The question is whether it is not be deemed

is entitled to relief against payment of it (r). The particular consideration must, it should seem, be stated (s) (1), although this point has been decided otherwise (t). There can, however, be no objection to state the consideration, as, if it be valuable, the plea will not be invalidated by mere inadequacy (u). not whether the consideration is adequate, but valuable. For if it be such a consideration as will fraudulent within the statute of 27th Elizabeth, or is not merely nominal (x), or the purchase is such a one as would hinder a puisne purchaser from overturning it, it ought not to be impeached in equity.

8. The plea must also deny notice of the plaintiff's title or claim (y) previously to the execution of the deeds and payment of the purchase-money (z); for till then the transaction is not complete; and, therefore, if the purchaser have notice previously to that time he will be bound by it (a) (2). And the notice so denied must be notice of the existence of the plaintiff's title, and not merely notice of the existence of a person who could claim under that title (b). But a denial of notice at the time of making the *purchase, and paying the purchase-money, is good (3); and notice before the purchase need not be denied, because notice before is notice at the time of the purchase (4); and the party will in such case, on its being made appear that he had notice before, be liable to be convicted of perjury (c).

(r) See supra, p. 679.

(s) Millard's case, 2 Freem. 43; and Snag's case, cited ibid.; and see Wagstaff v. Read, 2 Cha. Ca. 156.

(t) Moor v. Mayhow, 1 Cha. Ca. 34; Day v. Arundell, Hard. 510.

(u) Basset v. Nosworthy, Finch, 102; Ambl. 767; Mildmay v. Mildmay, Ambl. 767, cited; Bullock v. Sadlier, Ambl. 764.

(x) See Moor v. Mayhow, 1 Cha. Ca. 34; Wagstaff v. Read, 2 Cha. Ca. 156.

(y) Lady Bodmin v. Vendebendy, 1 Vern. 179; Anon. 2 Ventr. 361, No. 2.

() Moor v. Mayhow, 1 Cha. Ca. 34; Storey v. Lord Windsor, 2 Atk. 630; Attorney-general v. Gower, 2 Eq. Ca. Abr. 685, pl. 11.

(a) Vide supra, p. 689; supra, p. 1036. (b) Kelsall v. Bennett, 1 Atk. 522; which has overruled Branton v. Barker, 2 Vern, 159, cited.

(c) Jones v. Thomas, 3 P. Wms. 243.

(1) See High v. Batte, 10 Yerger, 335; Donnell v. King, 7 Leigh, 393. (2) Jewett v. Palmer, 7 John. Ch. 65; Wood v. Mann, 1 Sumner, 506; Wilson v. Hillyer, 1 Saxon N. J. 63; Story Eq. Pl. §806; Pillow v. Shannon, 3 Yerger, 508; Frost v. Beekman, 1 John. Ch. 288, 301; Williams v. Hollingsworth, 1 Strobh. Eq. 103; Boone v. Chiles, 10 Peters (S. C.) 177, 211, 212; ante, 1036 and cases cited in note; De Mott v. Starkey, 3 Barbour Ch. Rep. 403.

(3) See Snelgrove v. Snelgrove, 4 Desaus. 287; Murray v. Finster, 2 John. Ch. 155, 157.

(4) To make the plea of bona fide purchaser without notice available, the notice before the whole of the purchase-money was paid and conveyance received, must be denied. Natz v. M'Pherson, 7 Monroe, 599; Frost v. Beekman, 1 John. Ch. 298, 303; Jewett r. Palmer, 7 John. Ch. 65; High . Batte, 10 Yerger, 385.

9. The notice must be positively and not evasively denied (d), and must be denied, whether it be or be not charged by the bill (e). If particular instances of notice, or circumstances of fraud, are charged, the facts from which they are inferred must be denied as specially and particularly as charged (f) (1). So if the bill charges that the purchaser has in his possession certain papers and documents, whence it will appear that his is not a purchase without notice, the defendant is bound to support his plea by an answer to that charge (g).

10. But he need only by this plea deny notice generally (h), unless where facts are specially charged in the bill as evidence of notice (i) (2).

11. Notice must also be denied by answer, for that is matter of fraud, and cannot be covered with the plea, because the plaintiff must have an opportunity to except to its sufficiency if he think fit (k); but it must also be denied by the plea, because otherwise there is not a complete plea in court on which the plaintiff may take issue ().

