required in order to protect the vendee against creditors of the vendor must be indicated by appearances to an observer, and the creditors of the vendee are bound to see what others see, and to judge and act upon it with that prudence which is required of men in business affairs. 18 It is not indispensable to the change of possession that there should be any visible change of the position of the articles, as where the property sold is on the land of a third person.19 In case of the sale of the furniture of a large hotel, actual delivery is not necessary. It is enough that the vendee assume the direction and control in such open and notorious manner as usually accompanies an honest transaction.20 Actual possession of the property either by moving it or by placing some one in charge of it, or by removing all outward evidences of the former ownership, is not necessary, where the nell, 56 Mo. 158; Lesem v. Herriford, 44 Mo. 323; Reynolds v. Beck, 108 Mo. App. 188, 83 S. W. 292; Revercomb v. Duker, 74 Mo. App. 570; State v. Flynn, 66 Mo. App. 373; State v. Durant, 53 Mo. App. 493; Dyer v. Balsley, 40 Mo. App. 559; Knoop v. Nelson Distilling Co., 20 Mo. App. 303; Franklin v. Gumersell, 11 Mo. App. 306. Mont.-O'Gara v. Lowry, 5 Mont. 427, 5 Pac. 583. Neb.-Brunswick v. McClay, 7 Neb. 137. Nev. Gray v. Sullivan, 10 Nev. 416. N. H. Baldwin v. Thayer, 71 N. H. 257, 52 Atl. 852, 93 Am. St. Rep. 510; Clark v. Morse, 10 N. H. 236. Okla. Swartsburg v. Dickerson, 12 Okla. 566, 73 Pac. 282. Or.-Pierce v. Kelly, 25 Or. 95, 34 Fac. 963. Pa.-McMarlan v. English, 74 Pa. St. 296; Miller v. Garman, 69 Pa. St. 134; Trunick v. Smith, 63 Pa. St. 18; Cadbury v. Nolen, 5 Pa. St. 320; Hoofsmith v. Cope, 6 Whart. 53; Schwab v. Woods, 24 Pa. Super. Ct. 433. Utah.-Ewing v. Merkley, 3 Utah, 406, 4 Pac. 244. Vt.-Wheeler v. Selden, 63 Vt. 429, 21 Atl. 615, 26 Am. St. Rep. 711, 12 L. R. A. 600; Weeks v. Preston, 53 Vt. 57; Rothchild v. Rowe, 44 Vt. 389; Flanagan v. Wood, 33 Vt. 332; Kendall v. Samson, 12 Vt. 515; Gates v. Gaines, 10 Vt. 346. Wis.-Missinskie v. McMurdo, 107 Wis. 578, 83 N. W. 758; Manufacturers' Bank v. Rugee, 59 Wis. 221, 18 N. W. 251. 18. Stanley v. Robbins, 36 Vt. 422; Parker v. Kendrick, 29 Vt. 388, it must be such that anyone, on reasonable inquiry, would learn such facts that they would be bound to know the vendee's or mortgagee's lien and control of the property. 19. Merritt v. Miller, 13 Vt. 416. 20. McKibbin v. Martin, 64 Pa. St. 352, 3 Am. Rep. 588. purchaser has taken open, notorious, and visible possession by acts showing a clear and unequivocal delivery." 8 5. Exclusive possession necessary. Upon the sale of a chattel there must be a change of possession, and it must be exclusive in the vendee, or the sale will be void as against the creditors of the vendor. Concurrent or joint possession by both vendor and vendee after the sale is evidence of fraud, and will not place the property beyond the reach of the vendor's creditors.22 Personal property situated upon the land occupied by the vendor and vendee in common may nevertheless be in the exclusive possession of the vendee.23 A joint possession by the vendee and vendor, to make the sale fraudulent as to attaching creditors, must be such as carries with it signs of apparent ownership in both, or 21. Huels v. Boettger, 40 Mo. App. 310, allowing name of seller to remain on a store curtain; Farrar v. Levison, etc., Co., 33 Mo. App. 246; Kane v. Stern, 13 Mo. App. 581, retaining employees of former owner; Lathrop v. Clayton, 45 Minn. 124, 47 N. W. 544. 22. N. Y.-Burnham v. Brennan, 42 N. Y. Super. Ct. 49; Jones v. O'Brien, 36 N. Y. Super. Ct. 58. U. S.-Allen v. Massey, 84 U. S. 351, 21 L. Ed. 542. Cal.-Regli v. McClure, 47 Cal. 612. Colo.-Bassinger V. Spangler, 9 Colo. 175, 10 Pac. 809; Cook v. Mann, 6 Colo. 21. Mo.