(5.) As to notice - what it is - how it may be proved - and its effect - of void or voidable estates and voluntary or fraudulent conveyances - equitable relief against purchaser with notice.

Notice of an unregistered security must, in order to affect a purchaser claiming under a registered instrument, be actual notice affecting him with fraud (y): so, also, notice of an unregistered judgment must, it would seem, be actual in order to affect a purchaser (z): and actual notice to the solicitor or agent in the transaction is actual notice to the client or principal (a): and where the principal is affected with personal knowledge, it is, of course, immaterial whether he acquired it in one or another character (b).

Actual notice, according to Sir E. Sugden (c), "must be given by a party interested in the property (d), and in the course of the treaty for the purchase:" and he also cites a remark made by the Master of the Rolls, in Jolland v. Stainbridge (e), intimating a doubt whether a general notice of title is sufficient, and whether it is not necessary to specify the instrument under which the claimant is entitled.

Priorities under Fines and Recoveries Abolition Act.

Purchaser only affected by actual notice of unregistered assurance or judgment.

Notice to solicitor is notice to client.

Actual notice, when, by whom, and how to be given.

(w) See S. C.

(x) Vide supra, p. 321, et seq.

(y) See Jolland v. Stainbridye, 3 Ves. 478; Wyatt v. Bartvell, 19 Ves. 435; Buckley v. Lanauze, Ll. & G. Rep. t. Pl. 327, 341.

(z) See Tunstall v. Trappes, Gos-ling's case, 3 Sim. 301.

(a) S. C, and Le Neve v. Le Neve, 3 Atk. 646; and see Davis v. Earl of Strathmore, 16 Ves. 419; Sheldon v. Cox, 2 Eden, 224.

(b) See Meux v. Bell, 1 Ha. 88, (c) Sug. 1040; and see 1 J. & L. 442

(d) See Wildgoose v. Wayland, Goulds. 147.

(e) 3 Ves.; see p. 486.

Perhaps all these points should be cautiously acted on in practice (f); it is one thing to say that mere "flying reports" (g) are not notice, and another to affirm that a purchaser could not be affected by a deliberate and particular statement of an adverse claim unless made either by or on behalf of the claimant; nor does there seem to be any reason why, where notice has been given to the purchaser prior to the commencement of the treaty, the Court should not consider whether, (as in the case of an agent or solicitor,) such notice must not have been present to his mind during the treaty; of the case cited by Sir E. Sugden in support of the unqualified proposition (h) it may be remarked, that considering its date (i), and the cautious character of the Judge, (Lord Keeper Coventry,) an unwillingness to do anything which might be construed into a breach of parliamentary privilege may have influenced the decision; which was, that a Member of the House of Commons was not to be considered as affected with notice of what came to his knowledge as Parliamentary business within the walls of the House.

So, the doctrine hinted at in Jolland v. Stainbridge seems to be at variance with a later case where it was held that a purchaser, having notice that A. had a judgment or warrant of attorney affecting the estate, was bound in Equity, although the incumbrance was in fact a mortgage (k); so, a general recital in a deed that there were mortgages on the estate, has been held, by Lord Langdale, to amount to notice of a mortgage not specified in such deed (l).

(f) See, as to the first and third, Butcher v. Stapely, 1 Vern. 363; and Fry v. Porter, 1 Mod. 311.

(g) Goulds. 147.

(h) East Grimsted case, Duke's Charitable Uses, 640.

(i) A. D. 1633.

(k) Taylor v. Baker, 5 Pri. 306; and see 1 Ha. 58.

It seems probable that a purchaser, having notice of an executory instrument, - (e.g., marriage articles,) - of doubtful meaning, would, as a general rule, be bound to take notice of the construction which would be put upon it by a Court of Equity; and must, therefore, see, that any instrument which may have been executed in pursuance thereof, and which is material to the title, has been framed in accordance with such construction (m): but, where a long period has elapsed since the sale, the Court may decline to fix upon a purchaser a difficult construction of a doubtful instrument, although it might have granted relief as between the parties thereto if there had been no sale (n).

Constructive notice, (which, in its general effects, is similar to actual notice (o),) has been defined to be, "evidence of notice, the presumptions of which are so violent that the Court will not allow even of its being controverted" (p): this, perhaps, scarcely conveys a satisfactory notion of the nature of the doctrine; the reported decisions upon which, it is submitted, clearly show, that constructive notice is often held to exist in the absence of any idea by the Court of the existence of actual personal knowledge; if, for instance, a purchaser, having notice of a deed as being one which affects the property, is induced to rely upon the vendor's representation as to its contents, the Court will hold him bound by those contents, even although it were satisfactorily shown from the nature of the transaction that he placed implicit and bona fide confidence in the good faith of the vendor (q); so, in Jackson v. Rowe (r), Sir John Leach says, "although he, (the purchaser), may, in fact, have been ignorant of the settlement, yet, in Equity, he must be fixed with all the knowledge which it was reasonable he should acquire": constructive notice may, perhaps, be rather considered to consist in those circumstances under which the Court concludes, either that the party, (personally or through his agent,) has fraudulently abstained from acquiring actual notice, or has been guilty of such negligence in not availing himself of the means of acquiring it, as, if permitted, might be a cloak to fraud, and which, therefore, the common interests of society require should, in its consequences, be treated as equivalent to actual notice: what degree of negligence is sufficient for this purpose remains to be considered.