Warner v. Norton et al.

The decisions of the Federal courts are against the validity of such sales-and this is considered "a settled principle in Federal jurisprudence." (2 Kent, 521; Hamilton v. Russell, 1 Cranch, 309.)

This sale was made in Illinois, and the Supreme Court of that State have adopted and adhered to what Chancellor Kent calls the more wise, sound, wholesome, and true doctrine, and have held, in Thornton v. Davenport, 1 Scam., 296, that where possession of goods is permitted to remain with the vendor, the sale is fraudulent, unless the retaining is consistent with the deed. The same doctrine is recognised in Powers v. Green, 14 Illinois, 386; so that there is no debate about the law in that State on this question-the decision of the Supreme Court of the United States and of the Supreme Court of that State concurring.

This change of possession, to be effective, must be actual, and not colorable. (2 Kent Com., 525.)

It must be substantial and exclusive. (2 Kent Com., 518.) It must be an apparent, open, avowed, notorious change of possession. The purpose must not only be honest, but appearances must agree with the real state of the case. (2 Kent Com., 553; Burrell on Assignments, 303.)

This change of possession must also be continued. If Atherton did agree to hold possession of said goods and conduct said business for Anderson, he did not in fact do so; and if he violated his duty to Anderson, that is Anderson's misfortune. Even if Atherton was acting for Anderson in good faith all the time, still Anderson, by his agent, Atherton, permitted the visible possession to remain in Haskins, and the question for the jury ought to have been not merely whether this possession of Atherton was that of Anderson, and not that of Haskins, but was an apparent, visible, open, avowed, substantial change of possession effected.

The court held that an actual change of possession was sufficient; but we insist that such change of possession, to be good against creditors, must be not only actual and bona fide, but must be apparent, avowed, open, and not secret.

Again: plaintiffs claimed Anderson's title to said goods; and to show title in themselves, proved that Anderson made the purchase for James Beman, and for the members of the firm of Norton, Jewett, & Busby.

Who were the members of this firm? The plaintiffs proved on that subject that Cephas Norton, Albert Jewett, and Benj. C. Busby, ostensibly constituted the firm; and that in preparation for this suit, these ostensible partners told witness that there were special partners, and that John C. Phelps was one

Warner v. Norton et al.

of these special partners, and a brother of said John C. was another special partner.

There was no direct evidence that John L. Phelps or Isaac N. Phelps were members of the firm-all that was shown on that subject was, that witness had no personal knowledge, but supposed the parties to the record were the parties in interest.

This constitutes no evidence at all that John L. Phelps or Isaac N. Phelps had any interest in the property. It was essential, to maintain the action, for plaintiffs to show that they all jointly owned the property in question. This point was distinctly made, and yet the court submitted the question to the jury. This was error.

Whether there is any evidence on a point, is a question of law for the court. Whether the evidence is sufficient to convince or satisfy, is a question for the jury. (1st Greenleaf Ev., p. 63, sec. 49.)

The court certifies, that although this point was made, it was not pressed. We reply, that it was not waived; and when such a point is distinctly made and overruled, courtesy requires that it should not be pressed. It is sufficient that it was not waived.

The counsel for the defendants in error made the following points:

The first instruction to the jury was, that they must be satisfied that the plaintiffs named in the declaration had a joint interest in the goods, or they should find for the defendant.

This instruction in form is unexceptionable, and, if there was any evidence of such ownership, was properly given to the jury. The plaintiff in error, as shown by the record, (p. 19,) objected to the admissibility of evidence offered for that purpose, but did not insist upon his objection.

Therefore, he cannot raise the objection here; but, on the contrary, it must be held waived; for, in the case of Walton v. United States, already cited, the court say: "It is true that the bill of exceptions states that the evidence was objected to at the trial; but it is not said that any exception was then taken to the decision of the court; so that, in fact, it might be true that the objection was made, and yet not insisted on by way of exception.'

In our case, the record shows that the objection was not insisted on.

Again: in the case of Phelps v. Mayer, already cited, the court say, in substance, that objections to evidence must be insisted on by way of exception, for, if this is done, the opposite party may then supply the defect. (See, also, Hinds's Lessee . Longworth, 11 Wheaton, 199.)

Warner v. Norton et al.

Therefore, the objection to the evidence being waived, by not being insisted upon by way of exception, no objection can now be made, and therefore there was evidence to be left to the jury on the point of ownership

But, if there was not, that question cannot be raised upon an instruction formally right, but must have been specially presented in the court below; for, in Garrard v. Reynolds's Lessee, 4 Howard, 123, it was held, that whether there was evidence to be left to a jury, was a question which could not be considered by this court, unless the opinion of the court below had been asked thereon, and an exception regularly taken.

Therefore, in our case the question cannot be here raised. The substance of all the other instructions is this:

The court having declined to charge the jury that the sale was fraudulent in law, left it to them, under all the circumstances, to say whether the sale was or was not made to delay, hinder, or defraud creditors; telling them that if the sale was secret, suspicion was thrown upon it thereby, but that it did not thereby become fraudulent in law; and, leaving them to decide as to the possession after the sale, instructed them that if the possession of Atherton was the possession of the plaintiffs, (defendants in error,) the sale was not necessarily fraudulent.

