Page images
PDF
EPUB

the money, he pays in his own wrong. And so, if he has paid his money, but has not yet taken the title when he receives notice, he takes the title subject to all the equities that attach to it when the conveyance is actually made to him, as he then has a right to refuse the conveyance and to demand back his money. In Pennsylvania, however, it is established that part-payment of the purchase-money before notice will give the purchaser an equity pro tanto. So, if a purchaser without notice make improvements on the land, not having paid the purchase-money in full, he will have an equitable lien on the land for the amount of his expenditures, although he has no defence to a bill to enforce the rights of the cestui que trust. This is in analogy to the statutes that give a defendant in a real action a claim for improvements upon an estate, which he has made in ignorance of the title against him.

§ 222. The notice of the trust may be either to the purchaser himself, or to his agent, counsel, or attorney. The general rule is that notice to an agent is notice to his principal. The notice, if to an agent, must be to an agent for the

1 Warner v. Winslow, 1 Sandf. Ch. 430; Vattier v. Hinde, 7 Pet. 252; Bush v. Bush, 3 Strob. Eq. 131; Kyle v. Tait, 6 Gratt. 44; Doswell v. Buchanan, 3 Leigh, 362; Dillard v. Crocker. 1 Spear, Eq. 20; Duncan v. Johnson, 2 Eng. 190; Cook v. Bronaugh, 8 Eng. 190; Frost v. Beekman, 1 Johns. Ch. 288; Cole v. Scott, 2 Wash. 141; Abell v. Howe, 43 Vt. 403.

2 Youst v. Martin, 3 Serg. & R. 423; Lewis v. Bradford, 10 Watts, 67; Bellas v. McCarthy, 10 Watts, 13; Juvenal v. Jackson, 2 Harris, 519; Uhrich v Beck, 1 Harris, 631; 4 Harris, 499; Paul v. Fulton, 25 Mo. 156.

Boggs v. Varner, 6 Watts & S. 469; Farmers' Loan Co. v. Maltby, 8 Paige, 563; Frost v. Beekman, 1 Johns. Ch. 288; Doswell v. Buchanan, 3 Leigh, 361; Flagg v. Mann, 2 Sumn. 486; Everts v. Agnes, 4 Wis. 343.

Hovey v. Blanchard, 13 N. H. 145; Aster v. Wells, 4 Wheat. 466; Bank of U. S. v. Davis, 2 Hill, 451; Griffith v. Griffith, 9 Paige, 315; Jackson v. Winslow, 9 Cow. 13, Jackson v. Sharp, 9 Johns. 163; Jackson

[blocks in formation]

purpose of the purchase, and the notice must be to him while engaged in the transaction,1 for the reason that notice to agents generally, without reference to the particular business in hand, is not binding upon the principal. Notice to a husband is not notice to a wife, unless he is her agent, and is engaged upon the business when he receives the notice. Upon the same principle, knowledge by an executor before the death of his testator is not notice to him after his appointment as executor. It has been held in some cases, that the notice to the principal, to convert him into a trustee, must be given to him during the progress of the transaction, as he might have known the facts long before and forgotten them.5 If the first purchaser from the trustee take the property, bona fide for value and without notice, all purchasers from him will take the property discharged of the equitable claims, although they have notice of them at the time they purchase v. Leek, 19 Wend. 339; Westerwelt v. Hoff, 2 Sandf. 98; Barnes v. McChristie, 3 Pa. 67; Blair v. Owles, 1 Munf. 38; Brotherton v. Hutt, 2 Vern. 574; Newstead v. Searles, 1 Atk. 265; Le Neve v. Le Neve, 3 Atk. 646; 1 Ves. 64; 2 Lead. Ca. Eq. 165, notes; Tunstall v. Trappes, 3 Sim. 301; Maddox v. Maddox, 1 Ves. 61; Ashley v. Bailley, 2 Ves. 368; Bracken v. Miller, 4 Watts & S. 108; Espin v. Pemberton, 3 De G. & J. 547.

