ment to himself of outstanding mortgages or terms.1 Having once taken with notice of the trust, he is a trustee in law, and a trustee cannot defeat the interests of his cestui que trust; on the contrary, all the interest that the trustee, or constructive trustee, shall thus buy in, will inure to the benefit of the title for the cestui que trust.2

§ 218. Of course, the opposite proposition is also true, that a purchaser for a valuable consideration without actual or constructive notice of the trust, holds the property discharged of the interest of the cestui que trust. It is thus stated on great authority: "A purchaser, bona fide without notice of any defect in his title at the time he made the purchase, may buy in a statute or mortgage, or any other incumbrance, and if he can defend himself at law by any such incumbrance bought in, his adversary shall never be aided in a court of equity for setting aside such incumbrance, for Equity will not disarm a purchaser, but assist him; and precedents of this nature are very ancient and numerous; viz., where the court hath refused to give any assistance against a purchaser, either to an heir, or to a widow, or to the fatherless, or to creditors, or even to one purchaser against another." And it may be added that nothing is clearer than that a purchaser for valuable consideration without notice of a prior equitable right, obtaining the legal estate at the time of his purchase, is entitled to priority in equity as well as at law, according to the well known maxim that where equities are equal the law shall prevail. But while a purchaser for value without no

1 Moloney v. Kernan, 2 Dr. & W. 31; Brook v. Bulkeley, 2 Ves. 498.

2 Bovey v. Smith, 1 Vern. 145; Kennedy v. Daly, 1 Sch. & L. 37. 8 Bassett v. Nosworthy, Ca. t. Finch, 102; 2 Lead. Ca. Eq. 1 & notes; Jerrard v. Saunders, 2 Ves. Jr. 457; Goleborn v. Alcock, 2 Sim. 552; Sanders v. Deligne, Freem. 123; Fagg's Case, 1 Vern. 52; 1 Ch. Ca. 68; Harcourt v. Knowel, 2 Vern. 159; Siddon v. Charnells, Bunb. 298; Jones v. Powles, 3 M. & K. 581; Willoughby v. Willoughby, 1 T. R. 763; Blake

tice may lay hold upon any plank to save himself, he cannot, after notice of the trust, take any conveyances from the trustee of outstanding legal interests; for that is a breach of the trust, and he cannot commit a breach of the trust to protect himself.1 But a purchase of an equitable interest only, although for a valuable consideration and without notice, cannot prevail against a legal title. In law the legal title must always prevail, and in equity the legal title will prevail if the equities are equal.2

v. Hungerford, Pr. Ch. 158; Charlton v. Low, 3 P. Wms. 328; Ex parte Knott, 15 Ves. 609; Shine v. Gough, 1 B. & B. 436; Bowen v. Evans, 1 Jon. & La. 264; Boone v. Chiles, 10 Pet. 177; Watson v. Le Roy, 6 Barb. 485. Walwyn v. Lee, 9 Ves. 24; Varick v. Briggs, 6 Paige, 325; Demarest v. Wynkoop, 3 Johns. Ch. 147; Dan v. McKnight, 6 Halst. 385; Howell v. Ashmore, 1 Stockt. 82; Heilner v. Imbrie, 6 S. & R. 401; Mundine v. Pitts, 14 Ala. 84; Tomkins v. Powell, 6 Leigh, 576; Woodruff v. Cook, 1 Gill & J. 270; Whittick v. Kane, ib. 202; High v. Batte, 10 Yerg. 335; Jones v. Zollicoffer, 2 Taylor, 214; Owings v. Mason, 2 A. K. Marsh. 384; Halstead v. Bank of Kentucky, 4 J. J. Marsh. 554; Blight v. Banks, 6 Mon. 198; Hughson v. Mandeville, 4 Des. 87; Goodtitle v. Cummings, 8 Blackf. 179; Maywood v. Lubcock, 1 Bail. Eq. 382; Brown v. Budd, 2 Cart. 442; Fletcher v. Peck, 6 Cranch, 36; Alexander v. Pendleton, 8 Cranch, 462; Vattier v. Hinds, 7 Pet. 252; Dana v. Newhall, 13 Mass. 498; Connecticut v. Bradish, 14 Mass. 296; Trull v. Bigelow, 16 Mass. 406; Boynton v. Rees, 8 Pick. 29; Gallatian v. Erwin, Hopk. 48; 8 Cow. 36; Bumpus v. Platner, 1 Johns. Ch. 213; Griffith v. Griffith, 9 Paige, 315; Mott v. Clark, 9 Barr, 399; Brackett v. Miller, 4 W. & S. 102; Filby v. Miller, 1 Casey, 264 ; Rutgers v. Kingsland, 3 Halst. Ch. 178, 658; Holmes v. Stout, 3 Green, Ch. 492; City Council v. Paige, Spear, Ch. 159; Lacy v. Wilson, 4 Munf. 413; Curtis v. Lanier, 6 Munf. 42; Dixon v. Caldwell, 15 Ohio St. 412; Dillayev. Commercial Bank, 51 N. Y. 345; Carter v. Carter, 3 K. & J. 639; Sugd. V. & P. 740; Colesbury r. Dart, 58 Ala. 573; Hamilton v. Mound City Mut. Life Ins. Co. 3 Tenn. Ch. 124.

