conveyance of property, by a person at the time largely indebted, especially when this indebtedness is about to ripen into judgments, and his subsequent possession and continued enjoyment of the property, create such a presumption of fraud as to require clear and satisfactory proof of its fairness. Where, after an absolute conveyance by a debtor in failing circumstances, he remains in possession of the land, without contract and without accounting for its use, these facts are evidence of fraudulent intent.49 In some cases, it has been held that a conveyance of real estate is fraudulent per se, and void as to creditors, if the grantor continues to hold possession of the premises.50 In other cases the retention of possession by the grantor of land is held to be prima facie evidence that the conveyance was fraudulent.51 Possession of land and receipt by the grantor of the profits after an absolute conveyance is evidence of fraud, unless such possession be consistent with the terms and object of the deed, or the character of it be openly and explicitly understood.52 The presumption of fraud is stronger where the conveyance was made to near relatives of the grantor.53 The provisions of the New York statutes declaring sales or mortgages of chattels void as against creditors, when not filed or followed by actual and continued change of possession, do not apply to leases of real estate.54 Vt.-Hart V. Farmers' & Mechanics' Bank, 33 Vt. 252. 51. Cooper v. Davidson, 86 Ala. 367, 5 So. 650; Perkins v. Patten, 10 Ga. 241; Van Hook v. Walton, 28 Tex. 59; Hancock v. Horan, 15 Tex. 507. 52. Alexander v. Todd, Fed. Cas. No. 175, 1 Bond, 175; Noble v. Coleman, 16 Ala. 77. 53. Dennis v. Ball-Warren Commission Co. (Ark. 1903), 77 S. W. 903; Perrine v. Perrine (N. J. Ch. 1901), 50 Atl. 694. 54. Booth v. Kehoe, 71 N. Y. 341. ཀ § 39. Growing crops.-What is delivery depends on the circumstances of the sale. If one sells a field of corn standing on his farm, and the buyer does not commence to harvest it, nor otherwise visibly to take charge of the corn or control the field on which it stands, the actual possession is not changed. Obviously there can be no actual delivery of standing or growing crops without putting the vendee in possession of the land itself.55 Hence, the rule that possession must accompany the title, or a sale will be void as to subsequent purchasers and creditors of the vendor, does not extend to a growing crop, which is not susceptible of delivery, and which cannot, without destroying it, be removed at the time.56 Growing periodical or annual crops, produced by the industry of the owner of the soil, fructus industriales, are not goods and chattels within the meaning of the statute of frauds, of which a sale, in order to be valid as against creditors of the vendor, must be followed by an immediate delivery and continued change of possession, and not being susceptible of manual delivery until harvested and reduced to actual possession, they pass by conveyance from the necessity of the case.57 The purchaser of standing crops need not take actual manual possession thereof until it is time to harvest them,58 and a suffi 55. Noble v. Smith, 2 Johns. (N. Y.) 52, 3 Am. Dec. 399; Smith v. Champney, 50 Iowa, 174, possession is changed within the meaning of the statute when the instrument evidencing the sale is recorded; Raventas v. Green, 57 Cal. 254, an unripe growing crop may be levied upon by attachment, and the levy is valid if the statutory notice and copies of the writ are served, on defendant, although the sheriff does nothing further until the crop is ripe, when he gathers it; Brantom v. Griffits, 2 C. P. D. 212, 46 L. J. C. P. 408, 36 L. T. Rep. N. S. 4, 25 Wkly. Rep. 313. 56. Morton v. Ragan, 68 Ky. 334. The sale of a growing crop of tobacco, paid for by the vendee, which the vendor was to cut and cure, is not constructively fraudulent as to creditors merely because the vendor retained possession. Cummins V. Griggs, 63 Ky. 87, 87 Am. Dec. 482; Robbins v. Oldham, 62 Ky. 28. 57. O'Brien v. Ballou, 116 Cal. 318, 48 Pac. 130; Davis v. McFarlane, 37 Cal. 634, 99 Am. Dec. 340; Quiriaque v. Dennis, 24 Cal. 154; Bernal v. Hovious, 17 Cal. 541, 79 Am. Dec. 147; Bours v. Webster, 6 Cal. 661. 58. Ticknor v. McClelland, 84 Ill. 471; Thompson v. Wilhite, 81 Ill. 356; Graff v. Fitch, 58 Ill. 373, 11 Am. Rep. 85; Bull v. Griswold, 19 59 cient change of possession of a crop purchased while growing takes place where the purchaser immediately after the crop is harvested puts it in sacks marked with his initials in a pile by itself. Where a lessee conveyed to his lessor, by an instrument executed with all the formalities of a lease, all the crops which might be grown upon the leased premises during the term, a delivery of possession of the crops, after they were harvested, was not necessary to make the lessor's title to them valid, as against attaching creditors.60 Where a field of growing wheat is sold, the storage of the wheat in sheaf in the seller's barn, and a delay of weeks, will not prevent constructive possession being in the buyer, or operate as a fraud on creditors so as to render the wheat liable to execution as the property of the seller. A purchaser of a growing crop may maintain trespass against a subsequent lessee of the premises on which the crop is growing, who interferes with his rights to remove the crop." But the sale of a growing crop standing in the field, where the possession is permitted to remain with the vendor for his own benefit and where only a portion of the crop not particularly described or bounded was the subject of the sale, is fraudulent per se and void as to creditors and subsequent purchasers. As we have said, what is a sufficient delivery or transfer of possession depends upon the circumstances of the sale. Growing perennial crops, fructus Ill. 631. The buyer of a large growing crop of corn may have the vendor crib it on the premises, and the quantity then be ascertained and agreed upon. This will be a valid delivery as against the vendor's creditors. Vaughn v. Owens, 21 Ill. App. 249. 