ord in this case shows that no assignee had been appointed when the alleged offer to redeem was made, which affords a demonstration that the charge of the court that he had ceased to be the owner of the land and thereby lost his right to redeem was improper, being equivalent to a direction to the jury to find a verdict for the plaintiff. Wright v. Johnson, 4 Nat. Bk. Reg., 627; S. C., 8 Blatchf., 150; Bump, Bankruptcy, 7th ed., 22. the jury that their verdict must be for the plaintiff. Such an offer to redeem it was held, in the case of Bennett v. Hunter, 9 Wall,338 [76 Ú. S., XIX., 696], might be made by the owner or by an agent or by any person willing to act for the party interested, upon the ground that an act done by a third person for the benefit of another is valid, if ratified either expressly or by implication; and that such ratification will be pre sumed in furtherance of justice. Since that Other questions were discussed at the bar, but time it has also been decided, that if the tax com- the court is of the opinion that it is not necessa missioners announce that they will not receivery to decide any other question at this time. the payment of the taxes in such cases unless tendered by the owner, a formal offer by another to pay is unnecessary, that it is enough if a relative of the owner went to the office of the commissioners to see after the payment of the tax, even though he made no formal offer to pay, because such an announcement is in effect a waiver of a tender by the commissioners, they having declined to receive payment unless the tender is made by the owner in person. Tracey v. Irwin, 18 Wall., 550 [85 U. S., XXI., 786]. Judgment reversed and the cause remanded, with directions to issue a new venire. Cited-104 U. S., 230; 8 Ben., 63; 9 Ben., 431. ANDREW L. ROBINSON ET AL., Appts.. v. THOMAS M. ELLIOTT, Assignee of J. T. (See S. C., 22 Wall., 513-527.) -question of law. Apply that rule to the case and it is clear that the evidence introduced by the defendants tending to show an offer to redeem the premises Mortgage of chattels, when valid-when invalid should have been submitted to the jury under proper instructions. Instructions of the kind, however, would have been useless after the jury had been told that the defendant ceased to be the owner of the land, and that he lost his right to redeem the same when he was adjudged a bank rupt, it appearing that the decree was entered be fore the offer to redeem was made, as assumed by both parties. Enough appears in the language of the 14th section of the Bankrupt Act to demonstrate the proposition that the instruction of the circuit court in that regard was incorrect, nor is the question affected in the least by the fact that the same section provides that such assignment or conveyance shall relate back to the commencement of the proceedings, as the instrument of assignment cannot operate either retrospective ly or prospectively before it is executed. Until an assignee is appointed and qualified and the conveyance or assignment is made to him, the title to the property, whatever it be, remains in the bankrupt, which is the plain meaning of the 14th section of the Bankrupt Act. Sutherland v. Davis, 42 Ind., 28. Different regulations in that respect were enacted in the former Bankrupt Act, as the 3d section of that Act provided that all the property and rights of property, of every name and nature of the bankrupt, not excepted from the operation of the Act, * * shall, by mere operation of the law ipso facto, from the time of such decree, be deemed to be devested out of such bankrupt, without any other act, assignment, or other conveyance whatsoever." 5 Stat. at L., 443; Ex parte Newhall, 2 Story (C.C.), 362; Oakey v. Bennett, 11 How., 44. Unlike the old Act, the existing Act makes it the duty of the court, or, where there is no opposing interest, of the register, by an instrument under his hand, to assign and convey to the assignee all the estate, real and personal, of the bankrupt, and the rule is that such a conveyance or assignment devests the bankrupt of the whole of his property, except what is exempted from the operation of the Bankrupt Act, and vests the title to the same in the assignee, but the rec 1. Under the Indiana Statute, which declares mortgages of goods unaccompanied by delivery invalid, unless recorded, and that the question of which simply allows the mortgagor to retain the fraudulent intent is a question of fact, à mortgage possession and use of the property until breach of the condition is, when duly recorded, prima facie valid. 