Opinion
(Fall Riding, 1800.)
1. Property sold remaining in the possession of the vendor is evidence of fraud, but may be explained.
2. Secrecy is a mark of fraud; and by secrecy is meant that the act is done in the presence of near relations only, being such persons as may be relied on not to disclose to the neighborhood what they know; or if it be done at such a distance from the neighborhood that it is unlikely the affair will become known to the neighbors.
If possession is not taken at the time of the sale, but the property still remains in the possession of the vendor, that is a mark of fraud; so also is it a mark of fraud if the deed be absolute and unconditional, and the property remains with the seller. The property ought to accompany and follow the deed, as stated in the 2 Term, 586, 597; but I cannot agree with that case, that the property going otherwise as to its possession than the deed points out is absolutely fraud. It is also a mark of fraud if the transaction be secret; and by secrecy is meant if it be done in the presence only of near relations, being such persons who may be relied upon not to disclose what they know, to the neighborhood of the seller, or it if be done at such a distance from the neighborhood that it is unlikely the affair will become known to them.
NOTE. — See Ingles v. Donalson, ante, 57, and the note thereto.
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