By the Court,
Nelson, J.By the 2 R. S. 136, §5, every sale made by a vendor of goods and chattels in his possession or under his control, and every assignment of goods and chattels by way of mortgage or security, or upon any condition whatever, unless the same be accompanied by an immediate delivery, and be followed by an actual and continued change of possession of the thing sold, mortgaged or assigned, shall be presumed fraudulent and void as against the creditors of the vendor or the creditors of the person making such assignment, or subsequent purchasers in good faith; and shall be conclu*214sive evidence of fraud, unless it shall be made to appear, on the part 0f the persons claiming under such sale or assignment, that the same was made in good faith, and without any intent to defraud such creditors or purchasers. By §4, p. 137, it is enacted that the question of- fraudulent intent, in all cases arising under the provisions of this (71st) chapter, shall be deemed a question of fact, and not of law. Nor shall any conveyance or charge be adjudged fraudulent as against creditors or purchasers, solely on the ground that it was not founded on a valuable consideration.
Upon these two sections of the statute, it is clear the circuit judge erred in assuming that the question as to the validity of the' mortgage was purely one of law. The- sale or mortgage of personal property, unaccompanied by delivery, is presumptively fraudulent, and conclusively so, unless explained to the satisfaction of the court and jury, that it was made in good faith, and without any intent to defraud, &c. If no explanation is attempted, then the question is one of law— the sale or mortgage is void, and should be so pronounced by the court. If explanation is attempted, and evidence is given for the purpose of rebutting the presumption, it must be submitted to the jury, under the advice and direction of the court. The only instance of presumptive legal fraud, is that pronounced by the statute ; beyond this the 4th <§>, above referred to, is imperative, and the question becomes one of fact. 12 Wendell, 297. Whether this view of the statute is in accordance with the old law as understood in this state or not is a question now more curious than important. The later decisions had nearly approached, if they had not already reached the point now established by statute. We have heretofore decided, that a mortgage by the purchaser of personal property, for the security of the. consideration money, may be valid without the accompaniment of possession. Indeed, if this security can be valid in any case without the possession, this would seem to recommend itself to favorable consideration. Still it may be fraudulent; and after all, a jury must pass upon the transaction and good faith of the parties according to the statute.
*215Considering this a verdict for the plaintiff, we should be quité willing to allow it to stand. In one way or other the defendant has received most of the consideration money paid by the plaintiff for the sloop ; part of it at least, and probably the whole, with a knowledge that it was paid as the price of the sloop sold by the Vandercooks. Besides, he was the neighbor of the plaintiff, and most probably knew of the expensive repairs upon the vessel, and yet never took the trouble to disclose the fact of the existence of the mortgage, and, on the contrary, persisted in a studied. concealment.
As, however, the question of fraud should have been submitted to the jury there must be a new trial.
New trial granted.