Smith v. Hoe & Acker

Court for the Trial of Impeachments and Correction of Errors

Decided July 1, 1799

Court for the Trial of Impeachments and Correction of Errors · decided 1799-07-01

In this case the presiding judge, on the trial before the jury, had ruled that the mortgage being unaccompanied by an immediate delivery, and not followed by an actual and continued change of possession of the property, and no reason sufficient in the lato being shown for want of possession by the mortgagee; the mortgage was fraudulent, and refused to submit the question of fraudulent intent as a question of fact to the jury.

Decided 1799-07-01

¶1The Supreme Court affirmed the decision; but

¶2The Court of Errors held, 1. That the mortgage was not void for mere want of the possession required by the Rev. Stat., if it be made to appear on the part of the mortgagor, that it was made in good faith, and without any intent to defraud purchasers or creditors.

¶3■ 2. That the continuance of the mortgagor’s possession, affords the highest presumption of fraudulent intent, amounting to conclusive proof, unless it be rebutted by such evidence as to make the good faith of the transaction appear affirmatively. The burden of proof to rebut that presumption, is thrown wholly upon the party claiming under the mortgage, and the question of intent is not to he determined by the court where such proof is offered, but it must be submitted to the jury.