This section is from the book "Popular Law Library Vol7 Equity Jurisprudence, Trusts, Equity Pleading", by Albert H. Putney. Also available from Amazon: Popular Law-Dictionary.
"Notice is of two kinds - actual and constructive. Actual notice embraces all degrees and grades of evidence from the most direct and positive proof to the slightest circumstances from which a jury would be warranted in inferring notice. It is a mere question of fact, and is open to every species of legitimate evidence which may tend to strengthen or impair the conclusion. Constructive notice, on the other hand, is a legal inference from established facts; and like other legal presumptions, does not admit of dispute." 4
4 Williamson vs. Brawn, 15 N. Y., 354.
Constructive notice covers a very broad field; the best classification of this species of notice which has been given is the following:5
(b) The possession or tenancy of the party claiming the equity or title.
(c) Recital or reference in instruments of title.
(d) Lis pendens, i.e. pending suits relative to the particular piece of real property.
(e) Judgments, when properly docketed.
(f) Registration or recording of instruments.
A thorough treatment of the subject of construction notice is given by the Supreme Court of the United States in the case of Simmons Creek Coal Co. vs. Doran,6 the decision in which case was in part as follows:
"Apart from this, we hold appellant chargeable with notice. The rule is thus stated by the Virginia Court of Appeals, in Burwell vs. Fauber, 21 Grant, 446, 463: 'Purchasers are bound to use a due degree of caution in making their purchases, or they will not be entitled to protection. Caveat emptor is one of the best settled maxims of the law, and applies exclusively to a purchaser. He must take care, and make due inquiries, or he may not be a bona fide purchaser. He is bound not only by actual, but also by constructive notice, which is the same in its effect as actual notice. He must look to the title papers under which he buys, and is charged with notice of all the facts appearing upon their face, or to the knowledge of which anything there appearing will conduct him. He has no right to shut his ears or his eyes to the inlet of information, and then say he is a bona fide purchaser without notice.' Jones vs. Smith, 1 Hare, 43, 55; LeNeve vs. LeNeve, 2 L. C. Eq., 127. And Brush vs. Ware, 40 U. S., 15; Pet., 93, 114 (10, 672, 680), are cited.
5 Pomeroy on Equity Jurisprudence, Sec. 610 et seq.
6 142 U. S., 417.
"In Mundy vs. Vawter, 3 Gratt, 518, relied on by appellant, the registry of a deed of 'all the estate both real and personal, to which the said James was in any manner entitled in law or in equity,' was held not to be notice in point of law to a subsequent purchaser of the existence of the deed, nor would notice in point of fact of such existence and contents affect such purchase, unless he had further notice that the land purchased by him was embraced by the provision of the deed; 'and the proof of such notice, whether direct or positive, or circumstantial and presumptive, must be such as to affect the conscience of the purchaser, and is not sufficient if it merely puts him upon inquiry, but must be so strong and clear as to fix on him the imputation of mala fides.' But the latter branch of this ruling was disapproved of in Warren vs. Syme, 7 W. Va., 474; and in Fidelity Ins. T. & S. D. Co. vs. Shenandoah Valley R. Co., 32 W. Va., 244, 259, it is said that 'whatever is sufficient to put a person on inquiry is considered as conveying notice; for the law imputes a personal knowledge of a fact, of which the exercise of common prudence might have apprised him. When a subsequent purchaser has actual notice that the property in question is encumbered or affected, he is charged constructively with notice of all the facts and instruments, to the knowledge of which he would have been led by an inquiry into the incumbrance or other circumstance affecting the property of which he had notice.
"Lord Hardwicke observed in LeNeve vs. LeNeve, Amb., 436; 3 Atk., 646; 1 Ves., 140: That the taking of a legal estate, after notice of a prior right, makes a person a mala fide purchaser;' and the notes to that case in 2 L. C. Eq., 109, discuss at length the doctrine of knowledge, actual notice, express or implied, and constructive notice, with abundant citation of authority. The conclusion of the American editor is that actual notice embraces all degrees and grades of evidence, from the most direct and positive proof, to the slightest circumstances from which a jury would be warranted in referring notice, while constructive notice is a legal inference from established facts, and, like other legal presumptions, does not admit of dispute.
"Mr. Justice Story in his work on Equity Jurisprudence, Sec. 399, adopts the language of Chief Baron Eyer, in Plumb vs. Fluitt, 2 Anstr., 432, 438, that constructive notice is in its nature no more than evidence of notice, the presumption of which is so violent, that the court will not allow even of its being controverted.
"In later editions of that work Judge Redfield (11th Ed., Sec. 410a) says that the term constructive notice 'is applied, indiscriminately, to such notice as is not susceptible of being explained or rebutted, and to that which may be. It seems more appropriate to the former kind of notices. It will then include notice by the registry, and notice by lis pendens. But such notice as depends upon possession, upon knowledge of an agent, upon facts to put one upon inquiry, and some other similar matters, although often called constructive notice, is rather implied notice, subject to be rebutted or explained. Constructive notice is thus a conclusive presumption or a presumption of law, while implied notice is a mere presumption of fact.
"Vice-Chancellor Wigram in Jones vs. Smith, supra, laid it down that cases in which constructive notice had been established, resolved themselves into two classes, first, those in which the party charged had actual notice that the property in dispute was in some way affected, and the court has thereupon bound him with consecutive notice of facts to a knowledge of which he would have been led by an inquiry into the matters affecting the property, of which he had actual notice; and, secondly, those where the court has been satisfied that the party charged had designedly abstained from inquiry for the purpose of avoiding notice. If there is not actual notice that the property is in some way affected so that the case does not fall within the first class, and no fraudulent turning away from a knowledge of facts which the res gestae would suggest to a prudent mind or gross and culpable negligence, so as to bring it within the second, then the doctrine of constructive notice would not supply.