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 .
Notice is usually said to be either actual or constructive, but the cases and text books are absolutely lacking in harmony as to the line of demarcation between the two classes of notice, and any statements here made in regard thereto are ventured merely by way of suggestion. Fortunately it is immaterial whether notice is, in a particular case, to be regarded as actual or constructive, unless it is asserted as satisfying a statutory requirement of actual notice.51
It would seem that one might properly be said to have actual notice when he has information in regard to a fact, or information as to circumstances an investigation of which would lead him to information of such fact, while he might be said to have constructive notice when he is charged with notice by a statute or a rule of law, irrespective of any information which he may have, actual notice thus involving a mental operation on the part of the person sought to be charged, and constructive notice being independent of any mental operation on his part. In the nature of things, information as to a matter necessarily varies as regards the particularity of the information, and there seems, in principle, no distinction between notice of a fact based on positive information that that very fact exists, and notice based on information creating a suspicion that the fact exists.
Applying such a criterion, a purchaser may have actual notice of a prior claim on the land, not only when the nature of the claim is specifically stated to him, but also when he is told that a certain person has a claim of a character not mentioned, he thus having information sufficient to enable him to inquire as to the existence of such claim,52 and he may be regarded as having actual notice of the claim though he has not been actually informed that any claim exists, as for instance when he pays a grossly inadequate price for the property,52a or, in England, when the vendor refuses to produce the title papers. Applying the same criterion, a purchaser has constructive notice of all instruments in his chain of title, irrespective of whether he has any information in regard thereto, and also of all statements or references in an instrument affecting the title, of the existence of which instrument he has actual or constructive notice, although he has not seen such instrument.53 Likewise, the notice with which a principal may be charged by reason of notice to his agent,54 may properly be referred to as constructive notice, it being entirely independent of any mental consciousness on the part of the principal.
49. Marston v. Catterlin, 270 Mo. 5, 192 S. W. 413.
50. Cypress Lumber Co. v. Shadel. 52 La. Ann. 2094, 28 So.
292; Padgitt v. Still, - Tex. Civ. App. - , 192 S. W. 1110.
51. Ante, Sec.Sec. 568, note 50, 571, note 68.
Adopting the suggested line of demarcation between actual and constructive notice, a purchaser might, under particular circumstances, be regarded as having both actual and constructive notice. In the case, for instance, of possession of the property by a third person, the purchaser is charged with constructive notice of an adverse claim under which such person is holding,55 irrespective of his knowledge of such possession, as when he is living in another state. But also he may be regarded, provided he knows of such possession, and only then, as having actual notice of the claim on which such possession is based. And so the presence of structures upon the property may be sufficient to charge a purchaser with actual notice of an easement upon the property, provided he has actual knowledge of such structures. But if he were to be charged with notice of the easement by reason of the existence of the struc52. Ante, Sec. 569, note 52.
52a. Ante, Sec. 569, notes 55, 56.
53. Ante, Sec. 572.
54. Ante, Sec. 570.
55. Ante, Sec. 571(a), note 68.
Tures, independently of his having knowledge of them, the notice would be constructive and not actual.56