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.
On sale of leaseholds.
() Knight v. Bowye (1857) 23 Beav. 609, 640 ; 27 L. J. Oh. 520; Hunt v. Luck, 1902, 1 Ch. 428, 432; 71 L. J. Ch. 239.
(u) Knight v. Bowyer, (1857) 2 D. & J. 421 ; 26 L. J. Ch. 769; and see Mumford v. Stohwasscr, (1874) 18 Eq. 556 ; 43 L. J. Ch. 694 ; Sunt v. Luck, aup.
(x) Hunt v. Luck, sup.
(y) A.-G. v. Stephens, (1855) 1 K. & J. 724, 750 ; 24 L. J. Ch. 694 ; rev. on other points, (1855) 6 D. M. &G. 111.
(z) Miles v. Langlry, (1829) 1 R. & M. 39 ; and see sup. p. 885.
(a) Martyr v. Lawrence, (1864) 2 D. J. & S. 261; diss. L. J. Knight-Bruce, and quecre: see, too, Baird v. Fortune, (1861) 4 Macq. 127, and Polden v. Bastard, (1865) L. R. 1 Q. B. 156; 35 L. J. Q. B. 92; cf. Francis v. Haywrd, (1882) 22 Ch. D. 177 ; 52 L. J. Ch. 291, which was really a case of parcel or no parcel, not of an easement.
(b) Hughes v. Jones, (1861) 3 D. F. & J. 307 ; 31 L. J. Ch. 83.
Notice of the legal estate being outstanding, is notice of the trusts on which it is held (h): and notice that the title deeds are in the possession of a third party, is, prima facie, notice of any charge he has upon the property (i) : so, notice that the title is a mortgage title, seems to be notice of any dealings by the mortgagee with the mortgagor which may have kept alive the equity of redemption (k).
Notice of legal estate being outstanding, its effect.
Where a person, entitled only for life, represented that she was seised in fee, and conveyed as if so seised, a person claiming under her for valuable consideration was held to he affected with notice; the settlement being the only document under which she could claim the estate (/). And, as Lord Iyyndhurst observed (m), no one could find fault with that decision; for either the party did or did not investigate the title; if he did not, he was guilty of great negligence; if he did, he must have seen that the party conveying to him had only a life estate. But the doctrine of constructive notice is not to be applied so as to invalidate the titles of persons dealing in good faith with tenants for life when exercising their powers under the S. L. Acts (n) : thus, where A. took a lease from H., a tenant by the curtesy, he demising as and believing himself to be absolute owner, and no inquiry was made as to his title, it was held the lease was valid under the S. L. Acts, though there were no trustees at the time it was granted (o).
Purchaser held to have notice of facts which he ought to have known.
(c) Hyde v. Warden, (1877) 3 Ex. D. 72 ; 47 L. J. Ex. 121 ; Reeve v. Ber-ridge, (1888) 20 Q. B. D. 523 ; 57 L. J. Q. B. 265. See Hanhury v. Litchfield, (1833) 2 M. &K. at p. 633, and Jones v. Smith, (1841) 1 Ha. 62; Wilbraham v .Livesey, (1854) 18 Beav. 206, 209.
(d) A.-G. v. Backhouse, (1810) 17 Ves. 283, 293.
(e) Robson v. Flight, (1865) 4 D. J. & S. 608; 34 L. J. Ch. 101, 226; inf. p. 890.
(/) See Darlington v. Hamilton, (1854) Kay, 550, 556; 23 L. J. Ch. 1000.
(g) Brumfitr. Morton, (1857) 3 Jur. N. S. 1198 ; Hyde v. Warden, and Reeve v. Berridge, sup.; Re White and Smith, 1896, 1 Ch. 637; 65 L. J. Ch. 481 ; Re Haedicke and Lipski, 1901, 2 Ch. 666 ; 70 L. J. Ch. 811 ;
Molyneux v. Haivtrey, 1903, 2 K. B. 487; 72 L.J. K. B. 873.
