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Act, Agra Bank v. Barry, 1874, L. R. 7 H. L. 136), which case also shows that, notwithstanding the stringent provisions of the Act, if a person registering under it has by himself or his agent notice of a prior unregistered deed, he will not obtain priority over it.

See also under the New South Wales Registry Act, Sydney, etc., v. Lyons, [1894] A. C. 260.

By the Yorkshire Registry Act of 1884, tacking is abolished and priority given to a second mortgagee under a registered deed over a subsequent advance made by a prior registered legal mortgage, and the doctrine of notice is now of little importance in dealings with land in Yorkshire.

NOTICE UNDER TRANSFER OF LAND ACT, 1862, AND LAND TRANSFER ACTS, 1875 AND 1897.

See REGISTRATION OF TITLES. There appear to be no decisions on questions arising as to the effect of notice on titles taken under these Acts. The Act of 1862 does not contain any prohibition against notice of trusts or equities being registered. By sec. 74 it provides "that no unregistered estate, interest, contract, or engagement for the registration of which provision is made by this Act, shall prevail against the title of any subsequent purchaser for valuable consideration duly registered under this Act." The words do not seem so strong as the words above cited from the Middlesex Registry Act. And by sec. 103 it provides that 'nothing contained in this Act shall take away or affect the existing jurisdiction on ground of actual fraud." And by sec. 138 it is enacted that acts or entries obtained by fraud shall be void as between parties and privies.

The Act of 1862 only applies to a few cases, and it is conceived that in any case a registered owner would be affected with notice of a prior unregistered instrument if his claim to be free from it would involve "moral" fraud, as explained by Stirling, J., in Battison v. Hobson, [1896] 2 Ch. p. 613. It is impossible to define what notice of an estate or interest inconsistent with that conveyed would be held by a judge to involve moral fraud.

The Act of 1875 makes a distinction between the original registration of an owner with an indefeasible title (see ss. 7 and 13) and that of a transferee for value (ss. 30 and 36). It seems that the title of the person first registered might under that Act have been affected in cases. "where a transferee for value would not be, as by sec. 13, subs. 3, it is provided that the registration of such first proprietor shall be subject, where such first proprietor is not entitled, for his own benefit, to the land registered as between himself and any persons claiming under him to any unregistered estate, rights, interests, or equities to which such person may be entitled." The transferee for valuable consideration is "to be free from all estates and interests whatsoever, except incumbrances entered on the register, or rights or interests by the Act declared not to be incumbrances."

Sec. 82 provided, "There shall not be entered on the register or be receivable by the registrar any notice of any trust implied, express, or constructive."

Sec. 98 provides, "subject to the provisions in this Act contained with respect to registered dispositions for valuable consideration, any disposition of land or of a charge on land which if unregistered would be

fraudulent and void shall, notwithstanding registration, be fraudulent and void in like manner."

There appears to be no express declaration with respect to notice affecting the title in equity. But in the amending Act of 1897, sched., sec. 83 of the Act of 1875 is repealed, and there is the following provision:-"Neither the registrar nor any person dealing with registered land or a charge shall be affected with notice of a trust express, implied, or constructive, and reference to trusts shall as far as possible be excluded from the register."

This enactment appears not to be directed against notice of prior incumbrances, but merely intended to guard against the register being incumbered with notice of trusts; it may perhaps be held sufficient to preclude a purchaser or mortgagee from being affected with notice of beneficial interests where he is dealing with trustees or executors, provided that to his knowledge the act of the trustee or executor would not necessarily be a breach of trust. But it is conceived that it would not protect a purchaser where he had knowledge that a breach of trust was being committed, nor from notice of some prior equity inconsistent with the estate or interest conveyed to him, as that would appear to come within sec. 98 of the Act of 1875.

It is probable, as suggested in 2 White and Tudor, 1897 ed., p. 219, that constructive notice if applicable would be confined to cases where notice implied participation in such actual fraud as would involve moral blame, as explained by Stirling, J., in Battison v. Hobson, [1896] 2 Ch. 410, or the Yorkshire Act.

But, as the cases stand, it may be open to question whether a judge would follow the doctrine laid down by Lord Hardwicke in Le Neve v. Le Neve, supra, and repeated by Lord Redesdale in Bushell v. Bushell, 1803, 1 Sch. & Lef. 100, 9 R. R. 21, that if a man has notice it is fraudulent in him to take a conveyance to defeat the charge of another. See the judgment of the C. A. in Greaves v. Tofield, 1880, 14 Ch. D. 563.

ACTUAL NOTICE.

In Barnhart v. Greenshields, 1853, 9 Moo. P. C. p. 36; 14 E. R. 204, Lord Kingsdown says:

We now come to the parol evidence of notice. Upon this subject the rule is settled, that a purchaser is not bound to attend to vague rumours, to statements by mere strangers, but that a notice in order to be binding must proceed from some person interested in the property.

