was in fact charged, incumbered, or in some way affected with the claims of others, he is considered as having constructive notice of all facts and instruments to a knowledge of which he would have been led by an inquiry after the charge, incumbrance, or other fact affecting the property. Hence a person is chargeable with notice of an unrecorded lien, though he may have no knowledge of its existence, if he has notice of the contents of the instrument giving the lien. So where the defendants, who claimed as subsequent purchasers of a mortgage interest, were aware at the time of their purchase that the plaintiff had been a mortgagee of the same property, they were considered as fixed with notice of the particulars of his security from which the title offered to them was derived, and of the evidences of fraud which there appeared. So also it is held that if the purchaser of corn from a tenant know of the existence of the tenancy, and that his vendor, as tenant, has raised the corn on the demised premises, this will be notice to him of any statutory lien the landlord may have upon the premises for unpaid rent. So too one who purchases land with notice that another has a contract for the purchase of it is bound to inquire into the nature of such contract, and takes subject to the same, if valid, though he may not have notice that it is in writing.5

If however reasonable inquiry has been made, the law is satisfied, and whatever the information, if it be such as to satisfy a reasonable mind, the doctrine of notice does not apply; that is, the party is not fixed with notice of anything beyond the apparently trustworthy facts developed by the

1 Willis v. Vallette, 4 Met. (Ky.) 186. 2 Ib.; Tiernan v. Thurman, 14 B. Mon. 279.

8 Ogilvie v. Jeaffreson, 2 Giff. 353; Kennedy v. Green, 3 Mylne & K. 699, 718.

4 Watt v. Scofield, 76 Ill. 261.、 5 Connihan v. Thompson, 111 Mass. 270.

6 Williams v. Williams, 17 Ch. D. 437, 442; Hoyt v. Shelden, 3 Bosw. 267. See Wilson v. Hart, L. R. 1 Ch. 463; Jones v. Smith, 1 Hare, 43; s. c. Phill. 244. Comp. cases of sending notice of dishonor of bill or note on information received. See e. g. Bank of Utica v. Bender, 21 Wend. 643; Saco Bank r. Sanborn, 63 Maine, 340.

actual inquiry. Indeed it seems that if a party can make it appear reasonably certain that inquiry would have led to nothing, he will be excused from inquiring altogether;1 but it will not be enough for him merely to say that inquiry would only have led to wrong information.

Again if there be no fraudulent turning away from knowledge of the facts which the res gestæ would suggest to a prudent mind; if mere want of caution, as distinguished from fraudulent and wilful blindness, is all that can be imputed to a purchaser of property, the doctrine of notice will not apply to him.2 Hence a party cannot be charged with notice of an advertisement in a newspaper, in the absence of statutory provision, whether he is or is not a subscriber to the paper.3 Thus cautioning all persons' against purchasing a bill of exchange, by advertisement in a newspaper circulating in the place of residence of a subsequent purchaser of the bill, is not notice to him of fraud tainting the bill; to affect the purchaser the advertisement must have been read by or known to him. There should be a duty to become informed, to constitute notice.5

6

Notice again must be definite and certain; that is, the facts known must be clear facts, and point plainly to the particular fact not known. Mere rumor is not notice. To hear for example floating reports about an incumbrance upon land about to be bought does not affect the party with notice. But it is said to be otherwise of general reputation and belief. With regard to the question what constitutes notice

1 Carter v. Williams, L. R. 9 Eq. 678; Patman v. Harland, 17 Ch. D. 353, 356.

2 Jones v. Smith, 1 Hare, 43; Jones v. Gordon, 2 App. Cas. 610; Danby v. Coutts, 29 Ch. D. 500; Woodworth v. Paige, 5 Ohio St. 70.

8 Watkins v. Peck, 13 N. H. 360; Clark v. Ricker, 14 N. H. 44; Lincoln v. Wright, 23 Penn. St. 76; Kellogg

v. French, 15 Gray, 354. But see King v. Paterson R. Co., 5 Dutch. 82. Kellogg v. French, supra.

5 Hallmark's Case, 9 Ch. D. 329, C. A.

Maul v. Rider, 59 Penn. St. 167; Colquitt v. Thomas, 8 Ga. 258; James v. Drake, 3 Sneed, 540. But see Benzein v. Lanoir, 1 Dev. Eq. 225.

7 James v. Drake, supra.

of fraud in a conveyance, while it is settled that vague and general assertions, resting on mere hearsay and made by strangers, may be disregarded, still a direct statement to a purchaser of the existence and nature of an adverse claim or title will operate as notice, whether it was made by or on behalf of the holder of the adverse title, or by a mere stranger.1 The general doctrine however is that notice cannot arise, unless it proceed from a person interested in the property, and in the course of a treaty for its purchase; but this rule applies only to notice in its strict sense, as distinguished from knowledge or such information as is substantially equivalent to knowledge. If it be shown that the purchaser knew or was informed of the existence of fraud, it is immaterial whether his knowledge was obtained from parties in interest or from third persons. From whatever quarter it may proceed it will be sufficient if it be so definite as to enable the purchaser to ascertain whether it is authentic or not, and sufficiently clear and definite to put the purchaser on inquiry in regard to its truth, and enable him to conduct that inquiry to an ascertainment of the fact.2 The statements of third persons may be sufficient for this purpose; and as we have seen, the existence of a fact may acquire such a notoriety as to have the same effect. It is accordingly held that one who, prior to the issuing of a patent from the state to his grantor, knew that the state authorities claimed that the lands covered by it were reserved from sale, and knew of ineffectual attempts to purchase them from the state, has sufficient to put him upon inquiry to find out the truth, and to subject him to equities growing out of any mistake or fraud under which the patent may have been issued.*

There are now two subjects in regard to which the doctrine of constructive notice has important and frequent application,

1 Martel v. Somers, 26 Tex. 551.

Attorney-Gen. v. Smith, 31 Mich.