(A) Anon., (1648) Freem. 137.
(i) Hiern v. Mill, (1806) 13 Ves. at p. 122 ; Bryden v. Frost, (1838) 3 M. & C. 670; 8 L. J. N. S. Ch. 235; and see 1 Ha. 61 ; Worthington v. Morgan, (1849) 16 Si. 547; 18 L. J. Ch. 233 ; see Sug. 14th ed. 772. In order to create a good equitable mortgage by deposit, it is not necessary that all the material title deeds should be deposited ; Lacon v. Allen, (1856) 3 Dr. 579 ; 26 L. J. Ch. 18; Roberts v. Croft, (1857) 2 D. & J. 1; 27 L. J. Ch. 220.
(k) Hansard v. Hardy, (1812) 18 Ves. 455, 462 ; see Bailey v. Barnes, 1894, 1 Ch. 25; 63 L. J. Ch. 73; and as to titles under a foreclosure decree, see sup. p. 478.
A person has been held to be affected with notice of a fraud affecting a deed, and which the unusual manner in which it was executed ought to have suggested to his solicitor (p): so, where a family solicitor, who had prepared a marriage settlement, became the apparent purchaser of the estate under a fictitious exercise of the usual power of sale, and subsequently executed instruments purporting to vest the estate in the husband, and then, as the husband's solicitor, applied for a loan on mortgage, and delivered an abstract of the title as above referred to, and indorsed in the usual way with his name as solicitor, it was held that the purchaser had implied notice of his having been the solicitor who prepared the settlement, and of the irregularity of the nominal purchase (q).
Where deed is executed in an unusual manner.
(1) Jackson v. Howe, (1826) 2 S. & S. 472, 475 ; 4 L. J. Ch. 118 ; and see Roddy v. Williams, (1845) 3 J. & L. 1 ; Peto v. Hammond, (1861) 30 Beav. 495 ; 31 L. J. Ch. 354.
(m) Jones v. Smith, (1843) 1 Ph. 255 ; and see V.-C. Wigram's remarks in Neetom v. Clarkson, (1842)
2 Ha. 163, 173.
(n) Mogridge v. Clapp, 1892, 3 Ch. 382 ; 61 L. J. Ch. 534.
(o) S. C.
(p) Kennedy v. Green, (1834) 3 M. & K. 699 ; Greenslade v. Dare, (1855)20 Beav. 284.
(q) Robinson v. Briggs, (1853) 1
Where a purchaser had notice of another person having a judgment or warrant of attorney affecting the estate, and refrained from making any inquiry, he was held bound; though the incumbrance was in fact a mortgage (r) ; and, as a general rule, if a person knows that another has or claims an interest in the property for which he is dealing, he ought to inquire what that interest is ; and if he omit to do so, he may be bound, though the notice was inaccurate as to the particulars or extent of such interest (s); e.g., a purchaser, having notice that a legatee had released the executrix from a legacy, and that, in lieu thereof, the latter had by will devised a freehold estate to such legatee, was held to have notice of such devise being pursuant to a written agreement between the parties (t) : so, where a mortgagee or purchaser is informed that there are charges on the property, and he is aware of the existence of certain charges, but neglects, without any fraudulent motive, to make further inquiry, he is liable to be fixed with notice of all charges, the existence of which he might have learnt if he had made the inquiry (u) ; where the conveyance to a mortgagor was made free from incumbrances, but subject to unredeemed land tax, etc, and to all other payments ecclesiastical or civil charged upon or payable out of the land conveyed, a mortgagee who made no inquiry as to the existence of charges was held to have notice of an annual corn rent-charge (x). And where a mortgagee had notice that a bill, which formed part of the consideration for the purchase of the estate by the mortgagor, remained unpaid, he was held to be bound to inquire whether the vendor had any lien on the estate, the deed of conveyance leaving the point doubtful (y); whether the circumstance that a bill of exchange is made payable to the order of a married woman is notice that it relates to her separate estate, appears doubtful (z).