supposing the fact to be otherwise, they deny that such fact was within their knowledge. They admit that no such fact appeared on the abstract, and they also admit the part in dispute to be material to the enjoyment of the rest of the premises sold. The points, then, on which the parties are at issue, are only these two: Was this at any time a part of the common? Was it known by the defendant so to have been?"

His Honour, upon the evidence, which he examined at great length, being satisfied that both these questions ought to be answered in the affirmative, proceeds thus:-"The only other objection which the defendants make to the relief sought by the bill is, that the plaintiff is premature in his application, inasmuch as he has not yet been evicted, and may, perhaps, never be evicted. But I apprehend that a Court of equity has quite ground enough to act upon, and that it ought now to [ *570] relieve the plaintiff from the consequences of the fraud practised upon him. It may be true, that the commoners are barred by having acquiesced for more than twenty years in the inclosure; but the lord will not be conclusively barred till sixty years shall have elapsed. I have already observed, that the defendants do not pretend that there is any circumstance from which a title in them can be inferred, supposing the fact established, that this made part of the common. Though the lord may never assert his right, is the plaintiff to be compelled to remain for twenty-five years longer in a state of uncertainty, whether, on any day during that period, he may not have the convenience of his habitation entirely destroyed? I apprehend, that the Court is bound to relieve him from that state of hazard into which the misrepresentation of the defendants has brought him. There must, therefore, be a decree for setting aside the sale, and repaying the purchase-money with costs. The defendants must, likewise, pay to the plaintiff all the expenses he has been put to relative to the sale; and he must have an allowance for any money he laid out in repairs during the time he was in possession."

From this judgment there was an appeal to Lord Eldon.(r) "The case," said his Lordship, "resolves itself into this question, whether the representation made to the plaintiff was not, in the sense in which we use the term, fraudulent? I am not apprized of any such decision; but I agree with the Master of the Rolls, that if one party makes [ *571 ] a representation which he knows to be false, but the falsehood of which the other party had no means of knowing, this Court will rescind the contract. In principle, therefore, the decree is right; though it seems to have gone too far on the subject of repairs and improvements. Its terms must be made conformable to the terms of the bill; striking out the word 'improvements,' and leaving the word repairs,' I give the plaintiff all that he asked by his bill, and I cannot give him less."

It has been observed, that a purchaser is entitled to the discharge of all incumbrances of which he has notice. It becomes, therefore, important to know what notice is; and it cannot be more clearly explained than in the language of the Second Report of the Real Property Commissioners:"Notice, according to the rules of equity, is not confined to actual

(r) 2 Swanst. 287.

knowledge or information in the ordinary sense of those words. The doctrine of notice has been expanded into a system of great subtlety and refinement.

"Notice is either actual or constructive; but for most purposes there is no difference between them in their consequences.

"It is laid down in the books, that actual notice must be given by, or on behalf of, a person having a claim on the property, and in the course of the treaty for the purchase; and that it must not be vague report or assertion of such claim, not even a general claim, without reference to particulars. Yet a book of high authority states, [ *572 ] that no person could be advised to accept a title, concerning which there were any such reports or assertions, without having them elucidated; because, what one judge might think a flying vague report, another might deem a good notice.'(s)

"Constructive notice is scarcely susceptible of definition; and it seems admitted, that no certain rules, as to what shall amount to constructive notice, can be laid down. We shall state some of the many instances of it which are to be found in the books.

"Notice to the counsel, agent, or attorney of the purchaser, or to the sub-agent, as the London agent of the country attorney, employed in any part of the transaction, is held to be notice to the purchaser, although it may be clear that the fact was not communicated to him; although its importance may not have been understood by the agent; although, if employed (as frequently happens) by both parties, he may have received, as agent for the one, what it became his duty to make known to the other; and although the purchase may have been made without the purchaser's knowledge, and he may afterwards have adopted it on the agent's representations. This species of notice is frequently treated as actual notice.

"A suit in equity, unless collusive, is, during its continuance, constructive notice to all persons of the claim raised by it, although the purchaser of the estate, and his agents, may never have heard of such suit. A suit determined ceases to operate as [ *573 ] notice; but it appears to have been considered, that an appeal from a decree would recall the suit into existence, so as to affect a purchaser in the interval with notice.

"It is held, generally, that whatever is sufficient to put a purchaser upon inquiry, is good constructive notice; in other words, that when a man has sufficient information to lead him to a fact, he shall be deemed to know such fact. When a title is made out through a deed, the purchaser has constructive notice of every fact, to the knowledge of which that deed leads, by recital, by description of the parties, or otherwise, immediately or remotely. So a purchaser, who has notice of a deed, has constructive notice of all its contents, though his advisers may not have thought it necessary to examine or require the inspection of the deed. Where an estate is in the occupation of tenants, the purchaser is deemed to have notice, not only of their actual leases, but of any agreements relating to the property which the tenants may have made with their landlords."(t)

(8) Sir Ed. Sugd. Vend. and Purch. p. 741.

