the sale a subsequent purchaser having knowledge of when the debt was contracted.34 A sale of which judgment creditor had notice before his rights attached cannot be attacked by him on the ground that the property has not been delivered. A gift will be supported against subsequent creditors with notice, although the donor retain possession after the gift. But where a statute makes a sale, without delivery or change of possession, void as against subsequent creditors or purchasers, the fact that a subsequent attaching creditor knew of the sale, and continued to deal with the debtor as "manager," is immaterial.37 § 36. Constructive notice and want of it- Recording instrument of transfer.- Where an instrument is not authorized or required by law to be recorded, the recording of it does not constitute notice to any one.38 Since it is not necessary to the validity of a contract between husband and wife, based upon consideration of marriage, that it should be recorded, or that any publicity or notoriety should be given to it, secrecy or concealment in such a case is not evidence of fraud.39 But if an instrument be duly recorded according to law, it is notice to all persons, no matter who is in possession of the property affected by it.40 8 37. Effect of failure to record or file instrument in general. -Under the recording statutes, where the grantee or mortgagee withholds his conveyance from record and permits the grantor 34. Vanmeter v. Estill, 78 Ky. 456. 35. Ludwig v. Fuller, 17 Me. 162, 35 Am. Dec. 245. 36. Madden v. Day, 1 Bailey (S. C.) 587. 37. Harkness v. Smith, 2 Ida. 952, 28 Pac. 423. 38. Fechheimer v. Baum, 43 Fed. 719, 2 L. R. A. 153, the fact that an agreement by a debtor to prefer a certain creditor in case of insolvency is not recorded, does not render it fraudulent; Bassinger v. Spangler, 9 Colo. 175, 10 Pac. 809, the statute requiring change of possession applies, whether or not the seller's creditors are aware of the sale. 39. Cochran v. McBeath, 1 Del. Ch. 187. 40. Mitchell v. Steelman, 8 Cal. 363. or mortgagor to retain possession and the apparent title, the transaction, although it may be valid as between the parties, will not stand as against creditors of the grantor or mortgagor who, in ignorance of the conveyance, have credited him on the strength of his ownership of the property, or upon the faith of his apparent title." The right of a creditor to subject the prop 41. N. Y.-Raymond v. Richmond, 78 N. Y. 351; Chemung Canal Bank v. Payne, 22 App. Div. 353, 47 N. Y. Supp. 877. U. S.-Blennerhassett v. Sherman, 105 U. S. 100, 26 L. Ed. 1080; Hodgson v. Butts, 7 U. S. 140, 2 L. Ed. 391; Clayton v. Macon Exch. Bank, 121 Fed. 630, 57 C. C. A. 656; Corwine v. Thompson Nat. Bank, 105 Fed. 196, 44 C. C. A. 442. Ala.-Griffin v. Hall, 129 Ala. 289, 29 So. 783; Watt v. Parsons, 73 Ala. 202. Ark.-Sumpter v. Arkansas Nat. Bank, 69 Ark. 224, 62 S. W. 577; Bunch v. Schaer, 66 Ark. 98, 48 S. W. 1071. Cal.-Stafford v. Lick, 7 Cal. 479. Conn.-Curtis v. Lewis, 74 Conn. 367, 50 Atl. 878. La. First Nat. Bank v. Ft. Wayne Artificial Ice Co., 105 La. 133, 29 So. 379. Me.-Shaw v. Wilkshire, 65 Me. 485. Mich.-Buhl Iron Works v. Teuton, 67 Mich. 623, 35 N. W. 804; Talcott v. Crippen, 52 Mich. 633, 18 N. W. 392. Minn.-Baker v. Pottle, 48 Minn. 479, 51 N. W. 383. Miss.-Charlotte Supply Co. V. Britton, etc., Bank (1898), 23 So. 630; Loughridge v. Bowland, 52 Miss. 546; Hilliard v. Cagle, 46 Miss. 309. Mo.-Singer Mfg. Co. v. Stephens, 169 Mo. 1, 69 S. W. 903, although the owner did not have actual knowledge of the obtaining of the credit; Williams v. Kirk, 68 Mo. App. 457; Sauerwein v. Renard Champagne Co., 68 Mo. App. 29; Sauer v. Behr, 49 Mo. App. 86. N. J.-Burne v. Partridge, 61 N. J. Eq. 434, 48 Atl. 770. Or.-Davis v. Bowman, 25 Or. 189, 35 Pac. 264. Pa.-Hartley v. Millard, 167 Pa. St. 322, 31 Atl. 641. Tenn.