12. Although a purchaser omit to deny notice by answer, he will be allowed to put in the point of notice by way of answer (m), and the omission will not invalidate his plea, if it is denied by that (n). If notice is omitted to be denied by the plea, and the plaintiff reply to it, the defendant has then only to prove his purchase, and it is not material if the plaintiff do prove notice, as he has waived setting down the plea for argument, in which case

(d) Cason v. Round, Prec. Cha. 226; and see 2 Eq. Ca. Abr. 682, (D.) n. (b.)

(e) Aston v. Curzon, and Weston v. Berkeley, 3 P. Wms. 244, n. (ƒ); and see the 6th resol. in Brace . Duke of Marlborough, 2 P. Wms. 491; Hughes v. Garner, 2 You. & Coll. 328.

(f) Meder v. Birt, Gilb. Eq. Rep. 185; Radford v. Wilson, 3 Atk. 815; and see Jerrard v. Saunders, 2 Ves. jun. 187 [Sumner's ed. notes]; 4 Bro. C. C. 322; 6 Dow, 230; Foley v. Hill, 3 Myl. & Cra. 478.

(9) Hardman v. Ellames, 5 Sim. 650;

2 Myl. & Kee. 732.

(h) Ovey v. Leighton, 2 Sim. & Stu.

234.

(4) Pennington v. Beechey, 2 Sim. & Stu. 282; Thring e. Edgar, 2 Sim. & Stu. 274.

(k) Anon. 2 Cha. Ca. 161; Price . Price, 1 Vern. 185 [4 Desaus. 287].

() Harris v. Ingledew, 3 P. Wms. 91; Meadows v. Duchess of Kingston, Mitf. on Plead. 2d edit. 216, n. [1 Desaus. 288].

(m) Anon. 2 Cha. Ca. 161.
(n) Coke v. Wilcocks, Mose. 73.

(1) Balcom v. N. York Life Ins. & Trust Co. 11 Paige, 454; Lowry r. Tew, 3 Barbour Ch. Rep. 407; Frost v. Beekman, 1 John. Ch. 298; Manhattan Co. . Evertson, 6 Paige, 457; Denning v. Smith, 3 John. Ch. 332, 345; Wilson e. Hillyer, 1 Saxton N. J. 63; Galatian e. Erwin, 1 Hopkins, 48; Pillow r. Shannon, 3 Yerger, 508; Murray v. Ballou, 1 John. Ch. 566; Murray e. Finster, 2 ib. 155; Snelgrove v. Snelgrove, 4 Desaus. 287.

(2) Griffith v. Griffith, 1 Hoff. Ch. Rep. 163.

it would have been overruled (o). If, however, a bill is exhibited against a purchaser, and he plead his purchase, and the bill is *thereupon dismissed, a new bill will lie charging notice, if the point of notice was not charged in the former bill, or examined to; and the former proceedings cannot be pleaded in bar (p). But if notice is neither alleged by the bill nor proved, and the defendant by his answer deny notice, an inquiry will not be granted for the purpose of affecting him with notice (9).

13. A plea of a purchase for valuable consideration without notice, will not be allowed where the purchaser might by due diligence have ascertained the real state of the title (r).

14. If a purchaser's plea of valuable consideration without notice be falsified by a verdict at law, and thereupon a decree is made against the purchaser, and he then carries an appeal to the House of Lords, it will be dismissed, and the decree affirmed without further inquiry (8).

15. The title of a purchaser for valuable consideration without notice is a shield to defend the possession of the purchaser (t), not a sword to attack the possession of others (u). It is clear that it will protect his possession from an equitable title, although even that has been sometimes questioned (x); whether it will avail against a legal title is perhaps doubtful (1).

