(a) Actual (p. 213).
(b) Implied (p. 215).
(c) Constructive, which includes notice:
(1) By recitals in title deeds (p. 216).
(2) By possession (p. 216).
(3) By lis pendens (p. 218).
(4) By registration (p. 218).
The priority of mortgages and other conveyances of realty depends almost entirely on the doctrine of notice.241 There is a maxim of equity, that, between equal equities, priority of time prevails;242 but in dealing with conveyances of realty the question usually is whether the equities are equal, and they are not if the subsequent purchaser has notice of the prior conveyance. How238 Baldwin v. Hatchett, 56 Ala. 461; Collamer v. Langdon, 29 Vt 32; Douglass v. Dunn, 51 Me. 121.
239 Collamer v. Langdon, 29 Vt. 32; Webster v. Calden, 56 Me. 204.
240 Marsh v. Austin, 1 Allen (Mass.) 235; Jackson v. Willard, 4 Johns. (N. Y.) 41; Rickert v. Madeira, 1 Rawle (Pa.) 325; Nicholson v. Walker, 4 111. App. 404; .Scott v. Mewhirter, 49 Iowa, 487; Buck v. Sanders, 1 Dana (Ky.) 1St.
241 See Fetter, Eq. c. 5.
242 Fetter, Eq. p. 36.
Ever, a purchaser with notice may acquire a good title from one who purchased without notice, because otherwise the latter's free right of disposal would be abridged.243 On the other hand, a purchaser without notice can take a good title from one who had notice.244 The question of priority is in many cases affected by fraud of the prior grantee; as, where a prior mortgagee conceals the existence of his mortgage from one about to take a mortgage on the same premises,245 or, on inquiry being made, states that nothing is due on his mortgage, he is estopped to set up the mortgage against the subsequent mortgagee.246 But a mortgagor is not bound to disclose his mortgage if it is on record.247 Actual Notice.
Whenever a subsequent mortgagee or grantee has actual notice of a prior conveyance, he can acquire no priority over such conveyance.248 When the unrecorded conveyance has actually been seen by, or read before, the purchaser, but under circumstances where he could not well suspect the identity of the land, nor remember its description,-as where lots are sold by number from a plat, and he comes himself to buy what he naturally thinks are other lots,-the purchaser is not charged with notice.249 Actual notice does not necessitate actual knowledge.250 It may be shown by circumstantial evidence. Whether there was such notice depends in each instance upon the facta of the case.251 The test is whether the circumstances were such as to cause a reasonably prudent man to make inquiry.252 But the notice must afford sufficient information to make a reasonable inquiry on, and not merely to put him on inquiry.253 For instance, a mere rumor is not notice.254 A purchaser who is put on inquiry must make a reasonable investigation of the title,255 and he cannot rely on statements of his grantor, or one who is interested in concealing the prior incumbrance.256 He is presumed to have no-tice of facts which due inquiry would have shown him.257 The burden of proof, however, is on the one who seeks to establish the existence of notice.258 Notice, to affect a subsequent purchaser, must be received before the transaction is completed and the price
243 Alexander v. Pendleton, 8 Cranch, 462; Boone v. Chiles, 10 Pet 177; Morse v. Curtis, 140 Mass. 112, 2 N. E. 929; Boynton v. Rees, 8 Pick. (Mass.) 829; Webster v. Van Steenbergh, 46 Barb. (N. Y.) 211; Bracken v. Miller, 4 Watts & S. (Pa.) 102; Day v. Clark, 25 Vt. 397; Pringle v. Dunn, 37 Wis. 449. Contra, Sims v. Hammond, 33 Iowa, 368. But see, contra, where the deed is recorded in the meantime. Van Rensselaer v. Clark, 17 Wend. (N. Y.) 25; Bayles v. Young, 51 111. 127. But one who has taken a title, with notice, and transferred it, cannot acquire a good title by subsequently repurchasing from one who had no notice. Schutt v. Large, 6 Barb. (N. Y.) 373.
