edge of the trustee. But there was nothing in these facts which, in reason, should have excited her suspicions as to the good faith of these parties with whom she was dealing, and have suggested some inquiry into their relations and dealings. It was not unnatural that Melhado, being the lessee of the premises, should have attended and have bid them in upon the auction sale, and, if the purchase was so advantageous in price as to enable him to make a quick profit upon a resale, that, upon its face, simply exhibited keenness in business and would hardly have justified Mrs. Blood in suspecting the transaction and the good faith of the actors in it. That he was willing to cancel the lease upon the premises was a natural act on his part, in order to gain the profit upon a resale. 295 She was entitled to take the matter as it then appeared to her, in the absence of any definite information upon which she could act. She was not called upon to exercise that same cool and reflective judgment which, perhaps, when turning over all the facts in her mind deliberately, might have given rise to some doubts as to their significance and their bearing upon those interested in the result of the trustee's sale. It did not appear then, nor does the evidence show, that the profit which Melhado made upon his resale to her was any gain to Hernz personally; and if the evidence does not reveal that fact, how can we assume that investigation would have been useful? The question is, not whether Mrs. Blood could have discovered the existence of any fraud by an inquiry; but it is whether, acting as an ordinarily prudent person would have done, she was called upon, under the circumstances, to make inquiry. Were the circumstances such as to necessitate the making of some inquiry, at the peril of being charged with the knowledge of some then unperceived fact? However strong the circumstances may have seemed to militate against the good faith of Hernz and Melhado in the transaction, I do not think they would have warranted Mrs. Blood in then declaring that some collusion existed to defraud the beneficiaries of the trust estate.

But it is argued, on behalf of the appellant, that Mrs. Blood was chargeable with knowledge gained by her attorneys, Wandell and Lobenthal. Wandell's agency for Mrs. Blood did not extend bevond the examination of the title which she was to acquire, and while notice of any facts coming to him in relation to the title, and affecting it with liens or equities, would have been constructive notice to her, it does not appear that there were any such. Hernz sold under the power of sale in the will, and there is no complaint that it was insufficient for that purpose, or that it was inadequately executed. Both he and Lobenthal were aware of

the advantageous purchase made by Melhado of the trust property; but, in view of the authorized and fairly conducted public sale, what was there to suggest collusion with respect to the resale? So far as the evidence 296 shows, an inquiry could not have resulted in the discovery of anything upon which to rest an objection to the title. They might have regarded the trustee as having acted improvidently; but that is not enough. Wandell could hardly be assumed to have had any doubt with respect to the validity of Mellado's title, when he was passing it upon the large loan made by Mr. Moller, his client. He was a lawyer of standing and of respectability, recommended to Mrs. Blood as being competent upon such questions, and it does not appear in the evidence that he gained any knowledge of facts other than what the records would give to him, or than what came under his observation upon the closing of the title. It does not appear that he knew any more than she did about the relations of Hernz and Melhado, and, moreover, his duty toward her ended with his report, at the time of the closing of the title, that he approved of it. So far as Mr. Lobenthal is concerned, I find nothing in the evidence which charges him with any knowledge of an intent on the part of Hernz to defraud the estate, or of any collusion between Melhado and Hernz, or of any other facts than were apparent upon the face of the matter. He did not know Hernz. He had only seen him once or twice, and his testimony does not tend to show any knowledge in him of any facts which, being chargeable to his client, imperiled her title for failure of further inquiry. A careful consideration of the record fails to find any support for the contention of the appellant that Mrs. Blood was not a bona fide purchaser.

The conclusion reached renders it unnecessary to consider the questions relating to the defendant Mrs. Koss; to whom, as her daughter, and for love and affection, Mrs. Blood subsequently conveyed the premises.

The order of the general term should be affirmed, and, under the stipulation of the appellant, final judgment should be ordered in favor of the respondents, with costs.