2. But a mortgage of a stock of goods, containing a provision authorizing the mortgagor to retain possession for the purpose of selling in the usual course of trade, and to use the money thus obtained to replenish his stock, is invalid, and the court can, as a matter of law, pronounce it void. 3. Where the mortgage on its face shows that the legal effect of it is to delay creditors, the law imputes to it a fraudulent purpose. [No. 417.] Submitted Dec. 21, 1874. Decided Feb. 8, 1875. NOTE.-Chattel mortgage allowing possession and sale of goods; whether void or not. A mortgage of chattels is void as to creditors when it appears on its face or by extrinsic evidence that the mortgagee gave the mortgagor unlimited power to dispose of the mortgaged property for his own use. Orton v. Orton, 7 Or., 478; S. C., 33 Am. Rep., 717; Davenport v. Foulke, 68 Ind., 382; Voorhis v. Langsdorf, 31 Mo., 451; Mobley v. Letts, 61 Ind., 11. A chattel mortgage which by its conditions permits the mortgagor to remain in possession of the property and to deal with it as his own, disposing of it by sale in due course of trade, is fraudulent in law as to the creditors of the person making the solutely null and void as to them, without refersame and as to subsequent purchasers, and is abence to the bona fides of the mortgage debt or the intention of the mortgagor as to fraud. If the of the mortgage, but it is so understood or agreed by power of disposition does not appear upon the face the parties at the time the mortgage is executed, it is equally void. Collins v. Myers, 16 Ohio St., 547: bey. 7 Ohio St., 218; Griswold v. Sheldon, 4 N. Y Freeman v. Rawson, 5 Ohio St., 1; Harman v. Ab 581; Twyne's case, 3 Co., 80; Ryall v. Rowles, 1 Ves, The case is fully stated by the court. Messrs. A.L. Robinson, in person, and Asa Inglehart, for appellants: In Maple v. Burnside, 22 Ind., 139, the Supreme Court of Indiana has decided the precise question under consideration. The main question before the court was, whether Maple, the attachment defendant, had sold, conveyed or otherwise disposed of his property with the intent to cheat, hinder or delay any of his creditors. The fact of fraud relied upon was the making of a chattel mortgage, permitting the mortgagor to remain in possession of the goods and deal with them as his own. It will be observed, when we come to examine counter authority, that the cases relied upon by the appellees hold that it is totally in different whether the permission to deal with the goods be as in the case at bar, or whether the permission be given outside the mortgage, as in the case we are referring to. In Chissom v. Hawkins, 11 Ind., 316, also in Coe v. McBrown, 22 Ind., 252, the court not only holds good a mortgage upon after acquired property, but, in the latter, holds it good upon firewood in possession of the mortgagor, which he was using and consuming as his own, the Supreme Court holding that a lien by way of mortgage for property not in esse, is good in equity and will be enforced when the property comes in esse, citing the former case, Sm. Merc. L., 693, and Mitchell v. Winslow, 2 Story, 630, of which more hereafter. This, of course, establishes the position that if the mortgage be not absolutely void, as we contend it is not, it is valid, as well as to after acquired property, as to that which was owned by the mortgagor when the mortgage was made. Taking into consideration the different statutory provisions of the several States, the preponderance of authority is with us outside of the State of Indiana. We will first briefly refer to the cases which sustain that mortgage in other States. Mitchell v. Winslow, 2 Story, 630–648. Sr., 348; Addington v. Etheridge, 12 Gratt., 436; Ball v. Slafter, 26 Hun, 353; Smith v. Cooper, 27 Hun, 565; Bainbridge v. Richmond, 17 Hun, 391; McLachlan v. Wright, 3 Wend., 348; Drover v. McLaughlin, 2 Wend., 596; Wood v. Lowry, 17 Wend., 492; Stoddard v. Butler, 20 Wend., 507; Edgell v. Hart, 13 Barb., 380: Edgell v. Hart, 9 N. Y., 213; Gardner v. McEwen, 19 N. Y., 123; Mittnacht v. Kelly, 3 Keyes, 407; Russell v. Winne, 47 N. Y., 591; Southard v. Benner, 72 N. Y., 424; Brackett v. Harvey, 91 N. Y., 214; Coburn v. Pickering, 3 N. H., 415; Ranlett v. Blodgett, 17 N. H., 298; Putnam v. Osgood, 52 N. H., 148; Horton v. Williams, 21 Minn., 187; Place v. Langworthy, 13 Wis., 629; Steinart v. Denster, 23 Wis., 136; Bishop v. Warner, 19 Conn., 460; Davis v. Ransom, 18 Ill., 396; Barnet v. Fergus, 51 Ill., 352: Dunning v. Mead, 90 Ill., 376; Walter v. Wimer, 24 Mo., 63; Stanley v. Bruce, 27 Mo., 269; Armstrong v. Tuttle, 