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.
(k) Land Charges Act, 1900, s. 1 ; and Order of 3rd August, 1900.
(I) Hodgson v. Dean, (1825) 2 S. & S. 221; see, as to the extent to which a memorial is notice, Pochard v. Fulton, (1844) 1 J. & L. 413 ; and see Kettlewell v. Watson, (1884) 26 Ch. D. 501 ; 53 L. J. Ch. 717.
(m) Wason v. Wareing, (1852) 15 Beav. 151.
(n) See Procter v. Cooper, (1853) 2 Dr. 1 ; affd., (1854) 1 Jur. N. S. 149.
(o) See Lord Lyndhurst's remarks
To consider, however, the cases falling within the rules laid down by V.-C. Wigram, and which, with the above exceptions, seem to comprise the authorities on the subject. It has been held, that notice of a post-nuptial, and apparently voluntary, settlement is constructive notice of the ante-nuptial agreement on which it is founded (p) ; that actual notice to a purchaser, of an instrument as one affecting the estate, is constructive notice of all instruments to which an examination of the first would have led him (q) ; even though such prior instruments are not actually recited, but there is only a recital that the property is subject to limitations which in fact correspond with the limitations thereby created (r) : that actual notice of a deed is constructive notice of everything which might be learnt from requiring its production, - as, e.g. that it was deposited as a security (s) : - and that notice of a prior conveyance, and of the then vendor's title, is notice of his lien for unpaid purchase-money (t). A purchaser is not entitled to treat recitals in a deed as indisputable (u) ; if he has notice of a charge or outstanding interest, he must protect himself by seeing that it is in fact paid off or got in, and cannot rely on the assurance of the vendor or his solicitor that such is the case (x); and an inaccurate recital of a will has been held to be notice of its real contents (y). It has even been held that a recital that the property was held upon such trusts for the use of A., B., and C. (parties to the conveyance) " for such estates in possession, reversion, or remainder as they became entitled to after the death of D.," was notice of prior trusts in favour of other parties, which would have been discovered by an examination of the instrument creating the trusts which were referred to in the recital (2). This, however, seems to be an improper extension of the ordinary doctrine. As observed by Mr. Pepys (Lord Cottenham), arguendo for the purchaser, "notice of the existence of a trust for A. cannot impose on a purchaser an obligation to inquire whether there is not also a trust for B." So, notice of an equitable claim, as affecting an unspecified portion of the property, is notice of the claim as in fact affecting the entirety (a).
Purchaser having notice of a particular fact or instrument held to have notice of connected facts and instruments.
On Jackson v. Rowe, in 1 Ph. 255 ; and to the same effect Sir J. Wigram in Neesom v. Clarkson, (1842) 2 Ha. 163, 173, and West v. Reid, (1843) 2 Ha. 249, 260; 12 L. J. N. S. Ch. 245 ; Patman v. Borland, (1881) 17 Ch. D. 353 ; 50 L. J. Ch. 642 ; Imray v. Oakshette, 1897, 2 Q. B. 218 ; 66 L. J. Q. B. 544. As to the effect of the non-production of title deeds in reference to the doctrine of constructive notice, see sup. pp. 492, 877.
(p) Ferrars v. Cherry, (1700) 2 Vern. 384 ; as to the authority of the case 'which has been questioned, see Mr. Raithby's note, 3rd ed.
(q) Coppin v. Fernyhough, (1788) 2
Br. C. C. 291 ; Bisco v. Earl of Banbury, (1676) 1 Ch. Ca. 287, 291 ; Tanner v. Florence, (1675) ib. 259, 260.
(r) Neesom v. Clarkson, (1842) 2 Ha. 163, 165.
(s) Peto v. Hammond, (1861) 30 Beav. 495 ; 31 L. J. Ch. 354.
(t) Davies v. Thomas, (1836) 2 Y. & C. 234. See Cator v. Earl of Pembroke, (1783) 1 Br. O. C. 301, 302; Sug. 14th ed. 553 ; and Butler v. Lord Portarlington, (1841) 1 D. & War. 20 ; A.-G. v. Hall, (1853) 16 Beav. 388; and see cases cited sup. n. (o).
(u) Trinidad Asphalte Co. v. Coryat, 1896, A. C. 587; 65 L. J. P. C. 100.
A purchaser of a house has been held to have notice of an agreement to grant a smoke easement to an adjoining owner, from the mere fact of there being fourteen chimney-pots on the top of the chimney-stack, and only twelve flues in the house (b). If the condition of the property at the date of the contract is such as to suggest inquiry, the purchaser may be fixed with constructive notice of rights of way, or other easements affecting it: thus, where A. purchased from B. a house, part of an estate agreed to be let to B. on a building agreement, and the house was built partly over an archway leading to mews in the rear, but not then forming the only means of access thereto, it was held that A. had constructive notice that when the building scheme was completed, the road under the archway would be the only approach to the mews; and that a right of way, though not expressly reserved in the assignment to A., was reserved by implication (c). But the mere fact of there being windows in a house overlooking property does not affect a purchaser with any notice of an agreement as to the right of light through them (d).
Notice from physical condition of the property.
(x) Jared v. Clements, 1903, 1 Ch. 428; 72 L. J. Ch. 291.
(y) Hope v. Liddell, (1855) 21 Beav. 183 ; 25 L. J. Ch. 90.
(z) Malpas v. Ackland, (1827) 3
(a) A.-G.v.Flint, (1844) 4 Ha. 147.
(b) Hervey v. Smith, (1856) 22 Beav. 299 ; 1 K. & J. 389; sed qucere.
Where a rightful owner is in possession of corporeal hereditaments, a purchaser, dealing for any interest in the property, is presumed to have notice of the title under which such possession is held : thus, where the purchasers of mines entered into possession under the agreement, but never took a conveyance, a subsequent purchaser of the land, without any exception of the minerals, was held to have notice of the agreement (e).
Notice from dealing with rightful owner in possession.