-Williams V. Walton, 16 Tenn. 387, 29 Am. Dec. 122; Douglass v. Morford, 16 Tenn. 373; Malone v. Brown (Ch. App. 1897), 46 S. W. 1004. Tex.-Puckett v. Reed, 3 Tex. Civ. App. 350, 22 S. W. 515; Russell v. erty of one having title thereto to the debt of another, on the theory that credit was extended to the possessor on the faith of his apparent ownership, rests on purely equitable ground, the doctrine of equitable estoppel, the underlying principle of which is that the owner, by concealing his title, permitted the person in possession and use of the property to commit a fraud on the creditor.12 It has been held also that the grantee or mortgagee is estopped by his laches from asserting his interest in the property." But withholding a deed or mortgage from record is not fraudulent as to creditors, in the absence of evidence that the grantor or mortgagor thereby obtained a fictitious credit and that his creditors extended credit to him in reliance on his unincumbered ownership of the property." Nall, 2 Tex. Civ. App. 60, 20 S. W. 1006, 23 S. W. 901. Va.-Grasswitt's Assignee v. Connally, 27 Gratt. 19; Lewis v. Caperton, 8 Gratt. 148; Shirley v. Long, 6 Rand. 764. Wash.-Deggenger v. Seattle Brewing & Malting Co., 41 Wash. 385, 83 Pac. 898, a transfer of a liquor license is void as to creditors where the instrument of transfer is not recorded and the assignor retains possession of the license. Wis.-Kickbush v. Corwith, 108 Wis. 634, 85 N. W. 148; Van Dusen v. Hinz, 108 Wis. 178, 84 N. W. 151. A chattel mortgage, given in connection with a secret agreement to keep its existence a secret for the purpose of protecting the mortgagor's credit, is fraudulent as to creditors. Moore v. Wood (Tenn. Ch. App.. 1901), 61 S. W. 1063. 42. Hardin v. Dolge, 46 App. Div. (N. Y.) 416, 61 N. 1. Supp. 753; Ross v. Cooley, 113 Ga. 1047, 39 S. E. 471. See cases cited in the last preceding note. 43. Sumpter V. Arkansas Nat. Bank, 69 Ark. 224, 62 S. W. 577. 44. N. Y.-Castleman v. Mayer, 55 App. Div. 515, 67 N. Y. Supp. 229; Hardin v. Dolge, 46 App. Div. 416, 16 N. Y. Supp. 753. U. S.-Corwine v. Thompson Nat. Bank, 105 Fed. 196, 44 C. C. A. 442. Ala.-Danner Land, etc., Co. V. Stonewall Ins. Co., 77 Ala. 184. Del.-Cochran v. McBeath, 1 Dec. Ch. 187. Ga.-Trounstine v. Irving, 91 Ga. 92, 16 S. E. 310. Ill.-German Ins. Co. v. Bartlett, 188 Ill. 165, 58 N. E. 1075, 80 Am. St. Rep. 172; Earl v. Earl, 186 Ill. 370, 57 N. E. 1079. Ind.-State Bank v. Backus, 160 Ind. 682, 67 N. E. 512. Iowa.-Atkinson v. McNider (1905), 105 N. W. 504; Ward v. Parker (1905), 103 N. W. 104, in the absence of an agreement that it shall be so withheld; Groetzinger v. Wyman, 105 Iowa, 574, 75 N. W. 512; Brown v. Bradford, 103 Iowa, 378, 72 N. W. 648; Lemert v. McKibben, 91 38. Rule as to conveyances of real estate. The rule, in the case of sales of personal property, that retention of or continuance in possession by the vendor amounts to fraud as matter of law or is prima facie evidence that the conveyance was fraudulent, does not apply to sales of real estate, and continuance in possession by a grantor of real estate after conveyance, while a circumstance to be considered with the other evidence, does not in itself warrant the legal conclusion that the conveyance was fraudulent." The Iowa, 345, 59 N. W. 207. Ky.-United States Bank v. Huth, 43 Ky. 423. Mich.-Campbell v. Remaly, 112 Mich. 214, 70 N. W. 432, 67 Am. St. Rep. 393. Mo.-Wall v. Beedy, 161 Mo. 625, 61 S. W. 864; Gentry v. Field, 143 Mo. 399, 45 S. W. 286; First Nat. Bank v. Rohrer, 138 Mo. 369, 39 S. W. 1047; Jones v. Levering, 116 Mo. App. 377, 91 S. W. 980, in the absence of an agreement that it should be so withheld. Neb.-News Pub. Co. v. Tyndale, 2 Neb. (Unoff.) 256, 96 N. W. 125. N. J.-Andrus v. Burke, 61 N. J. Eq. 297, 48 Atl. 228. S. C.