34 Mo., 432; Lodge v. Samuels, 50 Mo., 204; White v. Graves, 68 Mo., 218; Welsh v. Bikey, 1 Pa., 57; Homer v. Geesaman, 17 S. & R., 251; Williams v. Lord, 75 Va., 390; Mann v. Flower, 25 Minn., 500; Lund v. Fletcher, 39 Ark., 325; S. C., 43 Am. Rep., 270. It is, however, held in some States that a chattel mortgage which permits the mortgagor to continue in possession and sell the goods in the ordinary course of business, is not void per se; the power to sell is only evidence of a fraudulent intention, to go to the jury, who are upon the facts to determine the question of fraud. Oliver v. Eaton, 7 Mich., 108; Gay v. Bidwell, 7 Mich., 519; Leland v. Collver, 34 Mich., 418; Stedman v. Vickery, 42 Me., 132; Deering v. Cobb, 74 Me., 332; S. C., 43 Am. Rep., 596; Cheatham v. Hawkins 76 N. C., 335; 80 N. C., The law of recording chattel mortgages in Maine and Indiana is the same. In Abbott v. Goodwin, 20 Me., 408, the court decided that if the mortgagor sell the goods, and with the proceeds thereof purchase other goods, these last represent the first and are substituted for them, and are equally subject to the lien of the mortgages thereon, citing Macomber v. Parker, 14 Pick., 497; see, also, Arnold v. Mower, 49 Me., 561; Stedman v. Vickery, 42 Me., 132, 25; State v. Wilson, 42 Me., 8. In Oliver v. Eaton, 7 Mich., 108, the provisions of the mortgage and very many of the facts were similar to the case at bar. Campbell, J., says: "By leaving such case to the jury, each instrument is made to stand upon its own actual merits; which is much safer in questions of fraud, whose manifestations are infinitely various, than the adoption of fixed rules, which must fail to meet numerous cases. In Gay v. Bidwell, 7 Mich., 520, this doctrine is held and numerous cases cited by the court. Campbell, J., in delivering the opinion of the court, says: "To hold that a merchant cannot mortgage his goods without closing his doors, would be to hold that a chattel mortgage is worthless." In Torbert v. Hayden, 11 Ia., 435, the court, Lowe, Ch. J., says that "Naked possession without the power of use or sale, would be a barren right equally productive of mischief to both parties, tying the hands of the debtor, and suppressing all effort to realize from the property, money requisite to extinguish the debt.' Hughes v. Cory, 20 Ia., 399. The Statutes of Massachusetts upon the subject of chattel mortgages are substantially like those in Indiana. The decisions, however, are not entirely in conformity with the rulings of Indiana upon the points under discussion. There are two exceptions: the Massachusetts authorities hold that property not in esse or after acquired property does not pass by a mortgage, but that as to 161; Bynum v. Miller, 89 N. C., 393; Hughes v. Cory, 20 Iowa, 399; Smith v. McLean, 24 Iowa, 322; Clark v. Hyman, 55 Iowa, 14: Gregory v. Whedon, 8 Neb., 373; Hedman v. Anderson, 6 Neb., 392; compare Turner v. Killian, 12 Neb., 580; Williams v. Winsor, 12 R. I., 9; Morris v. Stern, 80 Ind., 227; Berghoff v. McDonald, 87 Ind., 549; McFadden v. Fritz, 90 Ind., 590; Hirshkind v. Israel, 18 S. C., 157; Cobb v. Farr, 16 Gray, 597; Fletcher v. Powers, 131 Mass., 333; Tickner v. Wiswall, 9 Ala., 305; Price v. Mazange, 31 Ala., 701; Frankhouser v. Ellett, 22 Kan., 127; S. C., 31 Am. Rep., 171; Van Meter v. Estill, 78 Ky., 456; Rose v. Bevan, 10 Md., 466. Mortgage of an entire stock of goods, which includes all others of a like nature that may be put in the store and be on hand when default is made, the mortgagor remaining in possession and selling in the usual course of business, and making purchases to replenish the stock, is fraudulent as to creditors. Harmon v. Hoskins, 50 Miss., 142; Simmons v. Jenkins, 76 Ill., 479; Putnam v. Osgood, 51 N. H., 192. A mortgage of goods allowing the mortgagor to retain possession of them, and to sell them "in the usual retail way," but requiring him to "pay over the money received therefor to the mortgagee as the goods are sold," is, upon its face, a valid mortgage. Kleine v. Katzenberger, 20 Ohio St., 110; S. C., 5 Am. Rep., 630. Mortgage of all goods "now in the store occupied" by the mortgagor, supplemented by parol proof of what goods were in the store at the execution of the mortgage, is sufficient to pass the property. Burditt v. Hunt, 25 Me., 419; S. C., 43 Am. Dec., 289. it, such a mortgage is void, and that possession | this, uses this language: "It (the mortgage) is in the mortgagor is a badge of fraud. certainly invalid as to the after acquired property," citing cases in New York and Wisconsin. In Massachusetts, we