Smith v. Hoe & Acker , 1 Lock. Rev. Cas. 178 ( 1799 )

The Supreme Court affirmed the decision; but

The 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.

■ 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.