(t) Second Report of the Real Property Commissioners, p. 11.

MAY, 1838-Z

"

Besides the incumbrances which appear on the abstract, there are others arising from judgments, recognizances, Crown debts, the pendency of suits, acts of bankruptcy and insolvency, which, as they [ *574 ] *create liens on, or otherwise affect, real estate, it becomes necessary for a purchaser to be assured that there are none such existing at the time of completing his contract, or, if there be, to procure the discharge or satisfaction of them; and, therefore, it is incumbent on those who take upon themselves the responsibility of approving the title on behalf of the purchaser, to ascertain by proper searches and inquiries, whether such incumbrances exist.

1. A suit depending in the courts is binding on all persons, and it is therefore necessary to ascertain whether the estate be the subject of any suit; and if so, then the proceedings in that suit become a part of the vendor's title, and the purchaser is entitled to have them abstracted in chief, for the purpose of ascertaining their effect upon it.

It is to be observed, however, that not every lis pendens amounts to notice. For the learning on this subject, the recent case of Kinsman v. Kinsman,(u) and the authorities there cited, may be consulted.

2. The circumstance of any part of the estate being in the occupation of a tenant, is considered to be full notice of the interest of the tenant, and of the rent and other terms of the lease. It is, therefore, necessary to inquire of every occupier the nature and extent of his interest.(v)

*3. When persons are indebted to the Crown, the estates,

[ *575 ] to which they may be entitled during the existence of any part of the debt, remain liable to the remedies of the Crown, notwithstanding the sale and conveyance of them; and therefore it is necessary

(u) 1 Russ. and M. 616.

(v) Although a party purchasing with notice of a tenancy, takes subject to all the rights of the tenant, yet, where the vendor undertakes to make an express representation with respect to the tenant's interest, and that representation turns out to be unfounded, he must submit to the consequences of the misrepresentation, notwithstanding the purchaser, by making inquiry of the tenants, might have ascertained the nature of his rights, on the plain principle, that a purchaser buying with notice of a tenancy, has only constructive notice of his rights, which is, of course, superseded by an express representation from the landlord as to that matter. Thus, in Besant v. Richards, (Taml. Rep. 509,) which was a suit to enforce performance of a contract for the purchase of an inn, at the time of the contract, in the possession of a tenant. The contract merely stipulated for the amount of the purchase-money, and that the title should be made good, and the sale completed at Michaelmas then next. Previously to the treaty, however, the vendor said the agreement under which the tenant then held the inn was good for nothing, and that he had served him with a notice to quit at Michaelmas, and would give the plaintiff, who was the purchaser, possession at Michaelmas. The agreement was, in point of fact, for a ten years' term. Sir J. Leach, M. R., held-That the plaintiff ought not to be bound by the contract, purchasing, as he did, on the faith of that representation; and that he was entitled to be released from the agreement, or to have it performed with compensation.

Neither, where the possession is vacant, is a purchaser bound to inquire of the late occupier what was the nature of his title. On this principle, in a recent case, (Miles v. Langley, 1 Russ. and M. 39,) under an agreement of exchange between A, who held lands under a college lease, and B, the owner of an adjoining estate: B occupied part of the college lands, and A had occupied, along with the residue of the leasehold, part of B's estate. A having become bankrupt, the college leasehold was sold, and was described in the particulars of sale as "late the residence of A,” it was held, that the purchaser was not to be considered as having implied notice of the agreement of exchange, and that he had a right to recover by ejectment that portion of the leasehold which was in B's occupation. That a purchaser with notice of the vendor's solicitor being in possession of the title deeds is not within the principle here stated; and, consequently, not bound to inquire as to the nature of the solicitor's interest in them. See Bazon v. Williams, 3 You. and Jerv, 150.

[ *576 ]

The

*in all cases to inquire, whether the present or any of the late owners have had any accounts with the Crown, or have given any security for any receiver or other public accountant? fact can never be ascertained with certainty, because there is no place in which the existence or the amount of debts due to the Crown can be discovered; but it is usual, and is considered necessary, to ask the solicitor and connections of the parties, if they are aware of any such debts, and to make inquiries in any of the public offices with which the circumstances of the owner may render it probable that he may have had any dealings.

