in his own name, registration in his own name, etc., this is clothing the other with such indicia of title that the true owner cannot assert his title against third persons acting on the faith of the apparent ownership.

Let us now suppose the case in which the owner, besides conferring possession, also permits the possessor to hold documents of title in his own name, that is, bills of lading, warehouse receipts, etc. In such a case, the true owner is estopped to set up his title against those who deal with the holder of such documents as the apparent owner, and creditors can seize such goods to satisfy their claims.75

C. When True Owner Prevented by Statute from

Asserting Title.

Sec. 70. IN GENERAL. The law may prevent an owner from asserting his title; and statutes are in force in respect to (1) sales in which the seller retains possession; (2) conditional sales; (3) bulk sales of entire stock in trade; (4) mortgages and pledges by factors; (5) chattel mortgages.

The different states have passed various laws for the protection of creditors and purchasers, providing that such parties may ignore the real ownership in various cases, or may ignore it in such cases unless the rights of the true owner are put on record where they may be known by all men. The chief of these are below briefly considered.

Sec. 71. EFFECT OF RETENTION BY SELLER AFTER SALE. If after a sale of goods, absolute in form, the seller continues in their possession, this is treated, in

75. Calais Steamboat Co. v. Scudder, 2 Black (U. S.) 372.

some states as in itself constructive fraud, rendering the sale void as to creditors or purchasers from the seller and in others as evidence of fraud, subject to rebuttal.

It has long been settled law that the retention by the vendor of goods sold in an absolute sale is at least evidence of fraud,76 and in some jurisdictions it is held to constitute fraud, per se, no matter how innocent might have been the intention of the parties; this, of course, not as between the parties themselves, but as to creditors of the vendor, and purchasers from him of the goods formerly sold. The buyer who allowed such retention could not assert title as against the creditors of the seller or anyone to whom he had resold such goods. A qualification has been made that if the contract in terms provides for such retention and there is no actual fraud, the case is taken out of the rule. But in such a case the clause must be for some honest purpose and not merely to avoid the rule, and if for purposes of security, would usually have to be recorded, being in effect a chattel mortgage.

Delivery need not consist in removal. If, for example, one buys a stock of goods, he may take possession by merely assuming control. It is a sufficient change of possession if the acts of control are of an outward, exclusive character, sufficient to notify observers that a change has taken place. There may still be a change of possession though the seller's employees are retained by the buyer. What amounts to change of possession is a question of fact. If the article purchased is of a cumbersome character, not subject to immediate and easy

76. Twyne's Case, 3 Coke, 8ob.

77. Wilson v. Walrath, 103 Minn. 412; Ticknor v. McClelland, 84 Ill. 471.

removal, and constructive delivery is made, as by delivery of keys, that will for a reasonable time be sufficient.78

Sec. 72. CONDITIONAL SALES. A conditional sale of goods wherein the seller retains title for purposes of security in most jurisdictions must be recorded or the condition is void as to innocent purchasers and creditors. Otherwise in most, but not all of the states, the owner of the goods may assert his title against such purchasers and creditors.

In most states prior to the passage of recording laws covering that subject a conditional sale of goods deprived the seller of no rights to assert his title against purchasers and creditors of the purchaser until by the performance of the condition the buyer acquired his title. This law has become modified in most states by the recording laws requiring such transactions to be recorded just as chattel mortgages must be recorded. But in some states

78. In the following states retention is considered as prima facie evidence of fraud, rebuttable by evidence that the sale was actually for value and in good faith. Alabama, Arizona Arkansas, Delaware, Florida, Georgia, Indiana, Kansas, Louis iana, Michigan, Minnesota, Mississippi, Nebraska, New Jersey New York, North Carolina, North Dakota, Ohio, Oregon, Rhod Island, South Carolina, Tennessee, Texas, Virginia, West Vir ginia, Wisconsin.

In the following states retention of possession is conclusively presumed to be fraud. California, Colorado, Connecticut. Idaho, Illinois, Iowa (unless recorded) Kentucky, Maine, Maryland (unless recorded), Massachusetts, Missouri, Montana, Nevada, Oklahoma, Pennsylvania, South Dakota, Utah, Vermont, Washington (unless recorded). In Mexico and Wyoming not clearly established.

By the Sales Act (Sections 25 and 26) a seller who is allowed to continue in the possession of the goods sold may give a good title to a vendee as though having express authority to sell them and creditors have much the same rights in such states, as heretofore.

such transactions though good between the parties, estop the seller to assert his title against the creditors or purchasers of the purchaser. Unless the recording laws in such states comprehend within their terms a conditional sale, even recording will not help and the only safe device is a chattel mortgage.79

If a contract of conditional sale is called a "lease" or by any other name, the courts will regard its true intent rather than its mere form.

Sec. 73. BULK SALES OF ENTIRE STOCK IN TRADE. Bulk sales by a dealer of his stock in trade are forbidden by statute in some states unless there is a certain notice given to creditors, or recordation, or both.

Frauds upon creditors are often perpetrated by means of a sale of the entire stock in trade of a tradesman to one who has actual or constructive notice of the fraud or who may even be in connivance and not actually a purchaser, and statutes in some states have been passed providing that bulk sales shall not be good except upon notice to creditors, or upon recording the transaction, or both.80

79. In the following states, one who sells by conditional sale may protect himself by recording the contract: Alabama, Arizona, Colorado, Connecticut, Florida, Georgia, Iowa, Kansas, Maine, Michgan, Minnesota, Missouri, Montana, Nebraska, New Hampshire, New Jersey, New York, North Carolina, North Dakota, Ohio, Oklahoma, South Carolina, Texas, Vermont, Virginia, Washington, West Virginia, Wisconsin and Wyoming. If recording laws do not cover conditional sales, recording them is a nullity. Gilbert v. National Cash Register Co., 176 Ill. 288. 80. Bulk sales laws are in force in Alabama, Arizona, California, Colorado, Connecticut, Delaware, District of Columbia, Florida, Georgia, Illinois, Idaho, Indiana, Iowa, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Montana, Nebraska, Nevada, New Hampshire, New

Sec. 74. TRANSFERS AND PLEDGES BY FACTORS. Factors' acts have been passed in a number of states to protect those who deal with factors and consignees to the amount of their advances.

A factor is one to whom is given the possession of goods to sell them for the owner. He is more popularly referred to as a commission merchant. His authority is very large and he often deals with respect to such goods in his own name. But he has no authority to pledge such goods for his own debts, even though such pledgee deal with him under the assumption that he is the owner. Statutes in a number of states have been passed to protect pledgees, lienors and purchasers to the extent of their advances. These factor's acts differ in their provisions to some extent, but they are all for the purpose of protecting parties dealing with a factor to whom goods have been entrusted.81

Sec. 75. CHATTEL MORTGAGES. One who buys chattels or acquires any lien upon them is protected against a prior mortgagee of such chattels unless such mortgage has been duly recorded or possession has been taken by the mortgagee.

In all the states a chattel mortgagee is not protected against subsequent parties dealing with the owner of the goods unless he either takes possession or records the mortgage.

Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, Tennessee, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin and Wyoming.

81. Factors acts are in force in Maine, Maryland, Massachusetts, New York, Ohio, Pennsylvania, Rhode Island and Wisconsin.