As above stated, a restrictive agreement is enforced in equity against a subsequent purchaser only when he takes with notice thereof.52 Such notice may be either actual or constructive,53 and the purchaser is, in accordance with the general rule as to notice,54 charged with notice of anything showing or imposing such a restriction which may be contained in a conveyance in the chain of title under which he claims,55 and whether such a conveyance is recorded is necessarily immaterial in this regard.56

Y. 244, 1 Am. St. Rep. 816, 17 N. E. 335; Fuller v. Arms, 45 Vt. 400.

51. Holloway Brothers v. Hill (1902), 2 Ch. 618. See Hartz v. Kales Realty Co., 178 Mich. 560, 146 N. W. 160; Pavkovich v. Southern Pac. R. Co., 150 Cal. 39, 87 Pac. 1097.

In Los Angeles Terminal Land Co. v. Muir, 136 Cal. 36, 68 Pac. 308, it appears to be considered that if the restriction does not in terms purport to bind assigns or grantees, it cannot be enforced against them. And see Pythian Castle Ass'n of Sacramento v. Daroux, 172 Cal. 510, 157 Pac. 594; Wood v. Stehrer, 119 Md. 143, 86 Atl. 128.

52. Carter v. Williams, L. R. 9 Eq. 678; Nottingham Co. v. Butler, 16 Q. B. Div. 778, 787; Rowell v. Satchell (1903) 2 Ch. 212; Judd v. Robinson, 41 Colo. 222, 124 Am. St. Rep. 128, 14 Ann. Cas. 1018, 92 Pac. 724; Washburn v. Miller,

117 Mass. 376; Moller v. Presbyterian Hospital, 65 N. Y. App. Div. 134.

53. Wilson v. Hart, 1 Ch. App. 463; Spicer v. Martin, 14 App. Cas. 12; Patman v. Harland, 17 Ch. Div. 353.

54. Post, Sec. 572.

55. Patman v. Harland, 17 Ch. Div. 353; Wiegman v. Kusel, 270 111. 520, 110 N. E. 884; Duncan v. Central Passenger Ry. Co., 85 Ky. 525, 4 S. W. 228; Peck v. Conway, 119 Mass. 546; Oliver v. Kalick, 223 Mass. 252, 111 N. E. 879; Zoller v. Goldberg, 183 Mich. 197. 149 N. W. 089; Wabash, St. L. & P. Ry. Co., 24 Mo. App. 199; Brewer v. Marshall, 19 N. J. Eq. 537; Smith v. Graham, 217 N. V. 655, 112 N. E. 1076. See Norfleet v. Cromwell, 64 N. C. 1.

56. Occasional statements that the purchaser is, in the particular jsase, charged with notice of the agreement because the conveyif, however, the agreement is contained in a conveyance which is not in the chain of title, but which was made by a prior owner of neighboring land, the question of its record may be material for the purpose of charging a purchaser with notice of the agreement, and such may also be the case when the agreement is not contained in a conveyance of land, but is incorporated in an independent instrument. The former case, that of an agreement contained in a conveyance not in the chain of title of the person against whom it is sought to enforce it, is elsewhere discussed,57 and the question of the record of an independent restrictive agreement will here alone be referred to. Whether such an agreement is entitled to be recorded, so that its record will affect the purchaser with constructive notice thereof is obviously a question to be determined by the language of the state recording law.58

In accordance with the general equitable rule that a purchaser with notice from a purchaser without notice takes free of the equity,59 the effect of the acquisition of the property by one having no notice of the restrictive agreement is to put an end to the enforceability of the agreement as against the land.60

There are in England occasional dicta61 that a bona fide purchaser for value of an equitable, as distinguished from a legal, estate, takes subject to the burden of a restrictive agreement, the element of notice ance in his chain of title in which it is contained is of record. (Schadt v. Brill, 173 Mich. 647, 45 L. R. A. (N. S.) 726, 139 N. W. 878; Miller v. Klein, 177 Mo. App. 557, 160 S. W. 562; Bowen v. Smith, 76 N. J. Eq. 456, 74 Atl. 675) appear to be beside the mark.

57. Post, Sec. 567(d).

58. That it is entitled to record see Bradley v. Walker, 138 N. Y. 291, 33 N. B. 279; Boyden v. Roberts, 131 Wis. 659, 111 N. W. 701;

Being thus material only when the agreement is asserted as against a purchaser of the legal estate. This accords with the rule generally stated, that the doe-trine of bona fide purchase for value does not operate to protect the purchaser of a merely equitable interest, but the soundness of the rule from the standpoint of principle may be doubted62 and, as has been remarked, it is difficult to see the justice of exempting the bona fide purchaser of a legal fee simple from the burden of a restrictive covenant while not exempting such a purchaser of an equitable fee simple.63

Sjoblom v. Mark, 103 Minn. 193. 15 L. R. A. (N. S.) 1129, 114 N. W. 746.

59. Post, Sec. 575.

60. Roak v. Davis, 194 Mass. 481, 80 N. E. 690; Wilkes v. Spooner [1911] 2 K. B. 473.

61. London & S. W. Rwy. Co. v. Gomm, 20 Ch. Div. 562; Rogers v. Hosegood [1900], 2 Ch. 388. 405; Osborne v. Bradley [1903], 2 Ch. 446, 451.