-State v. Merritt, 70 Mo. 275; Claflin v. Rosenberg, 42 Mo. 439, 97 Am. Dec. 336; Reynolds v. Beck, 108 Mo. App. 188, 83 S. W. 292. Nev.-Gray v. Sullivan, 10 Nev. 416. N. H.-Sumner v. Dalton, 58 N. H. 295; Plaisted v. Holmes, 58 N. H. 293; Lang v. Stockwell, 55 N. H. 561; Trask v. Bowers, 2 N. H. 309. Or.—Pierce v. Kelly, 25 Or. 95, 34 Pac. 963. Pa.-Ziegler v. Handrick, 106 Pa. St. 87; Smith v. Crisman, 91 Pa. St. 428; Worman v. Kramer, 73 Pa. St. 378; Miller v. Garman, 69 Pa. St. 134; Brown v. Keller, 43 Pa. St. 104, 82 Am. Dec. 554; Rex v. Jones, 6 Pa. Co. Ct. 401; Myers v. Wood, 1 Phila. 24. Tex.-Stadtler v. Wood, 24 Tex. 622. Vt.-Weeks v. Prescott, 53 Vt. 57; Mills v. Warner, 19 Vt. 609, 47 Am. Dec. 711; Hall v. Parsons, 17 Vt. 271; Kendall v. Samson, 12 Vt. 515. W. Va.-Livesay v. Beard, 22 W. Va. 585. Wis.-Osen v. Sherman, 27 Wis. 501. Eng.-Latimer v. Batson, 4 B. & C. 652, 10 E. C. L. 742, 7 D. & R. 106, 4 L. J. K. B. O. S. 25; Wordall v. Smith, 1 Campb. 332. 23. Potter v. Mather, 24 Conn. 551. joint control," or such as will lead persons to infer that there has been no actual change.25 In case of a joint possession by the vendor and vendee, or the debtor and officer, if a candid observer would be at a loss to determine which of the two has the chief control and possession of it, the property may be seized for the debts of the vendor or debtor. In cases of doubt in this respect, the law resolves the doubt against the party who should make the change of possession open and visible to the world.26 § 6. Exclusive possession necessary where parties live together. Where the vendor and vendee are members of the same family, inhabiting the same house, or relatives residing together, and there has been no actual delivery and change of possession of the property, and no exclusive possession of it in the vendee, the sale is a fraud upon creditors and invalid as against them. The possession will be presumed to remain in the vendor until the contrary is shown." But delivery of the property, followed by possession on the part of the vendee which is actual and continuous so far as it can be, considering the relation of the parties, while the property is publicly known and recognized as the vendee's, although the vendor continues to use it more or less, as he always has done, but not to the exclusion of the vendee and other persons who recognize the vendee's title, is an immediate delivery and followed by an actual and continued change of possession. Where the property thus remains in the family, in 24. Allen v. Edgerton, 3 Vt. 442. 25. McKibbin v. Martin, 64 Pa. St. 352, 3 Am. Rep. 588. 26. Flanagan v. Wood, 33 Vt. 332. 27. U. S.-Travers v. Ramsey, 24 Fed. Cas. No. 24,152, 3 Cranch C. C. 354. Cal.-Kennedy v. Conroy (1896), 44 Pac. 795. Colo.-Bassinger v. Spangler, 9 Colo. 175, 11 Pac. 809. Ky.-Jarvis v. Davis, 53 Ky. 529, 61 Am. Dec. 166; Waller v. Cralle, 47 Ky. 11; Breckenridge v. Anderson, 3 J. J. Marsh, 710. Me.-McKee v. Garcelon, 60 Me. Pa.-Steelwagon v. Jeffries, 44 Pa. contemplation of law, it is in the possession of the vendee, and, if the vendor or donor sometimes controls it, it raises no presumption of fraud." Where a wife accepts a bill of sale from her husband, and gives him authority to hold the property as her agent, they living together and using the property as hers and for the benefit of the family according to her directions, it is a constructive delivery of the property from him to her." Where a husband sold cattle to his wife and also sold her the brand he had used, which was properly transferred in the record of marks and brands, and the cattle were kept on a tract, part of which belonged to the husband and part to the wife, and after the transfer the husband used a different brand for his cattle, there was a sufficient immediate delivery and actual and continued change of possession within the meaning of the statute.3 30 7. Gifts to minor children.