2 Ib.

8 Ib.

359.

to wit, possession, and breaches of trust. These we shall consider in turn; first then of possession.

If a man take a conveyance of land from one, while another is in the open and visible possession of the estate, he will be affected, generally speaking, with notice of everything in relation to the title which could be known upon diligent inquiry. And if in such case the person in possession have an equitable title to the land, the taking of the conveyance will be deemed a fraud; and nothing will pass to the grantee which can avail him against such equitable title. Hence actual possession by a tenant or by a cestui que trust is constructive notice to a purchaser that there is some claim, title, or possession of the property, inconsistent with full ownership by the vendor;2 the purchaser, it is declared,3 is bound by all the equities which the tenant or cestui que trust could enforce against the vendor. And the equity of the party so in possession extends not only to interests connected with his tenancy, but also to interests under collateral agreements; 5 this probably in the absence of registration according to law. Possession is prima facie evidence of seisin in fee.6

Notice however, or even knowledge, of a tenancy is not, according to what appears to be the better view, notice of the nature of the title of the lessor; a purchaser will be affected by the equities of the tenant only," including those of an agent or steward who may be in receipt of the rent. That is, actual possession, and that only, will constitute notice. And this explained in Barnhart v. Greenshields, supra.

1 Hadduek v. Wilmarth, 5 N. H. 181; Hathaway v. Noble, 56 N. H. 508; Eli v. Gridley, 27 Iowa, 376; Van Orman v. Merrill, ib. 476, and cases cited in the following notes.

2 Daniels v. Davison, 16 Ves. 249; Johns v. Norris, 12 C. E. Green, 485; McDavit v. Pierrepont, 8 C. E. Green, 42; Kerr v. Day, 14 Penn. St. 112.

8 Barnhart v. Greenshields, 9 Moore, P. C. 18, 32; Jones v. Smith, 1 Hare, 60; Bailey v. Richardson, 9 Hare, 734,

4 Taylor v. Stibbert, 2 Ves. Jr. 437. 5 Daniels v. Davison, 16 Ves. 249; Allen v. Anthony, 1 Meriv. 282; Barnhart v. Greenshields, supra.

6 Barnhart v. Greenshields and Jones v. Smith, supra.

7 Barnhart v. Greenshields, 9 Moore, P. C. 18, 34.

8 Knight v. Bowyer, 23 Beav. 609; s. c. 2 De G. & J. 421.

proposition applies to the situation of tenant and sub-tenant; if the latter is alone in possession, a purchaser will be fixed with notice of his rights, apart from questions arising under the law of registration, but the purchaser will not be held to notice of the upper tenant's estate.1

This view of notice, touching the lessor's estate, has, it is believed, the support of reason and of the better authorities.2 Notice fixed by the knowledge of a fact pertains in principle to matters in the regular train of that fact, and not to matters wholly distinct from it; inquiry would not naturally lead to the discovery of such. The fact that A has leased and given possession to B would not lead to knowledge that A had also mortgaged the property to C; unless by accident. However

there are decisions to the effect that the fact of possession in another is notice of the nature of the title of the lessor or owner.4

It is not enough to say that these decisions are not sound authority; it is doubtful in certain cases whether possession by a tenant is notice even of the extent of the tenant's title. If the title of the tenant is not on record, or if, being upon the registry, it is not entitled and not known to be there, his possession would doubtless be notice of the actual extent of his interest, so far as ascertainable by reasonable diligence. But if his title was recorded according to law, or if, not being entitled to registration, it was known to be on record, the question becomes a serious one, whether one dealing with the estate must make further inquiry because of the tenant's

1 Oxwith v. Plummer, 2 Vern. 636; s. c. Gilb. 13; Barnhart v. Greenshields, supra.

v. Fahnestock, 1 Barr, 470; Wright v. Wood, 23 Penn. St. 120, 130; Pittman v. Gatty, 5 Gilm. 186. See Smith v.

2 Flagg v. Mann, 2 Sum. 486; Beat- Jackson, 76 Ill. 254. But in Wright v.

tie v. Butler, 21 Mo. 313.

3 Bell v. Twilight, 18 N. H. 159. 4 Dickey v. Lyon, 19 Iowa, 544, majority decision upon apparent authority of cases in Pennsylvania and Illinois. Sailor v. Hertzog, 4 Whart. 259; Hood

Wood, ut supra, the court says that ‘the possession of an intruder cannot be held to be notice of the title of a stranger.' Whether the Pennsylvania court intend to go as far as that of Iowa is not clear.