The rule seems to be more accurately stated in Lloyd v. Banks, 1888, L. R. 3 Ch. 488, though that was a case of notice to a trustee of a fund, not to a purchaser. There, after speaking of the difficulty in attending to casual conversations, Lord Cairns proceeded :

I do not think it would be consistent with the principles upon which this Court has always proceeded, or with the authorities which have been referred to, if I were to hold that under no circumstances could a trustee, without express notice from the incumbrancer, be fixed with the knowledge of an incumbrance upon the fund on which he is a trustee, so as to give the incumbrancer the same benefit which he would have had if he himself had given notice to the trustee. It must depend upon the facts of the case, but I am quite prepared to say I think the Court would expect to find that those who alleged that the trustee had knowledge of the incumbrance had made it out

not by any evidence of casual conversation, much less by any proof of what would only be constructive notice, but by proof that the mind of the trustee has in some way been brought to an intelligent apprehension of the nature of the incumbrance which has come upon the property, so that a reasonable man or an ordinary man of business would act upon the information, and would regulate his conduct by it in the execution of the trust.

If it can be shown that in any way the trustee has got knowledge of that kind, knowledge which would operate upon the mind of any rational man or man of business, and make him act with reference to the knowledge he has so acquired, I think the end it attained.

Though these observations were applied to the case of a trustee, it seems probable they would hold also in the case of a purchaser. [Lloyd v. Banks, ubi supra, was applied in In re Wyatt, [1892] 1 Ch. 188; on appeal sub nom. Ward v. Duncombe, [1893] A. C. 369.]

CONSTRUCTIVE NOTICE.

Constructive notice is commonly used in two senses (1) as meaning notice through notice to an agent, whether actual or implied, without actual notice to the principal; (2) as meaning notice implied, by a presumption of knowledge without evidence of actual notice or knowledge. The use of the word "constructive" in the first sense of notice through notice to the agent may be through actual notice to the agent or through "implied" notice.

Strictly speaking, constructive should be used in the second sense only as notice implied by presumption without actual knowledge by or actual notice to either agent or principal, and it is used in that sense in this article.

Notice, through knowledge actual or presumed of an agent, is called imputed notice, as suggested by Lord Chelmsford in Espin v. Pemberton, 1859, 3 De G. & J., see p. 556.

Definition of Constructive Notice.-Before the Conveyancing Act of 1882, judges confessed to having great difficulty in defining constructive notice. Lord St. Leonards, in his work on Vendors and Purchasers, 1862, 14th ed., p. 781, says, "Everyone who has attempted to define constructive notice has declared his inability to satisfy himself" (see also the cases discussed by Lord St. Leonards, ibid., pp. 780-784, and Jones v. Smith, supra; Ware v. Egmont, 1853, 4 De G., M. & G. 473; 43 E. R. 586; Montefiore v. Brown, 1858, 7 H. L. C. pp. 262 and 269; 11 E. R. 96).

The attempted definition inserted in the Bill introduced by Lord St. Leonards in the House of Lords in 1862, is given (Sugden, Vendors and Purchasers, 14th ed., p. 784), but Lord St. Leonards says it was so unsatisfactory that it was struck out with his consent.

The difficulty of giving a definition appears in a great measure to be removed by the Conveyancing Act, 1882, s. 3 (infra), which in effect enacts that a purchaser shall not be affected with notice unless he or his solicitor or agent had actual knowledge, or, what must for the future be taken as the limitation of constructive knowledge, unless the instrument, fact, or thing would have come to his knowledge if such inquiries and inspections had been made, as ought reasonably to have been made, by him or his solicitor or agent.

Another question raised on the cases is whether, in order to affect a purchaser with constructive notice, there must be some act

or omission on his part or that of his solicitor or agent amounting to fraud.

It will be seen from some of the cases cited that constructive notice has generally been put on fraud or negligence so gross as to amount to evidence of fraud, ie. that the purchaser purposely avoided inquiry in order to avoid discovery (see the leading case of Le Neve v. Le Neve, supra, where Lord Hardwicke says fraud or malá fides is the line of ground on which the Court is governed in cases of notice; see also the often-cited case of Jones v. Smith, 1841, 1 Hare, 43; 66 E. R. 943; 58 R. R. 22, infra, and the judgment of the Court of Appeal in the case of Northern Counties, etc. v. Whipp, 1884, 26 Ch. D. 482; Montefiore v. Brown, 1858, 7 H. L. C. 241, p. 269; 11 E. R. 96). Lord Chelmsford says constructive notice cannot be imputed to a party unless his negligence amounts to gross and culpable negligence. In the most recent case of Bailey v. Barnes, [1894] 1 Ch. 35, Lindley, L.J., in explaining the expression "culpable negligence," seems to imply that to raise constructive notice the negligence must amount to evidence of intention to avoid notice. He says:

In the celebrated judgment of Wigram, L.C., in Jones v. Smith (1 Hare, 43; 66 E. R. 943; 58 R. R. 22, supra), the cases of constructive notice are reduced to two classes: the first comprises cases in which a purchaser has actual notice of some defect, inquiry into which would disclose others; and the second comprises cases in which a purchaser has purposely abstained from making inquiries for fear he should discover something wrong.