1 Saunders v. Dehew, 2 Vern. 271; Freem. 123; Allen v. Knight, 5 Hare, 272; Terrett v. Crombie, 6 Lansing, 82.

2 Snelgrove v. Snelgrove, 4 Des. 274; Daniel v. Hollingshead, 16 Ga. 196; Larrow v. Beam, 10 Ohio, 148; Jones v. Zollicoffer, 2 Taylor, 214; Brown v. Wood, 6 Rich. Eq. 155; Blake v. Heyward, 1 Bail. Eq. 208; Shirras v. Caig, 7 Cranch, 48; Jones v. Jones, 8 Sim. 633; Pensonneau v. Bleakley, 14 Ill. 15; Boone v. Chiles, 10 Pet. 177; Kramer v. Arthurs, 7 Barr, 165; Wailes v. Cooper, 24 Miss. 208; Sergeant v. Ingersoll, 7 Barr, 340; 3 Harris, 343; Flagg v. Mann, 2 Sumn. 486, 556; Cottrell v.

§ 219. This protection of a bona fide purchaser for value without notice is clear and certain, but it is hedged about with great care. It is said to be a shield to protect, and not a sword to attack. It is surrounded with restrictions, so that it may not become a cloak for fraud. The defendant in a suit in equity must clearly and unequivocally swear in his answer that he is a purchaser for value without notice,1 and he must set forth all the particulars of the purchase, and the title or pretended title of the person from whom he purchased.2 He must show an actual conveyance and not merely an agreement for a conveyance; 3 and it must be shown that the consideration money named in the deed was paid in good faith. It is not enough that the consideration was secured to be paid; nor is a recital of payment in the deed sufficient: there must be an actual payment. Then he must also make an explicit denial of notice of the title which is attempted to be set up. A denial of knowledge of the particular person who might assert such title is not sufficient; notice must be positively and affirmatively denied, and not evasively or inferentially. If particular instances or circumstances of notice. Hughes, 15 C. B. 532; Vattier v. Hinde, 7 Pet. 252; Parsons v. Jury, 1 Yerg. 296; Gallion v. McCaslin, 1 Blackf. 91; Marles v. Cooper, 22 Miss. 208.

1 Sugd. V. & P. 507; Marshall v. Frank, 8 Pr. Ch. 480; 1 Anst. 14; Blacket v. Langlands, Sel. Ca. Ch. 51; Gilb. 58.

2 Walwyn v. Lee, 9 Ves. Jr. 26; Story v. Winsor, 3 P. Wms. 279; Head v. Egerton, 1 Vern. 246; Trevanion v. Morse, 3 Ves. 32, 226; Amb. 421; Jackson v. Rowe, 4 Russ. 514; Lanesborough v. Kilmaine, 2 Moll. 403; Hughes v. Garth, Amb. 421; Page v. Lever, 2 Ves. Jr. 450; Dobson v. Leadbeater, 13 Ves. 230.

3 Head v. Egerton, 1 P. Wms. 281; Brandlyn v. Ord, 1 Atk. 571. Millard's Case, Freem. 43; Wagstaff v. Read, 2 Ch. Ca. 156; More v. Mayhow, 1 Ch. Ca. 34; 2 Freem. 175; Day v. Arundel, Hard. 510; Hardingham v. Nichols, 3 Atk. 304; Moloney v. Kernan, 2 Dr. & War. 31; Maitland v. Wilson, 3 Atk. 814. But see Parker v. Crittenden, 37 Conn. 148. Kelsal v. Bennett, 1 Atk. 522; Brompton v. Barker, cited 2 Vern. 159, is not law.