Now, there could be no possible ground for the judge below declaring the sale void in law. Had Haskins, the vendor, remained in possession, the case would have been like Edwards and Harben in the King's Bench, and Hamilton and Russell in this court; but it is certain that Haskins did not personally have possession after the sale, for he left the town, ceased altogether to reside there, and was never there for any purpose until after the taking of the goods by the plaintiffs in error. It was proved that an inventory of the goods was taken, the price agreed upon and paid, the door-key given to the agent of the defendants in error, and by him delivered to Atherton, the former salesman of Haskins, who undertook to hold for the plaintiffs in error. Here, then, was evidence of a change of possession. All might indeed be illusive and fraudulent; but that was a question for the jury under all the circumstances of the case; and until that question was decided, no other than a hypothetical instruction could be given.

And the court did instruct the jury, in effect, that if the possession after the sale was in Haskins, the sale was necessarily fraudulent.

To this instruction the plaintiffs in error cannot object, though the defendants in error, had the verdict been against them, would have had just cause of complaint.

Warner v. Norton et al.

For if it were necessary to our case, and were allowable for us to question any decision of this court, we should contend that the rule laid down in Hamilton v. Russell, (1 Cranch, 310,) founded upon Edwards v. Harben, in 2 Term Reports, cannot be supported. In England, Edwards and Harben has been long since overruled; first questioned, then impugned, and finally denied. The cases fully justify the position of the very learned Mr. Smith, in his Leading Cases, (1 vol., p. 41, of 4 Amer. ed.,) in these words:

"It may therefore be safely laid down, that, under almost any circumstances, the question, fraud or no fraud, is one for the consideration of the jury;" and again, page 40: "Though in Edwards v. Harben it was laid down, in the express terms above stated, that an absolute sale, without delivery of possession, was in point of law fraudulent, the tendency of the courts has lately been to qualify that doctrine, and leave the whole circumstances of each case to a jury, bidding them decide whether the presumption of fraud deducible from the absence of possession shall prevail."

And the admission of plaintiff's counsel, (whose interest it was to maintain the doctrine of Edwards and Harben,) in Wood r. Dixie, 7 Q. B., 894, is in these words: "Some doubt has existed whether upon certain facts, as, for instance, want of possession, fraud is a question of law to be decided by the court, or of fact for the jury; but it seems to be now established that the question is for the jury."

This position of Mr. Smith is further supported by Martindale v. Booth, 3 B. and Ad., 498, in which Parke, J., says: "The dictum of Buller, J., in Edwards v. Harben, has not been generally considered in subsequent cases to have that import. The want of delivery is only evidence that the transfer was colorable.' It is fully sustained by the numerous cases cited by him, and especially by Benton v. Thornhill, 2 Mar., 427, and Latimer v. Batson, 4 Barn. and C., 652, in the former of which, Ld. Ch. J. Best dissented from the doctrine of Edwards v. Harben, when assumed by counsel; and in the latter, the court notices and in effect repudiates, as furnishing a general rule, what was said by Lord Ellenborough in Wordall v. Smith, 1 Camp., 332.

(These two cases also show that the question of possession under the circumstances of our case was for the jury, and not for the court, and was therefore properly left to them by the court below.)

It may therefore be assured with confidence, that the stringent rule laid down in Edwards v. Harben is entirely exploded in England, and there wart of possession by the vendor is only

Warner v. Norton et al.

a badge of fraud to be considered by the jury. Why should a rule adopted by this court from Edwards v. Harben be here maintained, after the foundation of the rule has been utterly demolished in the country from which it was taken? It does not tend to expose and defeat fraud, any more than to disappoint an honest purchaser. Every case of real fraud will be sufficiently reached by making want of possession a badge or evidence of fraud, according to Twyne's case, whilst an indiscriminating disallowance of all sales which are not followed by possession must in many cases do injustice.

But whether the rule in Edwards v. Harben be maintained in all its strictness or not, is in our case immaterial. Here, possession was taken by the purchaser. It has been so found by the jury. There was evidence proper to be left to the jury of that fact; but if there was not such evidence, no objection can be made therefor, because there was no special prayer for an instruction that there was not such evidence as required by this court in the before-cited case of Garrard v. Reynolds's Lessee, 4 How., 123; and consequently the whole case was for the jury on the question of fraud.

As to the alleged secrecy of the sale, the court instructed the jury that secrecy threw suspicion on the transaction, but did not make it fraudulent in law.

Now, this is giving to secrecy precisely the effect properly belonging to it according to Twyne's case, dona clandestina sunt semper suspiciosa. In Twyne's case, the judges in the Star Chamber, passing on fact as well as law, gave what effect they pleased to the suspicious secrecy, with the other circumstances, in drawing the conclusion to which they came, that the sale made by Twyne was fraudulent. In our case, the secrecy was left, with the other circumstances, to the jury, to draw the inference which upon the whole evidence was in their judgment just. No exception can be taken to this, for secrecy has never been by any judicial decision withdrawn from the place it occupies amongst the other signs or badges of fraud, and dignified, like want of possession, with an unexplainable and resistless legal effect.

Of course, the exception for error in the refusal to grant a new trial is merely idle, after the decisions of this court in Marine Insurance Company of Alexandria v. Hodgson, 6 Cr., 206; Barr v. Grat's Heirs, 4 Wheat., 213; and Blount's Lessee v. Smith, 7 Wheat., 248.

Mr. Justice McLEAN delivered the opinion of the court. This case is brought before us by a writ of error from the northern district of Illinois.