-The fact that an insolvent father retains possession of a chattel, which, while solvent, he has given to a minor child who lives with him, is not a badge of fraud, 28. N. Y.-Danforth v. Wood, 11 Paige, 9, where the parties lived together and used in common property purchased with funds of the vendee. Ark.-Humphries v. McCraw, 9 Ark. 91. Cal.-Morgan v. Ball, 81 Cal. 93, 22 Pac. 331, 15 Am. St. Rep. 34, 5 L. R. A. 579; Clark v. Rush, 19 Cal. 393. Conn.-Gilligan v. Lord, 51 Conn. 562. Ga. Hargrove v. Turner, 112 Ga. 134, 37 S. E. 89, 81 Am. St. Rep. 24; Ector v. Welsh, 29 Ga. 443. Ill.-Neece v. Haley, 23 Ill. 416, sale to minor brother who resided Iwith the vendor. Ky. Enders v. Williams, 1 Metc. 346; Hamilton v. Combs, 22 Ky. L. Rep. 1263, 60 S. W. 371. Miss.-Bullitt v. Taylor, 34 Miss. 708, 69 Am. Dec. 412, that part of the property remains in possession of the vendor raises no presumption of fraud. N. C.-Jones v. Hall, 58 N. C. 26; Bell v. Blaney, 6 N. C. 171. Pa.-McClure v. Forney, 107 Pa. St. 414; Evans v. Scott, 89 Pa. St. 136, where the vendee used, treated and claimed the property as her own. 8. C.-McElwee v. Kennedy, 56 S. C. 154, 34 S. E. 86; Perkins v. Douglas, 52 S. C. 129, 29 S. E. 400; Howard v. Williams, 1 Bailey, 575, 21 Am. Dec. 483. Utah. Farr v. Swigart, 13 Utah, 150, 44 Pac. 711. 29. Brown v. Mitchell, 102 N. C. 347, 9 S. E. 702, 11 Am. St. Rep. 748. 30. Webster v. Sherman (Mont. 1906), 84 Pac. 878. but is consistent with the gift. Formal delivery is not necessary, where the father and child live together, and in such case the subsequent possession of the father is the possession of the child.31 § 8. Question for the jury.-Whether or not there has been an actual and continuous change of possession is a question of fact to be determined on the evidence adduced in the case, and should be submitted to the jury where there is evidence tending to show such change. It is for the jury to say whether a vendee assuming control of personal property has done all that reasonably could be expected to show a bona fide sale to him, in view of the nature, use and situation of the property.32 If a bona fide purchase of personal property has been made, and the price paid, slight acts are sufficient to show a delivery that will avail the buyer against the claims of third persons. Absence of any acts by the vendor of control or ownership of the property is no evidence of transfer.34 31. Ala.-Sewall V. Glidden, 1 Ala. 52. Ark.-Rector v. Danley, 14 Ark. 304. Ga. Hargrove v. Turner, 112 Ga. 134, 37 S. E. 89, 81 Am. St. Rep. 24; Ector v. Welsh, 29 Ga. 443. Iowa.-Pierson v. Heisey, 19 Iowa, 114. Ky.-Enders v. Williams, 1 Metc. 346; Forsyth v. Kreakbaum, 46 Ky. 97; Kenningham v. McLaughlin, 42 Ky. 30. Miss.-Bullitt v. Taylor, 34 Miss. 708, 69 Am. Dec. 412. N. C.-Jones v. Hall, 58 N. C. 26; Bell v. Blaney, 6 N. C. 171. 8. C.-Howard v. Williams, 1 Bailey L. 575, 21 Am. Dec. 483. Vt.-Ross v. Draper, 55 Vt. 404, 46 Am. Rep. 624. See, however, Farr v. Simms, Rich. Eq. (S. C.) 122, 24 Am. Dec. 396. 32. Cal.-Feeley v. Boyd, 143 Cal. 33 282, 76 Pac. 1029, 62 L. R. A. 943; Dubois v. Spinks, 114 Cal. 289, 46 Pac. 95. Conn.-Lake v. Morris, 30 Conn. 201. Ill.-Funk v. Staats, 24 Ill. 632; Neece v. Haley, 23 Ill. 416. Mich.-McLaughlin v. Lange, 42 Mich. 81, 3 N. W. 267. Mo.-White v. Gibson, 113 Mo. App. 568, 88 S. W. 120. Pa.-Goddard v. Weil, 165 Pa. St. 419, 30 Atl. 1000, 36 W. N. C. 98, 25 Pittsb. L. J. N. S. 458. Vt.-Burrows v. Stebbins, 26 Vt. 659; Stephenson v. Clark, 20 Vt. 624; Hall v. Parsons, 17 Vt. 271. 33. Stinson V. Clark, 6 Allen (Mass.) 340; Phelps v. Cutler, 4 Gray (Mass.), 137; Shumway v. Rutter, 7 Pick. (Mass.) 56. 34. Hickok v. Buell, 51 Iowa, 655, 2 N. W. 512; Boothby v. Brown, 40 Iowa, 104. |