59. Ticknor v. McClelland, 84 Ill. 471. 60. Bellows v. Wells, 36 Vt. 599. 61. Emery v. Scarlett, 8 Pa. Co. Ct. 123. 62. Dutton v. Wetmore, 10 Pa. Super. Ct. 530. 63. Davis v. Shepherd, 87 Ill. App. 467. A mortgage of growing grain, which provided that the mortgagor was to care for, cut, thresh and sell the grain, and the mortgagee was to be paid out of the proceeds, was fraudulent, as there was no change of possession. Welsh v. Bekey, 1 Pen. & W. (Pa.) 57. 64. State v. Durant, 53 Mo. App. 493, there is no sufficient delivery of a crop of standing corn, where the bargain therefor is made at another place, and the purchaser first visits the place where the corn is located naturales, the natural products of the land, such as grass, trees, and the emblements, are incident to the ownership of the realty, and title to them will not pass by a constructive delivery or until they are harvested and delivered, as against the vendor's creditors, 65 40. Burden of proof.-In a contest with creditors who seek to set aside as fraudulent a sale by the debtor, where the sale was not followed by an immediate delivery and a continued change of possession, the burden is upon the grantee to show that the sale was made in good faith and without any intent to defraud creditors." more than a month after the bargain, and merely walks through it, without any other act to give notoriety to the sale, especially where the contract provides that the seller shall gather the corn and feed it to the purchaser's cattle; State v. Casteel, 51 Mo. App. 143, where the purchaser of two patches of standing corn, to be penned or thrown into piles at his choice, rode through both patches, and made a substantial payment on each, there was a good change of possession, as against a creditor of the seller levying after one patch had been cut and partly shocked. 65. Stone v. Peacock, 35 Me. 385; Lamson v. Patch, 87 Mass. 586, 81 Am. Dec. 765, plucking a handful of half-grown grass, and delivering it to a purchaser in a field, upon the sale of the grass, with an agreement that the vendor shall cut it for the vendee at the proper time, is not a constructive delivery of the hay, as a chattel, which will pass a title to it as against third persons. 66. N. Y.-Siedenbach v. Riley, 111 N. Y. 560, 19 N. E. 275. Ala.-Teague v. Bass, 131 Ala. 422, 31 So. 4. Mich.-Angell v. Pickard, 61 Mich. 561, 28 N. W. 680. Miss.-Comstock v. Rayford, 12 Sm. & M. 369. Compare Summers v. Roos, 42 Miss. 749, 9 Am. Dec. 653. Mo.-Albert v. Besel, 88 Mo. 150. Neb.-Snyder v. Dangler, 44 Neb. 600, 63 N. W. 20. N. J.-Beakley v. Nelson, 56 N. J. 160. Tex.-Mills v. Walton, 19 Tex. 271. Va.-Curd v. Miller, 7 Gratt. 185. W. Va.-Colston v. Miller, 55 W. Va. 490, 47 S. E. 268. See also cases cited Retention of possession as evidence of fraud, chap. XII, § 1, supra; Evidence where there is no change of possession, chap. XVII, § 11, infra. CHAPTER XIII. FRAUDULENT KNOWLEDGE AND INTENT. Section 1. Intent of grantor to hinder, delay or defraud creditors. 3. Accomplishment of purpose; knowledge and intent of grantee. 5. Effect of want of knowledge or notice where transfer is voluntary. 7. Effect of proper application of proceeds. 8. Knowledge of co-grantee. 9. Effect of knowledge or notice where transfer is to a creditor; participation in fraudulent intent where debt is sole consideration. 10. Participation in fraudulent intent where debt is only part of consideration. 11. Recital of false consideration. 12. When creditor's intent is immaterial. 13. Participation of trustee imputable to beneficiary. 14. Participation of one creditor imputable to all. 15. Time when knowledge or notice is acquired. 16. Duty to see to application of proceeds of property. 17. Constructive or implied notice as equivalent to actual knowledge. 18. Knowledge of facts to put on inquiry. 19. Mere suspicion. 20. Matters of common or general knowledge. 21. Knowledge or notice of indebtedness or insolvency of grantor. 22. Inadequacy of consideration. 23. Sale of business and entire stock of goods. 24. Knowledge or notice of the pendency of suits against the grantor. 25. Knowledge that debtor is about to abscond. 26. What inquiry is sufficient. 27. Examination of books and papers. 28. Knowledge of, or notice to, agent. 29. Knowledge or notice implied from relation of parties. 30. Transactions founded on consideration. Section 1. Intent of grantor to hinder, delay, or defraud creditors. To constitute a transfer of property fraudulent and render it void as against creditors, it must have been made, as a general rule, with intent on the part of the debtor to defraud, |