244 Wood v. Mann, 1 Sumn. 506, Fed. Cas. No. 17,951; Choteau v. Jones, 11 111. 300; Trull v. Bigelow, 16 Mass. 406; Somes v. Brewer, 2 Pick. (Mass.) 184; Glidden v. Hunt, 24 Pick. (Mass.) 221; Fallass v. Pierce, 30 Wis. 443.
245 L'amoureux v. Vandenburgh, 7 Paige (N. Y.) 316.
246 Platt v. Squire, 12 Metc. (Mass.) 494; Miller v. Bingham, 29 Vt. 82. And see Fay v. Valentine, 12 Pick. (Mass.) 40; Chester v. Greer, 5 Humph. (Tenn.) 25.
247 Brinckerhoff v. Lansing, 4 Johns. Ch. (N. Y.) 65; Paine v. French, 4 Ohio, 318; Palmer v. Palmer, 48 Vt. 69.
248 Fetter, Eq. 102. And see Wallace v. Mckenzie, 104 Cal 130, 37 Pac. 859.
249 Armstrong v. Abbott, 11 Colo. 220, 17 Pac. 517; Vest v. Michie, 31 Grat (Va.) 149.
250 Fetter, Eq. 81. See, however, Lamb v. Pierce, 113 Mass. 72.
251 Lamb v. Pierce, 113 Mass. 72; White v. Foster, 102 Mass. 375; Sibley v. Leffingwell, 8 Allen (Mass.) 584; Michigan Mut Life Ins. Co. v. Conant, 40 Mich. 530; Vest v. Michie, 31 Grat. (Va.) 149; Vaughn v. Tracy, 22 Mo. 415; Speck v. Riggin, 40 Me. 405.
252 Fassett v. Smith, 23 N. Y. 252; Williamson v. Brown, 15 N. Y. 354; Baker v. Bliss, 39 X. Y. 70; Maupin v. Emmons, 47 Mo. 304; Wilcox v. Hill, 11 Mich. 25G; Helms v. Chadbourne, 45 Wis. 60; Brinkman v. Jones, 44 Wis. 498; Heaton v. Prather, 84 111. 330; Curtis v. Mundy, 3 Metc. (Mass.) 405; Wilson v. Hunter, 30 Ind. 466.
253 Dey v. Dunham, 2 Johns. Ch. (N. Y.) 182; Jackson v. Van Valkenburgh, 8 Cow. (N. Y.) 260; City of Chicago v. Witt, 75 111. 211; Maul v. Rider, 59 Pa. St. 167.
254 Parkhurst v. Hosford, 21 Fed. 827; Pittman v. Sofley, 64 111. 155; Otis v. Spencer, 102 111. 622; Buttrick v. Holden, 13 Metc. (Mass.) 355; Shepard v. Shepard, 36 Mich. 173; Appeal of Bugbee, 110 Pa. St. 331, 1 Atl. 273; Kerns Swope, 2 Watts (Pa.) 75; Lamont v. Stimson, 5 Wis. 443.
256 Schweiss v. Woodruff, 73 Mich. 473, 41 N. W. 511; Oliver v. Sanborn, 60 Mich. 346, 27 N. W. 527; Cambridge Valley Bank v. Delano, 48 N. Y. 326; Maul v. Rider, 59 Pa. St 167; Wilson v. Miller, 16 Iowa, 111. But, if inquiry fails to disclose the prior conveyance, he is protected. Williamson v. Brown, 15 N. Y. 354.
256 Blatchley v. Osborn, 33 Conn. 226; Russell v. Petree, 10 B. Mon. (Ky.) 184; Littleton v. Giddings, 47 Tex. 109.
257 Passumpsic Sav. Bank v. First Nat. Bank, 53 Vt. 82; Austin v. Pulschen (Cal.) 39 Pac. 799. Notice of an unrecorded deed is notice of all its contents, Martin v. Cauble, 72 Ind. 67; Hill v. Murray, 56 Vt. 177.
258 Ryder v. Rush, 102 111. 338; Mecormick v. Leonard, 38 Iowa, 272.
Paid.259 If notice is received after part of the money has been paid over, the protection extends to that part, but not to money subsequently paid.260