-McElwee v. Kennedy, 56 S. C. 154, 34 S. E. 86. Wis.-McFarlane v. Louden, 99 Wis. 620, 75 N. W. 394, 67 Am. St. Rep. 883. See also Concealment of or failure to record conveyance, chap. VI, § 16, supra. Delay in recording not available to subsequent creditor.— The fact alone that deeds conveying property were withheld from record by the grantee for a number of years affords no ground for setting aside such deeds in a creditors' suit by a judgment creditor of the grantor whose judgment was not obtained until after they were recorded, although it is entitled to consideration on the question of the bona fides of the transaction; nor does the further fact that during such time portions of the lands were sold and deeds were made to the purchasers by the grantor, who still held the title of record, sustain a claim of fraud, where it is shown that the proceeds were paid to the grantee. Brown v. Easton, 112 Fed. 592. An unrecorded mortgage being absolutely void until it is recorded, until that time amounts to no more than an agreement to give a mortgage, and the mere fact that it was withheld from record does not constitute fraud as against other creditors as to whom it would have created a valid lien, if executed, at the time it was filed. In re Shirley, 112 Fed. 301, 50 C. C. A. 252. 45. N. Y.-Clute v. Newkirk, 46 N. Y. 684; Willis v. Willis, 79 App. Div. 9, 79 N. Y. Supp. 1028; Every v. Edgerton, 7 Wend. 259. U. S.-Crawford v. Neal, 144 U. S. 585, 12 Sup. Ct. 759, 36 L. Ed. 552; Phettiplace v. Sayles, 19 Fed. Cas. No. 11,083, 4 Mason, 312. Ala.-Miller v. Rowan, 108 Ala. 98, 19 So. 9; Tompkins v. Nichols, 53 Ala. 197; Noble v. Coleman, 16 Ala. 77; Paulling v. Sturgus, 3 Stew. 95. title to real estate is evidenced by possession, not of the thing, but of the title deeds, which, like manual occupation in the case of a chattel, is the criterion." But the fact that a grantor, after executing a conveyance, remains in possession, is a circumstance proper to be considered as tending to show fraud, and a long and unexplained continuance of the grantor's possession taken in connection with other suspicious circumstances may be sufficient to establish that the sale was colorable and fraudulent and that some trust for the grantor's benefit was intended." An absolute But see Cooper v. Davison, 86 Ala. 367, 5 So. 650. Ark.-Godfrey v. Herring (1905), 25 S. W. 232; Apperson v. Burgett, 33 Ark. 328. Conn.-Tibbals v. Jacobs, 31 Conn. 428. Ga. Smith v. McDonald, 25 Ga. 377; Peck v. Land, 2 Ga. 1, 46 Am. Dec. 368. Ind.-Pennington v. Flock, 93 Ind. 378; Tedrowe v. Esher, 56 Ind. 443. Iowa.-Suiter v. Turner, 10 Iowa, 517. Ky.-Anglin v. Conley, 114 Ky. 741, 24 Ky. L. Rep. 1551, 71 S. W. 926; Screvenor v. Screvenor, 46 Ky. 374. La.-Cole v. Cole, 39 La. Ann. 878, 2 So. 794; Spivey v. Wilson, 31 La. Ann. 653; Parmer v. Mangham, 31 La. Ann. 348; Richardson v. Cramer, 28 La. Ann. 357; Hobgood v. Brown, 2 La. Ann. 323. Md.-Thompson v. Williams, 100 Md. 195, 60 Atl. 26. Mo.-Stam v. Smith, 183 Mo. 464, 81 S. W. 1217; King v. Moore, 42 Mo. 551; Stewart v. Thomas, 35 Mo. 202. N. H.-Merrill v. Locke, 41 N. H. 486. N. J.-Dresser v. Zabriskie (Ch. 1898), 39 Atl. 1066. Ohio.-Barr v. Hatch, 3 Ohio, 527. But see Starr v. Starr, 1 Ohio, 321. Pa.-Allentown Bank v. Beck, 49 Pa. St. 394; Avery v. Street, 6 Watts, 247. S. C.-Kid v. Mitchell, 1 Nott & M. 334, 9 Am. Dec. 702. Va.-Keagy v. Trout, 85 Va. 390, 7 S. E. 329. 46. Avery V. Street, 6 Watts (Pa.), 247; see also other cases in last preceding note. 47. N. Y.-Clute v. Newkirk, 46 N. Y. 684; Savage v. Murphy, 34 N. Y. 508, 90 Am. Dec. 733; Willis v. Willis, 79 App. Div. 9, 79 N. Y. Supp. 1028. Ala.-Miller v. Rowan, 108 Ala. 98, 19 So. 9; Cooper v. Davison, 86 Ala. 367, 3 So. 650; Noble v. Coleman, 16 Ala. 77; Ravisies v. Alston, 5 Ala. 297. Ark.-Apperson v. Burgett, 33 Ark. |