(1) See Wood v. Mann, 1 Sumner, 506; 1 Story Eq. Jur. §410, note at end. "The point of doubt," says Mr. Justice Story, "has been, whether the defence ought to apply to a case, where the plaintiff founds his bill upon a legal title, seeking to support it by a discovery, and the defendant relies solely on an equitable title to protect himself from the discovery. Upon this point the authorities are at variance; but upon principle, it would seem difficult to resist the reasoning, by which the doctrine, that the purchaser is in such a case entitled to protection, is supported." Story Eq. Pl. §604a. See Snelgrove v. Snelgrove, 4 Desaus. 288, where this point is fully examined, and the Chancellor, Desaussure, remarks: "It should be remembered, that the plea protects by the court refusing to aid the plaintiff, in setting up a title. Now when the title attempted to be set up is an equitable one, it seems very reasonable, that the court should forbear to give its assistance in setting up such equitable title against another title set up by a fair purchaser. But when the plaintiff comes with a legal title, I do not see how he can be refused the aid of the court." See also Larrowe v. Beam, 10 Ohio, 498. [*1071]

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73

16. In Burlase v. Cooke (y), Lord Nottingham held the plea to be good against a legal estate; but in the subsequent case of Rogers v. Seale (z), he is reported to have been of a different opinion, and to have decreed accordingly. But unfortunately both these cases appear to be very ill reported.

17. In Parker v. Blythmore (a), the Master of the Rolls thought the plea good against a legal estate.

18. But in Williams v. Lambe (6), upon a bill filed by a dowress against a bona fide purchaser, without notice of the marriage, Lord Thurlow overruled the plea. He said that the only question was, whether a plea of purchase without notice would lie against a bill to set out dower; that he thought where the party is pursuing a legal title, as dower is, the plea did not apply, it being only a bar to an equitable, not to a legal claim.

19. In a later case (c), Lord Rosslyn considered it impossible *that Rogers v. Seale could be the decision of Lord Nottingham, and decreed that the plea could stand against a legal as well as an equitable title. Lord Rosslyn did not, however, mention the case of Williams v. Lambe, which is against the doctrine he laid down; nor did he notice the case of Parker v. Blythmore, which is in favor of it.

20. And in a very late case, the Master of the Rolls, following the case of Williams v. Lambe, was of opinion that the defence was of no avail against a legal title (d).

21. Upon principle, it would seem that Lord Rosslyn's decision was the correct one, and it has accordingly been acted upon in a late case in Ireland (e).

(y) 2 Freem. 24.

(z) 2 Freem. 84.

(a) 2 Eq. Ca. Abr. 79, pl. 1.

(b) 3 Bro. C. C. 264.

(d) Collins v. Archer, 1 Russ. & Myl. 284; see Payne v. Compton, 2 You. & Coll. 457.

(e) Bowen v. Evans, 1 Jones & Lat.

(c) Jerrard v. Saunders, 2 Ves. jun. 263.

454 [Sumner's ed. note].

[*1072]

APPENDIX.

No. I.

Conditions of Sale (a).

I. That the highest bidder shall be the buyer: and if any dispute arise as to the last or best bidder, the lot in dispute shall be put up at a former bidding.

. •

II. That no person shall advance less at any bidding than . 1. (I); or retract his or her bidding (b).

III. That every purchaser shall immediately pay down a deposit, in the proportion of . . . . l. for every 100l. of his or her purchase-money into the hands of the auctioneer (II); and sign an agreement for payment of the remainder to the proprietor, on the

next, at

day of at which time and place the purchases are to be completed, and the respective purchasers are then to have the actual possession of their respective lots; all outgoings to that time being cleared by the vendor.

IV. That within

from the day of the sale, the vendor shall, at his own expense, prepare and deliver an abstract of his title to each purchaser, or his or her solicitor: and shall deduce a good title (III) to the lots sold.

V. That upon payment of the remainder of the purchase-money at the time above mentioned, the vendor shall convey the lots to the respective purchasers: each purchaser, at his or her own expense, to prepare the conveyance to him or her; and to tender or leave the same at

for execution by the vendor (c).

VI. That if any of the purchasers shall neglect or fail to comply with the above conditions, his or her deposit-money shall be actually forfeited to the vendor, who shall be at full liberty to re-sell the lot or lots bought by him or her, either by public auction or private contract;

(a) Vide supra, p. 20.

(b) Payne v. Cave, 6 Term Rep. 148.

Vide supra, p. 20. This has now become an usual condition. (e) Vide supra, p. 39.

(I) Or thus, "than such sum as shall be named by the auctioneer at the time." This is scarcely ever done in the country; but the deposits are paid to

the agent of the vendor.

(III) Where the estate is leasehold, and the vendor cannot produce the lessor's title, this condition should go on thus: " to the lease granted of the premises; but the purchaser shall not be entitled to require, or call for the title of the lessor." Vide supra, p. 38.