1 Howard Ins. Co. v. Halsey, 4 Seld. 271; Bracken v. Miller, 4 Watts & S. 102; Bank of U. S. v. Davis, 2 Hill, 451; Hood v. Fahnestock, 8 Watts, 489; Winchester v. Baltimore R. R. Co. 4 Md. 231; Preston v. Tubbin, 1 Vern. 286; Mountford v. Scott, 3 Madd. 34; Warwick v. Warwick, 3 Atk. 291; Ashley v. Bailley, 2 Ves. 368; Worsley v. Scarborough, 3 Atk. 392; Tylee v. Webb, 6 Beav. 552; 14 Beav. 14; Finch v. Shaw, 19 Beav. 500; 5 H. L. Ca. 905; Fuller v. Bennett, 2 Hare, 394. But see Abell v. Howe, 43 Vt. 403.

2 Ibid.; U. S. Insurance Co. v. Schriver, 3 Md. Ch. 381; Fulton Bank v. New York Coal Co. 4 Paige, 127; Bank v. Payne, 25 Conn. 444; North River Bank v. Aymar, 3 Hill, 362; Henry v. Morgan, 2 Benn. 497; Ross v. Horton, 2 Cushman, 591.

8 Snyder v. Sponable, 1 Hill, 567; 7 Hill, 427.

4 Gold v. Death, Cro. Jac. 381; Hob. 92.

5 Hamilton v. Royse, 2 Sch. & Lef. 377; 2 Sugd. V. & P. 277; Henry v. Morgan, 3 Binn. 497; Boggs v. Varner, 6 Watts & S. 469; Bracken v. Miller, 4 Watts & S. 111.

of the first purchaser, and such notice to them cannot convert them into trustees.1 But if the property comes back into the hands of the original trustee, or into the hands of any one affected with the guilt of the original sale, he will be a trustee for the defrauded party, although the property may have passed through several innocent hands.2

§ 223. Notice to the purchaser may be either actual or constructive. Actual notice is a knowledge of the facts of the trust brought home to the purchaser, or a knowledge of such facts as should lead him to a knowledge of the actual facts of the case. Constructive notice is a legal presumption of notice unless controlled, and in most cases it is not susceptible of rebuttal, even by evidence that in fact there was no actual knowledge. Thus, by statutes of the several States the recording of a deed is made notice to all subsequent purchasers, though it frequently happens that purchasers have no actual knowledge from the record; but that does not rebut the fact of notice, for the reason that it is their duty to examine the records; they are therefore conclusively affected with notice of all of the record which is legally made, and which it was their duty to examine.5 Lis pendens is constructive notice; that is, a suit pending in the public courts, concerning the title of the property purchased, is constructive notice to the

1 Harrison v. Forth, Pr. Ch. 51; Sweet v. Southcote, 2 Bro. Ch. 66; Brandlyn v. Ord, 1 Atk. 571; Lowther v. Charlton, 2 Atk. 242; Lacy v. Wilson, 4 Munf. 313; Fletcher v. Peck, 6 Cranch, 87; Boone v. Chiles, 10 Pet. 187; Truluck v. Peoples, 3 Kelly, 446; Griffith v. Griffith, 9 Paige, 315; Boynton v. Reese, 8 Pick. 329; Mott v. Clarke, 9 Barr, 399; Trull v. Bigelow, 16 Mass. 406; Church v. Ruland, 64 Pa. St. 441; Parker v. Crittenden, 37 Conn. 145; Terrett v. Crombie, 6 Lansing, 82.

2 Bovey v. Smith, 1 Vern. 149; Schutt v. Large, 6 Barb. 373; Lawrence v. Stratton, 6 Cush. 163; Church v. Ruland, 64 Pa. St. 441.

3 Mayor v. Williams, 6 Md. 235.

4 Rogers v. Jones, 8 N. H. 264; Plumb v. Fluitt, 2 Anst. 432; Griffith v. Griffith, 1 Hoff. 153; Farnsworth v. Child, 4 Mass. 637.