4. Judgments which are docketed in any of the Courts of law, become liens on the estates of the person against whom they are entered up, and on those which he may afterwards acquire; it is therefore necessary to search for judgments in all the Courts against every person who may have been the owner of any part of the estate. The dockets or books contain the names, without any other description; and when a judgment against the name of an owner is discovered, the person bound to show a good title must procure it to be satisfied, or proof to be given that it applied to a different person of the same name. The latter fact is usually shown by a certificate of the solicitor who obtained the judgment, stating the residence and description of the person against whom it was entered up. When an estate has belonged to several persons, the expenses of searching for judgments, and of showing to whom those which may [ *577 ] be found relate, become enormous; and a serious difficulty arises where the name of any of the owners is one of common occurrence, Upwards of five hundred judgments will be found against any such name as Smith, White, Brown, Taylor, &c. In those cases it cannot be expected that the owner should procure certificates from all the solicitors who obtained the judgments, and yet there is no other means by which it can be proved that the title is not affected by them. A willing purchaser is usually satisfied with an affidavit or certificate from the solicitor of the owner, that he is confident that none of the judgments relate to him; but it has not been decided, whether the objection does not render a title unmarketable.(w)

5. Annuities, with a few exceptions, are required by acts of Parliament to be inrolled, and it is the duty of the solicitor to search for them.(w)

6. If the estate be in Middlesex, Yorkshire, or the Bedford Level, the local register must be examined, and there is no occasion for any other search for judgments and annuities; but, in consequence of the inconvenient regulations under which the registers are established, and the unnecessary inquiries which they occasion, searches there are attended with as much trouble and expense as those for judgments and annuities in other cases.(w)

A heavy responsibility is imposed upon solicitors in the examination of the abstract, and in searching for defects and incumbrances. If these duties are not carefully performed, they [ *578 ] are answerable for any loss which their client may sustain by their negligence; and the danger of overlooking errors in the technical proceedings connected with different complicated assurances, or of a name in the

(w) 1st Rep. of the Real Prop. Com. App. p. 517.

various lists at the different offices, and the other difficulties of making accurate searches must frequently render them liable to heavy losses.(x)

Searches for judgments are usually confined to the last purchaser, and to the persons deriving title under him, on the assumption that, on each succeeding purchase, the purchasers did their duty, and made the proper searches; searches, however, which are manifestly incomplete, as judgments bind after-purchased lands.

The extent to which searches ought to be made has, however, been greatly abridged, and the security of purchasers from judgment creditors greatly increased, by the recent decision in Doe v. Jones, (y) which established the principle, that a person deriving title by appointment from the debtor, and therefore being in immediately under the deed creating the power, is entitled to hold the lands, unaffected by judgments against the donee of the power. The facts were these: In Michaelmas term, 1822, judgment was entered up against A, at the suit of the defendant, who, on the 13th December, 1827, sued out a writ of elegit thereon, and an inquisition *being duly taken on the said writ, finding the [ *579] seisin of A. the sheriff delivered the lands in question to the defendant. The seisin and title of A, commenced under indentures of lease and release, of the 30th Nov. 1826, by which the lands had been conveyed to A in fee, with the usual limitation to uses to bar dower. By an indenture of the 29th March, 1827, A, in execution of the power given him by the limitations to bar dower, appointed, and he also demised, these lands to the lessor of the plaintiff for a term of 500 years, by way of mortgage. In an action of ejectment by the mortgagee, the question was, whether he, claiming under the appointment, or the defendant, claiming by virtue of his judgment, had the better title. In other words, whether the debtor, by making the title of the mortgagee depend on the power of appointment, and not on his own estate, had not defeated the title of the judgment creditor? And the Court of King's Bench held that the title of the judgment creditor was defeated. Lord Tenterden, delivering the judgment of the Court, said "It has been established ever since the time of Lord Coke, that where a power is executed, the party taking under it takes under him who creates the power, and not under him who executes it. The only exceptions are, where the person executing the power has granted a lease or any other interest, which he may do by virtue of his estate, for, then, he is not allowed to defeat his own act. But suffering the judgment is not within [ *580 ] the exception as an act done by the party, for it is considered as a proceeding *in invitum, and therefore falls within the rule:" and it was accordingly held that the plaintiff was entitled to

recover.

The practical conclusion is that whenever a vendor conveys in exercise of a power of appointment, it will be unnecessary to seek for judgments, as against him.

Although a judgment does not bind leasehold estate till a writ of execution has been taken out and delivered to the sheriff, yet, as the sheriff will not allow his office to be searched, lest the object of the execution should be thereby defeated, it is necessary to search for judgments, and if any be found, a purchaser cannot safely complete without their being

(x) 1st Rep. of the Real Prop. Com. App. p. 517. (y) 10 Barn. and Cress. 459.