But it seems that this will not meet all the cases where it has been implied from mere negligence. See the cases noticed infra, where it has been implied from not investigating title when investigation of title has been prevented by contract, in some common form limiting the length of title to be shown, or a case of purchase of leasehold, such as Patman v. Harland, 1888, 17 Ch. D. 353, where it was implied from not examining the lessor's title when a statute (the Vendors and Purchasers Act of 1874) prevented the purchaser from doing so.

Before giving specific instances in which the judges have held purchasers affected with constructive notice, it is convenient to give the enactment in the Conveyancing Act of 1882.

THE CONVEYANCING ACT, 1882, ENACTS AS TO NOTICE

Sec. 3 (1). A purchaser shall not be prejudicially affected by notice of any instrument, fact, or thing, unless

(1) It is within his own knowledge, or would have come to his own knowledge if such inquiries and inspections had been made as ought reasonably to have been made by him; or

(2) In the same transaction with respect to which a question of notice to the purchaser arises, it has come to the knowledge of his counsel, or of his solicitor or other agent as such, or would have come to the knowledge of his solicitor or other agent as such, if such inquiries and inspections had been made as ought reasonably to have been made by the solicitor or other agent.

Sec. 2. This section shall not exempt a purchaser from any liability under, or any obligation to perform or observe, any covenant, condition, provision, or restriction contained in any instrument under which his title is derived, mediately or immediately, and such liability or obligation may be enforced

in the same manner and to the same extent as if this section had not been enacted.

(3) A purchaser shall not, by reason of anything in this section, be effected by notice in any case where he would not have been so affected if the section had not been enacted.

(4) This section applies to purchases made either before or after the commencement of this Act; save that where an action is pending at the commencement of this Act, the rights of the parties shall not be affected by this action.

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In Bailey v. Barnes [1894] 1 Ch. 31, Lindley, L.J., said that this section "really does no more than state the law as it was before, but its negative form shows that a restriction rather than an extension of the doctrine of notice was intended " .; and adds: "Light is thrown on the meaning of 'ought reasonably' by the Conveyancing Act, 1881, s. 1, subs. 2, which relieves purchasers from mortgagees, purporting to sell under powers of sale, from the necessity of inquiring into the propriety of irregularity of the exercise of the power."

In In re Cousins, 31 Ch. D. 671-676, 1886, Chitty, J., said that the section was intended to remedy the evil consequences of the doctrine illustrated by the case of Hargreaves v. Rothwell, 1836, 1 Keen, 154; 44 R. R. 48, i.e. that notice to the solicitor in one transaction might be imputed from notice to him in a former transaction; and to the extent to which this doctrine applied, the section alters the former law so far as regards "purchasers."

The Act is in a negative form: a purchaser shall not be affected, etc., except in the cases excepted.

The first of these is, subs. (1), "unless the fact, instrument, or thing is within his own knowledge," i.e. unless he has actual notice (see as to this the case cited ante, p. 39, of Barnhart v. Greenshields); and it is to be observed that the exception as to his own knowledge does not, as in the case of notice through a solicitor, confine it to cases of knowledge in the transaction in which notice is imputed, and it may be a question whether recollection of previous knowledge be imputed. (See Hamilton v. Royse, 1804, 2 Sch. & Lef. 32, per Lord Redesdale.) [Under an open contract where there was no reference to restrictive covenants, the purchaser is not put on inquiry because the vendor's solicitor insists on inserting them in the draft conveyance (Rowell v. Satchell, [1903] 2 Ch. 212). A deposit of debentures with a bank as security was held not to affect them with notice, in dealing subsequently with the company, of the contents of the debentures (Re Valletort Sanitary Steam Laundry, 1903, 2 Ch. 654). A purchaser may reasonably refrain from inquiring generally whether the property is free from incumbrances (Taylor v. London and County Bank, [1901] 2 Ch. 231, p. 258).

Another exception is constituted by the cases mentioned in subs. (2). The knowledge of the solicitor to affect the client must have come to him as solicitor for the client (Taylor v. London and County Bank, ubi supra). A mortgage deed contained a receipt for the mortgage money to the mortgagee. The solicitor to the mortgagee acts for a transferee from him, but as an independent solicitor would not have come across the original mortgagor who could have told him that the whole amount was not advanced, the transferee is not affected with notice of the fact (Bateman v. Hunt, [1904] 2 K. B. 530). But where a conveyance contained words "subject to all payments, etc., charged on the property," the client was held affected although his solicitor

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