This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
8. See, e. g.. Lea v. Polk County Copper Co., 21 How (U. S.) 493, 16 L. Ed. 203; Dean v. Roberts, 182 Ala. 221, 62 So. 44; Turner v. Wilkinson. 72 Ala. 367; Myers v. Berven, 166 Cal. 484, 137 Pac. 260; Mays v. Redman, 134 Ga. 870. 68 S. E. 738; Pitts v. Cable. 44 111. 103: Walker v. Cameron, 78 Iowa. 315, 43 N. W. 199; Winlock v. Munday. 156 Ky. 806, 162 S. W. 76; Haas v. Fontenot, 132 La. 812, 61 So. 831; Beidler v. City Bank of Battle Creek, 172 Mich. 381, 137 X. \V. 717: Conn v. Boutwell, 101 Miss. 353. 58 So. 105; Har-rington v. Erie County Sav Bank, 101 N. V. 257, I N E 346 Fles-ner v. Cooper, - Okla. - , 134 Par
This principle, that equitable relief will be denied as against a purchaser for value and without notice, who has acquired the legal title, is fundamental, the court in effect refusing to deprive him of his right of property in such case because it is not unconscientious for him to retain it. On the other hand equity regards as unconscientious the retention of the right of property, as against a prior equity, by one who acquired it with notice of the equity, or without paying value, and will give relief against him accordingly.9
The rule that a purchaser for value without notice will be protected against a prior equity, and its complementary rule, that a purchaser with notice or not for value will not be protected, applies regardless of the character of the equity, whether, for instance, it be an express trust, an implied trust, a right to set aside a conveyance, a right to call for a conveyance, a right to reform a conveyance, an equity of redemption, or an equitable lien.
379; Elwert v. Reid, 70 Ore. 318, 139 Pac. 918, 141 Pac. 540; Bigley v. Jones, 114 Pa. St. 510, 7 Atl. 54; High v. Batte, 10 Yerg. (Tenn.) 335; Hennessy v. Blair, 107 Tex. 39, 173 S. W. 871; Vermont Marble Co. v. Mead, 85 Vt. 20, 80 Atl. 852; Croup v. De Moss, 78 Wash. 128, 138 Pac. 671; Cresap v. Brown, 69 W. Va. 658, 72 S. E. 751.
9. See e. g. Gilley v. Denman, 185 Ala. 561, 64 So. 97; Gilbert v. Sleeper, 71 Cal. 290, 12 Pac. 172; New York, New Haven & H R. Co. v. Russell, 83 Conn. 581, 78 Atl. 324; Gamble v. Hamilton, 31 Fla. 401, 12 So. 229; Finch v. Beal, 68 Ga. 594; Mason v. Mullahy, 145 111. 383, 34 N. E. 36; Walter v. Cox, 25 Ind. 271; Burt Zaiser Co v. Fin-negan, 161 Iowa, 631, 143 N. W.
486; Price v. Bassett, 16S Mass. 598, 47 N. E. 243; Converse v. Blumrich, 14 Mich. 109, 90 Am. Dec. 230; Marshall v. Hill, 246 Mo. 1, 151 S. W. 131; Veith v. Mcmurtry, 26 Neb. 341, 42 N. W 6; Brinton v. Scull, 55 N. J. Eq. 747, 35 Atl. 843; Bellamy v. Andrews, 151 N. C. 256, 65 S. E. 963; Horgan v. Russell, 24 N. D. 490, 43 L. R. A. (N. S.) 1150, 140 N. W. 99; Taylor v. Taylor, 69 Ore. 541, 139 Pac. 852; Duff v. Mcdonough, 155 Pa. St. 10, 25 Atl. 608; Bristow v. Rosen-burg, 45 S. C. 614, 23 S. E. 957; Sautelle v. Carlisle, 13 Lea (Tenn.) 391; Ayres v. Jack, 7 Utah, 249, 26 Pac. 300; Curtis v. Lunn, 6 Munf. (Va.) 42; Crowley v. Byrne, 71 Wash. 444, 129 Pac. 113; Parker v. Brast, 45 W. Va. 339, 32 S. E. 269.
- Claimant under quitclaim deed. The question whether one claiming under a quitclaim deed may hold as a bona fide purchaser for value as against prior equities, not based on the recording act, has occasionally been adjudicated adversely to such claimant.9a Such a question is for the most part analogous to the question hereafter discussed,9b as to the rights of such claimant as against an unrecorded conveyance, but when only prior equities are outstanding it is somewhat difficulty to construe the conveyance, even though in the form of a quitclaim deed, as intended to convey the legal title subject to such outstanding equities Consequently, there might be stronger reason for protecting tin-grantee under such a deed as against a prior equity, than as against a prior unrecorded deed.
- Subsequent acquisition of legal title. Occasionally it happens that a "purchaser for value does not acquire the legal title at the time of his purchase, thai is, at the time of his payment of the consideration, but acquires it at a later time. He is in such case in the position of the holder of an equity acquiring the legal title, if such subsequent acquisition of the legal title is effected by him without notice on his part of a the second mortgagee.11a The right of a bona fide pm -chaser thus to protect himself by the subsequent acquisition of the legal title is, however, subject to a qualification, to the effect that such acquisition must not involve a breach of trust, as regards the holder of the prior equity, upon the part of the person from whom the legal title is acquired.12 Whether the trust must be an express trust, and whether the trustee or the purchaser must have notice of the trust, appears not to be definitely settled.13
9a. Derrick v. Brown, 66 Ala. 162; Hannan v. Seidentopf, 113 Jowa. 658, 86 N. W. 44; Gibson v .Morris State Bank, 49 Mont. 60, 140 Pac. 76: Hudman v. Henderson, 58 Tex. Civ. A.pp. 358, 124 S. W. 186.
9b. Post, Sec. 567(111), notes 14-23
9c. See editorial note, L0 Columbia Law Rev. at p. 371.
In Missouri the view has been adopted that, while a purchaser holding under a quitclaim deed may claim as against a prior unrecorded deed as being within the protection afforded by the recording acts, he cannot thus claim as against an equity which could not be made the sub of record, such as a right to set aside the deed to his grantor for fraud. Hendricks v. Calloway, 211 Mo. 536, 111 S. W. 60; Starr v. Bartz, 219 Mo. 47, 117 S. W. 1125. it be is to be regarded, however an innocent purchaser for the purpose of protection against a prior unrecorded conveyance, he should properly, it would seem, be so regarded for the purpose of pro prior under the general rule.
2 R. P. - 62 prior equity in favor of another, it operates to protect him as against such equity.10 Indeed, by perhaps the weight of authority, the holder of a later equity, if a bona fide purchaser thereof for value, may protect himself as against an earlier equity by acquiring the legal title, even though he does so after he has notice of the earlier equity, and merely for the purpose of securing priority.11 So it is well settled in England that a third mortgagee, who has only an equitable title subsequent to that of the second mortgagee, may, by acquiring the legal title of the first mortgagee, secure priority over