This section is from the book "Dart's Treatise On The Law And Practice Relating To Vendors And Purchasers Of Real Estate", by J. Henry Dart . Also available from Amazon: A treatise on the law and practice relating to vendors and purchasers of real estate.
As to notice to trustees.
(e) See Hine v. Dodd, (1741) 2 Atk. 275 ; Jolland v. Stainbridge, (1797) 3 Ves. 478, 486 ; Wyatt v. Banc ell, (1815) 19 Ves. 435 ; Buckley v. Lananze, (1836) L. & G. temp. P. 327, 341; Nixon v. Hamilton, (1838) 2 D. & Wal. 364, 388 ; Wallace v. Marq. of Donegal, (1837) 1 D. & Wal. 461, 488 ; and see judgment of Sugden, L. C., in Marjoribanks v. Hovenden, (1843) Dru. 11, 22; Holland v. Hart, (1871) 6 Ch. 678, 681 ; 40 L. J. Ch. 701 ; sup. p. 867.
(/) See Tunstall v. Trappes, Gosling's case, (1829) 3 Si. 301 ; and see Benhamv. Keane, (1861) 3 D. E. &
J. 318 ; 31 L. J. Ch. 129.
(g) Ex p. Rogers, (1856) 8 D. M. & G. 271 ; 25 L. J. Bk. 41; Smith v. S., (1835) 1 Y. & C. 338 ; Willes v. Greenhill, (1861) 4 D. F. & J. 147 ; and see Wise v. W., (1845) 2 J. & L. at p. 412.
(A) See and consider Ward v. Buncombe, 1893, A. C. 369 ; 62 L. J. Ch. 881 ; S. C. in Ct. of Ap., Re Wyatt, 1892, 1 Ch. 188 ; 61 L. J. Ch. 178 ; Re Phillips' Trusts, 1903, 1 Ch. 183 ; 72 L. J. Ch. 94; Be Dallas, 1904, 2 Ch. 385 ; 73 L. J. Ch. 365.
(i) Brown v. Savage, (1859) 4 Dr. 635 : Willes v. Greenhill, sup.
(k) Timson v. Ramslottom, (1837) 2 Ke. 35 ; Re Phillips' Trusts, 1903, 1 Ch. 183 ; 72 L. J. Ch. 94.
(I) Phipps v. Lovegrove, (1873) 1G Eq. 80 ; 42 L. J. Ch. 892 ; see Newman v. N., (1885) 28 Ch. D. 674 ; 54 L. J. Ch. 598; Hallows v. Lloyd, (1888) 39 Ch. D. 686 ; 58 L. J. Ch. 105.
(m) Low v. Bowerie, 1891, 3 Ch. 82, 104 ; 60 L. J. Ch. 594.
(n) Re Wasdale, 1899, 1 Ch. 163; 68 L. J. Ch. 117.
(o) Lewin, 11th ed. 890, 891. Qu. whether notice to a renouncing executor would give priority, see Re Dallas, (1904) 73 L. J. Ch. 365, judgments of Stirling and Cozens-Hardy, L.JJ.
(p) Lloyd's Bank v. Pearson, 1901, 1 Ch. 865 ; 70 L. J. Ch. 422 ; Re Pallas, (1904) 73 L. J. Ch. 365.
(q) See R. S. C. Ord. XLVI.
(r) Re Holmes, (1885) 29 Ch. D. 786; 55 L. J. Ch. 33 ; but it is otherwise where the subsequent incumbrancer had no notice at the time of taking his security, though he had notice before obtaining his stop-order; Mutual Society v. Langley, (1886) 32 Ch. D. 460; 53 L. J. Ch. 996 ; Mack v. Postle, 1894, 2 Ch. 449 ; 63 L. J. Ch. 593 ; and sec Stephens v. Green, 1895, 2 Ch. 148; 64 L. J. Ch. 546 ; Re Anglesey, 1903, 2 Ch. 727; 72 L. J. Ch. 782; Coote on Mortgages, 7th ed. 1296 et seq.
Actual notice to the solicitor of the trustees, or to the solicitor, or agent in the transaction, is actual notice to all the trustees, or the client or principal (s), but only when there is an actual employment of the solicitor extending to receiving such notice (t) ; and notice to the solicitor is not notice to the client, when the person giving the information knows, or has good reason to believe, that it will not be communicated to the client (u). Where the principal is affected with personal knowledge, it is, of course, immaterial whether he acquired it in one or another character (x).
Notice to solicitor is notice to client.
Actual notice, according to Lord St. Leonards (y), "must be given by a party interested in the property (2), 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 (a), 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.
Actual notice, when, by whom, and how to be given.
Perhaps all these points should be cautiously acted on in practice (b). It is one thing to say that mere "flying reports " (c) 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 by a party interested. The credibility of the informant must surely be considered (d). 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 Lord St. Leonards in support of the unqualified proposition (e) it may be remarked, that considering its date (f), and the cautious character of the Judge, (Lord Keeper Coventry,) an unwillingness to do anything which might be construed as 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. But general reputation cannot be constructive notice of any fact in proof of which such reputation would be inadmissible in evidence (g).
General remarks on the doctrine.
(s) Willes v. Greenhill, (1861) 4 D. F. & J. 147 ; Rickards v. Gled-stanes, (1861) 3 Gif. 298; 31 L. J. Ch. 142; and see Tunstall v. Trappes, (1829) 3 Si. 301 ; Le Neve v. Le X., (1748) 3 Atk. 646; 2 Wh. & T. L. C. 7th ed. p. 175; Davis v. Earl of Strathmore, (1810) 16 Ves. 418 ; Sheldon v. Cox, (1764) 2 Ed. 224 ; Nixon v. Hamilton, (1838) 2 D. & Wal. 364, 391, 393 ; Holland v. Hart, (1871) 6 Ch. 678; 40 L. J. Ch. 701 ; Re Ash ton, (1891) 7 T. L. R. 207.
(t) Saffron Walden Society x.Rayner, (1880) 14 Ch. D. 406 ; 49 L. J. Ch.
(u) Sharpe x. Toy, (1868) 4 Ch. 35; and see Agra, Bank x. Barry, (1874) L. R. 7 H. L. 135.
(x) See Meux v. Bell, (1841) 1 Ha. at p. 88; 11 L.J.N. S. Ch. 77.
(y) Sug. 14th ed. 755; and see (1844) 1 J. & L. 442.
(z) See Wildgoosex. Way land, (1601) Gould. 147.
(a) (1797) 3 Ves. at p. 486.
(b) See, as to the first and third, Butcher x. Stapely, (1685) 1 Vern. 363 ; and Fry x. Porter, (1670) 1 Mod. at p. 311.
(c) Wildgoose v. Wayland, sup.
The doctrine hinted at in Jolland v. Stairibridge 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, though the incumbrance was in fact a mortgage (//) : 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, affecting the estate, though no other mention was made of it in the deed (i) : but where two charges were contained in one deed, and a notice of one only was given to the trustees, it was held that notice of the other could not be imputed to them (k).