find that Jones v. Richardson, 10 Met., 481, furnishes a clear exposition of the law on this subject. The cases of Briggs v. Parkman, 2 Met., 258; Jones v. Huggeford, 3 Met., 515; Barnard v. Eaton, 2 Cush., 294; Codman v. Freeman, 3 Cush., 306, are leading cases. Briggs v. Parkman is very much in point here. It was a mortgage to secure payment thereof, of the principal part of the said Loring's stock in trade in Boston, he to continue in possession, and make sale of said mortgaged stock in the ordinary course of business and apply the proceeds to his own use. Mr. Justice Wilde, said: "Such a possession is only a badge or presumptive evidence of fraud. On this question there have been many conflicting decisions in other courts, but the question is now settled in the State of New York, in conformity with the doctrine held in this Commonwealth, and such appears to be the doctrine as now held in England. Bissell v. Hopkins, 3 Cow.. 166; Seward v. Jackson, 8 Cow., 406; Kid v. Rawlinson, 2 Bos. & P., 59; Martindale v. Booth, 3 B. & Adol., 498; Hinde v. Longworth, 11 Wheat, 199; Arundell v. Phipps, 10 Ves., 140; Latimer v. Batson, 4 Barn. & C., 652. In the case of Bissell v. Hopkins it was settled, after an examination of the principal authorities, that the possession of goods remaining in the vendor after sale, was only presumptive evidence of fraud, which might be explained by other evidence. Messrs. William E. Niblack, J. M. Shackelford, Azro Dyer, George Palmer and R. D. Richardson, for appellee: The general doctrine is, that the mortgage is void as to after acquired property, except where the mortgagor has a present actual interest in it or concerning it. There must be something in præsenti of which the thing in futuro is to be the product, or with which it is to be connected, as necessary for its use or as an incident to it, constituting a tangible existing basis for the contract. The future property must be an accretion to the property already owned by the mortgagor, either by adding the future to the present or by growth. This idea of accretion runs through all the cases. It is contemplated all the time, that the present property is to be retained, and that the future property is not to be substituted, but merely added; thus, one may sell all the wool which shall grow for a term of years on sheep owned by him at the time, but not the wool to be grown on so many sheep, if he does not own them. Grantham v. Hawley, Hob., 132. No Indiana authority is in conflict with this rule. So far from deriving any comfort from Chissom v. Hawkins, appellants will, on a careful examination, find that case in direct conflict with their theory of the law. In Coe v. McBrown, 22 Ind., 252, the facts were these. Coe held a trust deed or mortgage on the railway from Jeffersonville to Indianapolis, owned by the Jeffersonville Railroad Company, with the superstructure, rails and other materials used thereon. In the District Court of the United States for Wisconsin (In re Kahley, 2 Biss., 383), Judge Hopkins, in discussing a mortgage similar to 66 Wilde, J., speaks as follows: That a person cannot grant or mortgage property of which he is not possessed, and to which he has no title, is a maxim of the law too plain to need illustration, and which is fully supported by all the authorities." The court then proceeds to overrule Mitchell v. Winslow, 2 Story, 630; Macomber v. Parker, 14 Pick., 497, and Abbott v. Goodwin, 20 Me., 408. the identical cases relied on by the appellants in this appeal. Rice v. Stone, 1 Allen, 569; Jones v. Richardson, 10 Met., 481; Moody v. Wright. 13 Met., 17: Codman v. Freeman, 3 Cush., 309; Otis v. Sill, 8 Barb., 102; Edgell v. Hart, 9 N. Y., 213; Gardner v. McEwen, 19 N. Y., 123; Milliman v. Neher, 20 Barb., 38. The later cases in Maine support the same doctrine. Abbott v. Goodwin, 20 Me., 408, cited by appellants, has been expressly overruled in that State by the more recent cases. The court, in Sheldon v. Conner, 48 Me., 589. in referring to Abbott v. Goodwin, used this language: "The soundness of this decision has been questioned and the case may be deemed to have been overruled by Head v. Goodwin, 37 Me., 181, and Chapin v. Cram, 40 Me., 561." "The general rule, undoubtedly, is that a per son cannot grant or mortgage property of which he is not possessed and to which he had no title." Com. Dig., Grant, D; Jones v. Richardson, 10 Met., 481. Morrill v. Noyes, 56 Me., 458, is a case of marked ability. We respectfully ask the atten tion of the court to this authority, as furnishing an able discussion of this important