63 P. Wms. 244, n. (f); Bran v. Marlborough, 2 P. Wms. 492 (6 Res.); Hughes v. Garner, 2 Y. & Col. Exch. Ca. 328.

or of fraud are alleged, there must be clear, special, and particular denials of each and every circumstance. These stringent rules are necessary for the protection of the equitable interests of one person, where the legal title is in the hands of another.2

§ 220. These leading propositions are simple and plain enough, but difficulties frequently arise as to what is a valuable consideration, and whether a purchaser had notice of the equitable estate, and when and how he obtained it. It is well established that a conveyance, to be good against the equitable interest of a cestui que trust, must be for a valuable consideration, and that a conveyance for a good consideration, as for love and affection, is not sufficient. But if the consideration is valuable, it need not be adequate: mere inadequacy of consideration will not defeat a purchase for a valuable consideration without notice; but gross inadequacy of a valuable consideration would be evidence affecting the good faith of the transaction. Marriage is a valuable consideration for a conveyance; but if a conveyance after marriage is made in pursuance of an agreement before marriage, it must be made clearly to appear. The general definition of a valuable consideration embraces not only some valuable

1 Pennington v. Beechey, 2 S. & S. 282; Anon. 2 Ch. Ca. 161; Price v. Price, 1 Vern. 185; Hardman v. Ellames, 5 Sim. 650; 2 M. & K. 732.

2 Alexander v. Pendleton, 8 Cranch, 462; Hunter v. Simrall, 5 Litt. 62; Boone v. Chiles, 10 Pet. 177; Bush v. Bush, 3 Strob. Eq. 131; Blight v. Bank, 6 Mon. 698; Halstead v. Bank of Kentucky, 4 J. J. Marsh. 554; Moore v. Clay, 7 Ala. 142; Pillow v. Shannon, 3 Yerg. 308; Nantz v. McPherson, 7 Munf. 599; Dillard v. Crocker, 1 Spear, Eq. 20; Vattier v. Hinde, 7 Pet. 252; Jackson v. Rowe, 2 S. & S. 472; Jones v. Powles, 3 M. & K. 581.

Upshaw v. Hargrove, 6 Sm. & M. 292; Frost v. Beekman, 1 Johns. Ch. 288; Patten v. Moore, 32 N. H. 382; Boone v. Baines, 23 Miss. 136; Everts v. Agnes, 4 Wis. 343; Swan v. Ligan, 1 McCord, Ch. 232.

More v. Mayhow, 1 Ch. Ca. 34; Wagstaff v. Read, 2 Ch. Ca. 156; Bullock v. Sadlier, Amb. 764; Mildmay v. Mildmay, cited Amb. 767.

Harding v. Hardrett, t. Finch, 9; Lord Keeper v. Wyld, 1 Vern. 139.

thing or property given or transferred to another, but also some loss of property or right, or the forbearing of some legal right or remedy.1

§ 221. In order that one may claim protection as a bona fide purchaser, the money must have been actually paid and the conveyance taken before notice is received of the trust. If the money is secured, but not paid, notice of the trust will convert the purchaser into a trustee,2 and so if the money is paid, but the conveyance is not executed, the weight of authority is that notice of the trust will destroy the protection of the purchaser. It is held that the money must be wholly paid before notice. This rule proceeds upon the ground, that, as the purchaser is taking the transfer of a title that defeats the equitable right of a third person, he shall be held to take such title subject to all the equities that attach to it at the time it passes. If, therefore, he pays no money at the time the title passes, he has no equity to set up against the equity of a third person, and if he has notice before he pays

It is impossible to pursue this subject in all its details and distinctions in a work of this character without exceeding all reasonable limits. The cases will be found most industriously collected in the notes to Basset v. Nosworthy, 2 Lead. Ca. Eq. 103-109, and the distinctions and qualifications are fully discussed.

2 Tourville v. Naish, 3 P. Wms. 387; Story v. Winsor, 2 Atk. 630; More v. Mayhew, 1 Ch. Ca. 34; Jones v. Stanley, 2 Eq. Ca. Ab. 685; High v. Batte, 10 Yerg. 555; Christie v. Bishop, 1 Barb. Ch. 105; Murray v. Ballou, 1 Johns. Ch. 566; Jackson v. Cadwell, 1 Cow. 622; Jewett v. Palmer, 7 Cow. 65, 265; Heatley v. Finster, 2 Johns. Ch. 19; Harris v. Norton, 16 Barb. 264; Patten v. Moore, 32 N. H. 382; McBee v. Loftes, 1 Strob. Eq. 90; Hunter v. Simrall, 5 Litt. 62; Palmer v. Williams, 24 Mich. 333; Blanchard v. Tyler, 12 Mich. 339; Stone v. Welling, 14 Mich. 514; Dixon v. Hill, 5 Mich. 404; Warner v. Whittaker, 6 Mich. 133; Thomas r. Stone, Walk. Ch. 117; Lewis v. Phillips, 17 Ind. 108; Rhodes v. Green, 36 Ind. 10; Dugan v. Vattier, 3 Blackf. 245; Perkinson v. Hanna, 7 Blackf. 400. But see Parker v. Crittenden, 37 Conn. 148; 2 Dart, V. & P. 760.

8 Wigg v. Wigg, 1 Atk. 384; 2 Sugd. V. & P. 274.

Wormley v. Wormley, 8 Wheat. 421; Wood v. Mann, 1 Sumner, 506.