5 Maul v. Reder, 59 Pa. St. 167.

purchaser. Actual possession by the cestui que trust, or some person other than the vendor, is constructive notice to the purchaser that there is some claim, title, or possession of the property adverse to his vendor; and this fact should put him upon his inquiry, for if he had inquired he would have discovered the exact title and the equitable claims upon it; he therefore has constructive notice. There are many other facts and circumstances from which courts will presume that a purchaser had notice of the equities attached to an estate.2 If in any way a person purchases, with what the law construes to be full notice that another has a legal or equitable title to the property, or that he has been deprived of his interest by accident, mistake, or fraud, he will be held as a trustee.3

§ 224. The same general principles affect the sales of property by executors or administrators. Executors can deal with real estate only as they are empowered to do so by the will of testators. Purchasers must therefore look to the will for the power of the executor. If they purchase in good faith from an executor with power to sell, they will take a good title; but if they make a fraudulent or collusive purchase from an executor with full power to sell, they still hold the estate upon the same trusts to which it was subject in the hands of the executor. If there are no powers to sell real estate given to executors in the will, they have no authority to deal with it, unless it is wanted to pay debts or legacies, in which case both executors and administrators must obtain an order or

1 Drew v. Norbury, 9 Ir. Eq. 176. Upon the filing of a bill in equity, and before the service of the subpoena, a suit is lis pendens. Ibid. See Leitch v. Wells, 48 N. Y. 591.

2 It is impossible to state all the distinctions that have been established upon this fruitful source of litigation. The principles are most ably stated in the notes to Le Neve v. Le Neve, 2 Lead. Ca. Eq. 23; Calhoun v. Burnett, 40 Miss. 599; Pilcher v. Rawlins, L. R. 11 Eq. 53; Carter v. Carter, 3 K. & J. 687; Farris v. Dunn, 7 Bush, 276.

Forbes v. Hall, 34 Ill. 159.

license from the Court of Probate to sell. In such case the purchaser must see that the order of the court was regularly obtained, and that it is properly complied with. Any fraud or collusion on the part of the executor or administrator, in procuring the decree of the court or in the conduct of the sale, would convert the purchaser into a trustee for heirs-atlaw or other persons interested. So, if an executor or administrator purchases indirectly of himself through a third person, and takes a deed to himself through such third person, the sale will be void, or the estate will be held in trust by such administrator or executor for the heirs-at-law or other persons interested.

§ 225. An executor or administrator generally has full power over the personal estate under his charge. Therefore he may sell the same and give a good title to a purchaser.2 This is the rule at common law, and it prevails in all States where it is not changed by statute. In some States there are statutes that direct executors or administrators to sell the personal estate of the deceased at public auction, or in such manner as the court having jurisdiction over the administration shall order. In such States, purchasers must see to it that executors and administrators, in making sales, pursue the course marked out for them by the statutes or by the orders of the court, or they will take no title.3 In all sales by 1 Brush v. Ware, 15 Pet. 93; Brock v. Phillips, 2 Wash. 68.

2 Field v. Schieffelin, 7 Johns. Ch. 155; Rayner v. Pearsall, 3 Johns. Ch. 578; Hertell v. Bogert, 9 Paige, 57; Yerger v. Jones, 16 How. 37; Miles v. Durnford, 2 Sim. (N. s.) 234; Tyrrell v. Morris, 1 Dev. & Batt. 559; Hunter v. Lawrence, 11 Gratt. 117; Bond v. Ziegler, 1 Kelly, 324; Crane v. Drake, 2 Vern. 616; Ewer v. Corbett, 2 P. Wms. 148; Newland v. Champion, 1 Ves. 105; Jacomb v. Harwood, 2 Ves. 268; Elmlie v. McAulay, 3 Bro. Ch. 626; Utterson v. Maire, 4 Bro. Ch. 270; 2 Ves. Jr. 95; Scott v. Tyler, 2 Dick. 725; Bonney v. Ridgard, 1 Cox, 145; Dickson v. Lockyer, 4 Ves. 42; Doran v. Simpson, ib. 665; Hill v. Simpson, 7 Ves. 152.

8 Fambro v. Gantt, 12 Ala. 305; Bond v. Barksdale, 4 Des. 526; Bond v. Ziegler, 1 Kelly, 324; Baines v. McGee, 1 Sm. & M. 208.

« PreviousContinue »