question. The Court of Appeals of Kentucky does not appear to have expressly decided the question. but in Wilson v. Seibert, 8 Am. Law Reg., N. S., 608, the subject is examined and settled by the Louisville Chancery Court. After a thorough consideration of a large number of authorities in the United States and England, Woolley, Chancellor, in an opinion of unusual clearness and vigor, holds the mortgage void as to after acquired property, except when it has the nature of an accretion or growth. In Wisconsin, there has been an unbroken line of decisions establishing the rule that a mortgage of after acquired chattels is void. Chynoweth v. Tenney, 10 Wis., 397, a masterly case, declares that a chattel mortgage is inoperative to pass any title, either legal or equitable, to any specific property, to be acquired by the grantor after the execution and delivery of the instrument. “A A similar doctrine prevails in Ohio. chattel mortgage purporting to create a lien on stock in a grocery, and also on such as should be subsequently acquired by the mortgagor, creates no lien on the subsequently acquired property." Chapman v. Weimer, 4 Ohio St., 481. Coe v. Col. P. & Ind. R.R. Co., 10 Ohio St., 372, approves and follows Chapman v. Weimar, citing Congreve v. Evetts, 10 Exch., 298. We submit that, although the question may appear to some extent an open one in Indiana, | after reciting the liability of the firm to the apthe judicial mind of the nation has ascertained and fixed the rule that after acquired chattels are not subject to lien by way of mortgage. Appendix of State Authorities. New York: Divver v. McLaughlin, 2 Wend., 596; Wood v. Lowry, 17 Wend., 492; Griswold v. Sheldon, 4 N. Y., 581; Edgell v. Hart, 13 Barb., 380; S. C., on appeal, 9 N. Y., 213; Delaware v. Ensign. 21 Barb., 85; Gardner v. McEwen, 19 N. Y., 123; Ford v. Williams, 24 N. Y., 359; Conk ling v. Shelley. 28 N. Y., 360; Miller v. Lockwood. 32 N. Y., 293; Russell v. Winne, 37 N. Y., 591; Mittnacht v. Kelly, 3 Abb. App., Dec., 301; 3 Keyes, 407; Yates v. Olmstead, 65 Barb., 43. These last two cases are the latest New York decisions we have seen, and are expressly in point. Massachusetts: Harris v. Sumner, 2 Pick., 133; Platt v. Brown, 16 Pick., 553; Robbins v. Parker, 3 Met., 117: Crowninshield v. Kittridge, 7 Met., 520; Kimball v. Thompson, 4 Cush., 446. New Hampshire: pellant, Robinson, on the notes indorsed by him, seven in number, all maturing between the 25th of July and the 6th of October of the same year, states that it is contemplated that in order to take up said several notes or some of them, it may become necessary to renew the same or discount other notes, to enable the said mortgagors to take up said notes, or raise money therefor. The recital of the indebtedness to the appellant, Mrs. Sloan, by note at four months with interest, is also made, with the statement that, if not convenient to pay it at maturity, it may be renewed from time to time as the parties may agree. After these recitals and a mutual understanding of the parties, concerning the continuance of the indebtedness, the property is conveyed upon the express agreement that until default be made in the payment of some one of said notes, or some paper in renewal thereof, the mortgagors may remain in possession of the goods and sell them as heretofore, and supply their places with other goods, and the goods substituted by purchase for those sold shall, upon being put into the store now occupied by Putnam v. Osgood, 51 N. H., 192; S. C., 52 them, or any other in Evansville in which they N. H., 148. Ohio: Collins v. Myers, 16 Ohio, 547; Freeman v. Rawson, 5 Ohio St., 1; Harman v. Abbey, 7 Ohio St., 218. These Ohio cases have been recognized as sound in Indiana. New Alb. Ins. Co. v. Wilcoxson, 21 Ind., 355. Tennessee Bunk v. Ebbert, 6 Am. L. T., 72; and in the Federal Courts. Re Manley, 2 Bond, 261; and Re Kahley, 2 Biss., 383. Wisconsin: Place v. Langworthy, 13 Wis., 629. Davis v. Ransom, 18 Ill., 396; Read v. Wilson, 22 111., 377; Barnet v. Fergus, 51 Ill., 352. Georgia: Nichols v. Hampton, 46 Ga., 253. Mr. Justice Davis delivered the opinion of the court: may be put for sale, be subject to the lien of the mortgage. The instrument then concludes with separate powers to the mortgagees, on default in payment of their respective claims, to seize and sell sufficient goods to satisfy the same. It is averred in the bill that all the debts owing by the firm at the date of the mortgage, other than those secured by it, have been paid, except $3,500 due Alfred Cooley for borrowed money. The mortgagors remained