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.
(r) Per Lindley, L. J., in Bailey v. Barnes, 1894, 1 Ch. 25, 34 ; 63 L. J. Ch. 612.
(s) Plumb v. Finite, (1791) 2 Anstr. at p. 438 ; and see Sug. 14th ed. 755.
(t) Patman v. Harland, (1881) 17 Ch. D. 353, 357, per Jessel, M. E,.; 50 L. J. Ch. 642; Jackson v. Rowe,
(1826) 2 S. & S. 472; 4 L. J. (O.S.) Ch. 118; Whitbread v. Jordan, (1835) 1 Y. & C. 303; Kennedy v. Green, (1834) 3 M. & K. 699.
(u) Peto v. Hammond, (1861) 30 Beav. 495 ; 31 L. J. Ch. 354 ; Oliver v. Hinton, 1899, 2 Ch. 264 ; 68 L. J. Ch. 583.
(x) Patman v. Harland, sup.
It was stated by V.-C. Wigram that the cases in which constructive notice has been established resolve themselves into two classes; first, cases in which the party charged has bad actual notice that the property in dispute was, in fact, charged, incumbered, or in some way affected; and the Court has, thereupon, bound him with constructive notice of facts and instruments, to a knowledge of which he would have been led by an inquiry for the charge, incumbrance, or other circumstance affecting the property, of which he had actual notice; and, secondly, cases in which the Court has been satisfied, from the evidence before it, that the party charged had designedly abstained from inquiry, for the very purpose of avoiding notice (c) ; and is therefore guilty of wilful ignorance, which is not to be distinguished in its equitable consequences from actual knowledge (d). And, in a later case, the V.-C, with reference to his previous judgment, repudiates the notion, (which had been attributed to him,)
"that there may not be a degree of negligence so gross that a Court of Equity may treat it as evidence of fraud - impute a fraudulent motive to it - and visit it with the consequences of fraud, though (morally speaking) the party charged may be perfectly innocent; " and further remarks, "Negligence, as I understand the term, supposes a disregard of some fact known to the purchaser, which, at least, indicated the existence of that fact, notice of which the Court imputes to the purchaser (e)."
Propositions of Wigram, V.-C. as to constructive notice,
(y) lb.; English and Scottish Mer-cantile Co. v. Brunton, 1892, 2 Q. B. 700 ; Be Valletort Sanitary Co., 1903, 2 Ch. 654; 72 L. J. Ch. 674.
(z) Jones v. Smith, (1843) 1 Ph. 244; and see Re Bright'a Tr., (1856) 21 Beav. 430 ; 25 L. J. Ch. 449.
(a) Carter v. Williams, (1870) 9 Eq.
678 ; 39 L. J. Ch. 5G0.
(b) Earl of Gainsborough v. Wat-combe Co., (1885) 54 L. J. Ch. 991 ; Bailey v. Barnes, 1894, 1 Ch. 25, 35; 63 L. J. Ch. 73. As to the effect of the sub-section dealing with constructive notice through a solicitor, etc, see inf. p. 897.
The propositions of the V.-C. seem, however, scarcely to provide for those cases in which a purchaser is affected with constructive notice, not through his personal knowledge of any fact leading him to actual notice, but by his neglect of the usual and recognized means for acquiring such knowledge or notice (/). For instance, a public Act of Parliament are capable of extension, semble.
Mere negligence may have the effect of notice.
(c) Jones v. Smith, (1841) 1 Ha. 43, 55; Agra Bank v. Barry, (1874) L. R. 7 H. L. 135, 146.
(d) Owen v. Roman, (1853) 17 Jur. 861 ; see Northern Ins. Co. v. Whipp, (1884) 26 Ch. D. 482 ; 53 L. J. Ch. 629 ; Taylor v. London and County Bky. Co., 1901, 2 Ch. 231, 259; 70 L. J. Ch. 477.
(e) West v. Held, (1843) 2 Ha.
249, 257, 259 ; 12 L. J. N. S. Ch. 245.
(/) See Ware v. Lord Egmont, (1854) 4 D. M. & G. 460; Jones v. Williams, (1857) 24 Beav. 47; Sour-sot v. Savage, (1866) 2 Eq. 134; 35 L. J. Ch. 627; Lloyd's Banking Co. v. Jones, (1885) 29 Ch. D. 221 ; 54 L. J. Ch. 931 ; Bailey v. Barnes, 1894, 1 Ch. 25 ; 63 L. J. Ch. 73.
Is notice to all the world (g) : so is a lis pendens (Ii), if registered under the Judgments Act, 1839 (i), at the office of Land Registry (k) ; or a deed or will registered in a registered county or entered on Court Rolls (if the purchaser search over the period within which the instrument is registered (/) or the entry is made) ; or a judgment entered at the Common Pleas, if the purchaser search the register: so, if a person being referred for information to another, neglect to apply to him, he will be held to have had notice of what he might have learnt on inquiry (m) : so, if a purchaser, without any fraudulent intention (n), (the absence of which might be evidenced by his payment of a full price for the property,) were to accept a conveyance without any previous investigation of title, relying on the mere assurance of the vendor that he was absolute owner, he would, nevertheless, be held to have constructive notice of any defect appearing on the title (o), though he could not be said to have actual notice of any fact indicating the existence of such defect.
(g) Sug. 14th ed. 758 ; though it is a local Act; Barraud v. Archer, (1829) 2 Si. 433 ; aff., (1831) 2 R. & M. 751.
(h) lb. Whether it is actual notice, so as to prevail against a registered instrument, quaere ; Wallace v. Marquis of Donegal, (1837) 1 D. & Wal. 461, 488.
(i) See s. 7. But it is said to be only notice of what is charged on the bill, and not of equities which may possibly arise out of the matters in question in the suit; see Shalcross v. Dixon, 5 Jarm. Conv. 3rd ed. 493 ; Bully. Hutchens, (1863) 9 Jur. N. S. 954 ; see as to Ireland, the Judgments (Ireland) Act, 1844 ; Jennings v. Bond, (1845) 2 J. & L. 720, et quaere. A special case filed (see R. S. C. Ord. XXXIV. r. 3) under the repealed Act (13 & 14 Vict. c. 35) was a lis pendens (s. 17) ; so is an administration suit, as respects estates sold under the decree; Drew v. Earl of Norbury, (1846) 3 J. & L. 267 ; cf. Price v. P.,
(1887) 35 Ch. D. 297; 56 L. J. Ch. 530. The doctrine of lis pendens does not apply to personalty other than chattels real; Wigram v. Buckley, 1894, 3 Ch. 483 ; 63 L. J. Ch. 689. As to vacating a lis pendens, see Baxter v. Middleton, 1898,1 Ch. 313 ; 67 L. J. Ch. 200 ; Reilly v. Richardson, (1899) 43 Sol. J. 457 ; King v. Barber, (1902) 47 Sol. J. 110. As to the doctrine of lis pendens being notice, see Bellamy v. Sabine, (1857) 1 D. & J. 566 ; 26 L. J. Ch. 797 ; and inf. p. 892.