All concur, except Bartlett, Martin, and Vann, JJ., dissenting. Order affirmed and judgment accordingly.

NOTICE WHAT IS SUFFICIENT TO PURCHASER OF REAL PROPERTY.-A purchaser of property is bound to act as an ordinarily careful man would under the circumstances, and, if he acts in contravention to the dictates of reasonable prudence, and refuses to Inquire when the propriety of inquiry is naturally suggested by the circumstances known to him, he is chargeable with notice of the

facts which such an inquiry would have disclosed: Kirsch v. Tozier, 143 N. Y. 390; 42 Am. St. Rep. 729, and note; Mercantile Nat. Bank v. Parsons, 54 Minn. 56; 40 Am. St. Rep. 299, and note; also, Jennings v. Todd, 118 Mo. 296; 40 Am. St. Rep. 373, and note.

VENDOR AND PURCHASER--BONA FIDE PURCHASERS, WHO MAY CLAIM PROTECTION AS-BURDEN OF PROOF.The great weight of authority holds that one claiming title to land by a decd to him purporting to be made for a valuable consideration, is presumed to be a purchaser in good faith without notice, and while the fact of notice may be inferred from circumstances, as well as proved by direct evidence, the proof must be such as to affect the conscience of the purchaser, and must be strong enough to fix upon him the imputation of mala fides: Extended note to Anthony v. Wheeler, 17 Am. St. Rep. 288, 290. See, also, Warnock v. Harlow, 96 Cal. 298; 31 Am. St. Rep. 209.

MYGATT V. COE.

[152 NEW YORK, 457.]

COVENANTS OF WARRANTY, WHEN DO NOT PASS WITH THE LAND.-If a husband joins with his wife in a conveyance of her separate estate, and covenants that she has good right to convey the premises, and the deed also contains the usual cove nants of warranty and for quiet enjoyment, such covenants, as against the wife, pass with the land, because she has possession of it, and delivers such possession to her grantee, but as the husband had no possession in his own right, and therefore delivered none to the grantee, his covenant is personal, and does not run with the land, and a subsequent grantee cannot recover against the husband thereon, unless he can prove its assignment to him.

HUSBAND AND WIFE-HUSBAND'S POSSESSION OF, OR INTEREST IN, HIS WIFE'S LANDS.-Though a husband lives with his wife and family on her lands, and pays taxes thereon, and keeps them in repair, this does not impair her title to the possession, nor give him the possession of the property or any right to the possession thereof.

HUSBAND AND WIFE, EFFECT OF HIS COVENANTS IN JOINING IN A CONVEYANCE OF HER LANDS.-If a husband joining in a conveyance with his wife of her separate property covenants that she has a good title, and the deed also contains covenants of general warranty, such covenants on the part of the husband are personal, and do not pass to a subsequent grantee of the land.

HUSBAND AND WIFE EVIDENCE OF HIS RIGHT TO THE POSSESSION OF HER LAND.--The fact that a husband negotiates for the sale of his wife's land, executes a written contract of sale in his own name, delivers the deed to the purchaser, receives a check for a part of the purchase price payable to his order, and takes the bond and mortgage to his wife for the balance of the purchase price, does not show that she had surrendered possession of such land to him, or conveyed to him any interest therein sufficient to carry with the land, as against him, any covenant contained in a conveyance thereof in which he joined with her.

THE COVENANT OF A STRANGER TO THE TITLE, it appearing from the deed that he did not claim the property which he purports to convey, is personal to the covenantee, and incapable of transmission by his mere conveyance of the land.

Edward M. Grout and Almet F. Jenks, for the appellants. W. S. Cogswell and Joseph H. Choate, for the respondent. 459 O'BRIEN, J. The question of law in this case has been so fully discussed in this court and in the courts below on former appeals that very little is left to be said that would be perti.nent now.