in possession of the property, and bought and sold as they had been accustomed to do, from the 7th of July, 1871, to August 7, 1873, when Seth A. Coolidge died. During this interval of twenty-five months, the interest and less than $100 of the principal of Mrs. Sloan's debt was paid, and the interest and about one third of the principal of the bank debt. The note of Mrs. Sloan's was not renewed, but was past due about twenty-one months. Robinson continued to indorse for the firm. Immediately after the death of Seth A. Coolidge the property of the This is an appeal from a decree of the Cir- firm, consisting of the old stock, goods subsecuit Court for the District of Indiana, dismiss-quently purchased, and debts due the firm, was ing a bill in chancery filed by the appellants: inventoried and appraised, and found to be The bill makes substantially this case: John very little in excess of the debts owing by the T. and Seth A. Coolidge were partners in the firm. This inventory and appraisement was retail dry goods trade in Evansville, Indiana, completed on September 15, and the following from 1863 to the 7th of August, 1873, when one day the appellants seized the goods, but were of the partners died. During the greater part prevented from selling them on account of proof this time Andrew L. Robinson, one of the ceedings in bankruptcy having been comcomplainants, was the accommodation indorser menced against the surviving partner, who was for the firm to the first National Bank of Evans- adjudged a bankrupt on the 4th day of Octoville, from whom they obtained loans of money ber. at different times as their convenience required, and Julia R. Sloan, the other complainant, also loaned them money as they needed it. The money thus borrowed was put into the business of the firm, and became part of their capital stock. The indebtedness to the bank on the 7th of July, 1871, was $7,600, and to Mrs. Sloan $3,174. On this day the partners executed a mortgage to the appellants, on their store of goods, furniture and fixtures. The mortgage, On the 15th of November the defendant was appointed assignee, and demanded the goods from the appellants, who refused to deliver them. The bill concludes with a prayer that an account may be taken of what is due the appellants, and for a sale of the goods. The circuit court sustained a demurrer to the bill, and rendered a decree dismissing it, which are the errors complained of. There are few subjects which have been more discussed in the courts of this country, with less uniformity of decision than that of sales and mortgages of personal goods, without delivery of possession. In Indiana the Statute of 13th Elizabeth has been adopted, and two provisions applicable to this case engrafted on it. The first declares that "No assignment of goods by way of mortgage shall be valid against any other person than the parties thereto, when such goods are not delivered to the mortgagee, or assignee, and retained by him, unless such assignment or mortgage" shall be duly recorded. And the second says, That the question of fraudulent intent in all cases shall be deemed a question of fact." the 17th enacts that every assignment, etc., of any estate in lands, or of goods, made with intent to hinder, delay or defraud creditors, shall be void; and the 21st declares that the question of fraudulent intent, in all cases arising under the provisions of this Act, shall be deemed a question of fact. It will thus be seen that the last section applies to conveyances of land as well as to assignments of goods by way of mortgage. In Jenners v. Doe, 9 Ind., 461, the question was whether a deed of trust on certain lands was void as to creditors who did not consent to it. The court of original jurisdiction held the deed void upon its face as a question of law. It was contended that this ruling was erroneous, and that in all cases the instrument must be referred to the jury in connection with the facts. But the Supreme Court held the ruling to be correct. They say that the provisions embraced in the 17th and 21st sections of the statute have declared, not changed, the law on the subject; that the court must, in the first instance, determine upon the legal effect of a written instrument, and if that be to delay creditors it is rethe law, it is received in evidence, and the question of the intent with which it was executed is an open one for the jury. It would seem to be the view of the court in this case, as well as in the preceding one in the same volume, of Nutter v. Harris, that the 21st section applies to cases of actual or meditated