ld. Raym. 724.—Lady Arundell v. Phipps, 10 Ves. 140.— Watkins v. Birch, 4 Taunt. 823.—Jezeph v. Ingram, 8 Taunt. 838.—Latimer v. Batson, 4 Barn. & Cress. 652.—Leonard v. Baker, 1 Maule & S. 251.— Steward v. Lombe, 1 Brod. & Bing. 506.—Eastwood v. Brown, Ryan & Moody, 312.—Reed v. Blades, 5 Taunt. 212.—Storer v. Hunter, 3 Barn. & Cress. 368.
In the Supreme Court of the United States, the doctrine as settled in England, in the case of Edwards v. Harben, is established. Hamilton v. Russell, 1 Cranch, 309.-— United States v. Conyngham, 4 Dall. 358.—Meeker v. Wilson, 1 Gall. Rep. 419.
In the state of Virginia, the same principle has been directly and repeatedly settled. Alexander v. Deneale, 2 Munf. 341. It may, however, be proper to observe that in the case of Land v. Jeffries, 5 Rand. Rep. 211, the rule was qualified. In that case the Court held, that the possession of the vendor of goods and chattels is only prima facie fraudulent, and not such conclusive fraud, in any case, as to bar all explanation. But in the case of Claytor v. Anthony, 6 Rand. Rep. 285, the Court re-examines the whole doctrine, overrules the decision in the case of Land v. Jeffries, 5 Rand. Rep. 211, and ably maintains the rule established by the previous decision.
In South-Carolina, the English rule, as established by the case of Edwards v. Harben, is declared by all the-judges to be [30] the settled rule. Kennedy v. Ross, 2 Const. Rep. 125.—Hudnal v. Wilder, 4 M’Cord’s Rep. 294. In Tennessee, the same rule is adopted. Ragan v. Kennedy, 1 Ten. Rep. 91. But in Kentucky the modern English rule is adopted. Baylor v. Smithers’ heirs, 1 Littell’s Rep. 105.
In Pennsylvania, the general principle is emphatically recognised, that on an absolute sale or assignment of chattels, possession must accompany and follow the conveyance, and vest exclusively in the vendee, or it is fraudulent in law, though there be no fraud in fact; and in the case of a mortgage of goods an absolute delivery is requisite; the statement on the face of the mortgage, that possession is to be retained by the vendor, is not sufficient; that such a transaction is fraudulent per se. Dawes v. Cope, 4 Binn. 258.—Babb v. Clemson, 10 Serg. & Rawle, 419.—Shaw v. Levy, 17 ib. 99.—Hower v. Geesman, ib. 251.—Clow v. Woods, 5 ib. 275.—Cowden v. Brady, 8 ib. 510.—Dean v. Patton, 13 ib. 345.
In New-Jersey, Connecticut, and Vermont, the same rule is rigidly adhered to. The delivery of possession, -in the case of a sale or a mortgage of goods, is held to be necessary, if it be practicable; that there must be an actual and not a colourable change.of possession; that on a sale or mortgage of chattels, an agreement either in or out of the conveyance, that the vendor may keep possession, is (except in special cases, and for special reasons, to be shown to and approved of by the Court,) fraudulent and void, as to creditors and bona fide purchasers. Chumar v. Wood, 1 Hals. Rep. 155.—Patten v. Smith, 5 Conn. Rep. 196.—Fletcher v. Howard, 2 Aiken’s Ver. Rep. 115.—Beattie v. Robin, 2 Ver. Rep. 181.
In the state of New-York, the question has been continually vibrating from side to side. In the cases of Barrow v. Paxton, 5 Johns. Rep. 258, and Beals v. Guernsey, 8 ib. 446, the Court says, that the circumstance of the possession of goods not accompanying the sale or mortgage of them, is only prima facie evidence of fraud, and it may be explained. In the case of Sturtevant v. Ballard, 9 Johns. Rep. 337, the subject received a thorough discussion, and most of the authorities both in England and America were reviewed, and the English doctrine as settled in the case of Edwards v. Harben adopted. In the case of Ludlow v. Hurd, 19 Johns. Rep. 218, the Court said [31] that the question was unsettled and left it open for debate. And finally, in the case of Bissell v. Hopkins, 3 Cowen’s 166, the doctrine established in the case of Sturtevant v. Ballard was entirely overthrown. Afterwards in the case of Divver v. McLaughlin, 2 Wend. 596, the rule in the case of Sturtevant v. Ballard was again recognised. At this point the legislature of-the state interfered, and in their late revised laws put the question to rest. They enacted, that unless the sale or assignment be accompanied by immediate delivery, and followed by an actual and continued change of possession, it-shall be presumed to be fraudulent and void as against creditors, &c.; 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, &c.
In Massachusetts, New-Hampshire, and Maine, it is settled, that the retention of possession by the vendor of goods and chattels, after an absolute sale or a mortgage of them, is only prima facie evidence of fraud, and it may be explained by proof. Brooks v. Powers, 15 Mass. Rep. 244.—Bartlett v. Williams, 1 Pick. Rep. 288.—Homes v. Crane, 2 ib. 607.—Wheeler v. Train, 3 ib. 255.—Ward v. Sumner, 5 ib. 59.—Shumway v. Rutter, 7 ib. 56.—Haven v. Low, 2 New H. Rep. 13.—Coburn v. Pickering, 3 N. Hamp. Rep. 415.—Reed, v. Jewett, 5 Greenleaf’s Rep. 96.—Holbrook v. Baker, 5 ib. 309.
In North-Carolina, the rule is much more relaxed; the whole subject, in all cases, is submitted to a jury, and very little weight is attached to the circumstance of possession in any case. Vick v. Kegs, 2 Hayw. Rep. 126.—Falkner v. Perkins, ib. 224.— Smith v. Neil, 1 Hawk. Rep. 341.—Trotter v. Howard, ib. 320. Howell v. Elliott, 1 Badg. & Dev. Rep. 76.—In 1830, the legislature of this state interfered, and have placed the subject on a more sure footing, by requiring a registry of all such mortgages, conveyances, &c., to make them valid