460 A married woman, who had purchased and paid for a piece of real estate, which was conveyed to her for her sole and separate use, free and clear from any control of her husband, lived in the house for several years with her husband, and, on April 12, 1867, supposing that she had a good title, sold the same to one Nancy Fisher, executing a conveyance thereof containing the usual covenants of warranty and quiet enjoyment. In this deed her husband joined, for what purpose does not expressly appear. It was, no doubt, a very common occurrence at the time in cases of deeds by married women of their separate real estate. Subsequent events disclosed the fact that the grantors in this deed had no title, and a remote grantee was evicted, under paramount title, on November 30, 1878. The plaintiffs' title and right to maintain this action are derived solely from a mortgage from Mrs. Fisher, which was foreclosed by judgment entered June 5, 1879, and they received the sheriff's deed August 14, 1879. The plaintiffs were never in the actual possession of the land, and were never in fact actually evicted, but they rely upon the eviction of one of Mrs. Fisher's grantees, subject to the mortgage.

The covenant of the husband was, that his wife, at the time of the grant, was lawfully seised in her own right of the estate granted; that she had good right to convey the premises, full power and lawful authority to grant, bargain, sell, and convey the same in manner and form aforesaid, with the usual covenants of warranty and quiet enjoyment. This covenant upon its face was personal, having been made by the husband, who was in law a stranger to the title, with no interest in the land conveyed. It may have been good as an indemnity to the immediate grantee of his wife, who, as covenantee, held and owned it. But in order to make it available to the plaintiffs, who are remote grantees, it must be shown that it was assigned or passed to them. Since it is not claimed that it was ever assigned to them in fact, they must show that it became annexed to the land and passed to them with the land through the various conveyances from the original covenantee, Mrs. Fisher. That is the question that has always stood in 401 the way of plaintiff's recovery in this case:

Mygatt v. Coe, 147 N. Y. 456; 142 N. Y. 78; 124 N. Y. 212. There must be some privity of estate or contract between the covenantor and the party who asserts a right to recover damages for breach of the covenants, and it has been held in this case that possession in the grantor is a sufficient title or estate to carry the covenants down through the line of conveyances to a remote grantee. This doctrine was asserted by Judge Finch when the case was here on a former appeal: Mygatt v. Coe, 142 N. Y. 78. The authority cited by him to sustain that proposition illustrates what he evidently meant by the rule. It was the case of Beddoe v. Wadsworth, 21 Wend. 120. That was an action upon a covenant in a deed like the one now under consideration. The grantor and covenantor had no title when he made the conveyance, and it was claimed that since he never had any interest in the land, that the covenant never became annexed to the land, but was broken at the moment the conveyance was made, and it did not pass to the plaintiff, who was a remote grantee. There was a demurrer to the declaration and the case turned upon facts admitted by the demurrer. The declaration alleged that the grantor had put the grantee into possession of the lands described in the deed, and this fact was admitted by the demurrer. It was held that the delivery of possession of the lands by the grantor to the grantee vested in the latter such an estate as carried the covenants with it, that they thus became annexed to the land and a part of it, and passed with it to successive grantees.

This principle is plainly applicable to Mrs. Coe. When she conveyed to Mrs. Fisher she had no title whatever, but she delivered possession to her grantee, and this was sufficient to attach her covenant to the land, and so it passed with the land to remote grantees. It was her act and her deed that conferred posBession and secured enjoyment of the premises to her grantee. She had no other estate, right, or title to the property through which her covenant could be annexed to the land or pass with it. There is no difficulty in holding that the covenant of the wife was annexed to the land by the 462 delivery of the possession to her grantee. But the plaintiffs' case requires us to go still further and hold that her husband was also in possession and delivered such possession to her grantee as attached his covenants to the land and passed them to remote grantees. The basis of this proposition is, that the husband had either the sole possession or a divided possession. Since a married woman may hold real estate in her own right, and may convey the same in like manner as if she were unmarried, there must attach to her title and accompany it all the usual incidents and marks of ownership. She