and intentional fraud, and is not applicable to written instruments which the law adjudges to be fraudulent on their face and, consequently, void. Prior to the incorporation of these provisions in the statute it was necessary to the validity of chattel mortgages in Indiana that there should be a manual delivery of the mortgaged property to the mortgagee who should con tinue to hold the same in his possession. These provisions changed the law in this particular, and permitted the retention of the possession of personal property by the mortgagor in a chattel mortgage given as a security for the pay-jected. If, however, on its face it conforms to ment of debts. And there can be no question that in Indiana a mortgage, which simply allows the mortgagor to retain the possession and use of the property until breach of the condition is, when duly recorded, prima facie valid. But it is insisted that the effect of these provisions is also to make a mortgage of a stock of goods, containing a provision authorizing the mortgagor to retain possession for the purpose of selling in the usual course of trade, prima facie valid, and that the court cannot, as a matter of law, pronounce it fraudulent. This, we think, is going beyond what the Legislature intended. If registration was intended, as we think it was, as a substitute for delivery of possession, it was not meant to be a protection for all the other stipulations contained in a mortgage. If so, it could be used as a cover for any fraudulent transaction, which would have to be treated, on the theory advanced, as valid, until the contrary was shown. It is true the law conferred on the parties the right to agree that the possession of the property could remain with the mortgagor, provided the mortgage be recorded; but if the mortgage contains other provisions, which, on legal principles, vitiate the whole instrument, it is difficult to see how recording it could make it even prima facie valid. The Bill of Sales Registration Act in England makes void all bills of sale not filed as required, if unaccompanied by possession. An eminent writer in speaking of this Act says: "Of course the mere fact of due registration of a bill of sale, under this Act, does not necessarily make it good against creditors. The Act was not passed with a view of making good a title which was not good before, but for the protection of creditors." May, Fraud. Conv., p. 120. And to the same effect is Wood v. Lowry, 17 Wend., 495, 496. There is, therefore, nothing in the way of the consideration of the main question involved in this controversy on its merits. If chattel mortgages were formerly, in most of the States, treated as invalid unless actual possession was surrendered to the mortgagee, it is not so now, for modern legislation has, as a general thing (the cases to the contrary being exceptional), conceded the right to the mortgagor to retain possession, if the transaction is on good consideration and bona fide. This concession is in obedience to the wants of trade, which deem it beneficial to the community that the owners of personal property should be able to make bona fide mortgages of it, to secure creditors, without any actual change of possession. But the creditor must take care in making his contract that it does not contain provisions of no advantage to him, but which benefit the debtor, and were designed to do so, and are injurious to other creditors. The law will not sanction a proceeding of this kind. It will not allow the creditor to make use of his debt for any other purpose than his own indemnity. If he goes beyond this, and puts into the contract stipulations which have the effect to shield the property of his debtor, so that creditors are delayed in the collection of their debts, a court of equity will not lend its aid to enforce the conIt is argued, however, that there can be no tract. These principles are not disputed, but the ¦ ¦ such thing in this class of cases as constructive courts of the country are not agreed in their apfraud, because under the statute the question of plication to mortgages, with somewhat analofraudulent intent is one of fact. But the Supreme gous provisions to the one under consideration. Court of Indiana has decided the question differ-The cases cannot be reconciled, by any process ently. The statute of that State for the prevention of reasoning, or on any principle of law. As of fraudsembraces twenty two sections. The 10th the question has never before been presented to relates to the registration of chattel mortgages; this court, we are at liberty to adopt that rule |