terest and right have passed and vested in the purchaser, can at all affect the right of the vendor, to retain a lien upon the land to secure the payment of the purchase money.

The other objection urged to the existence of a lien in the present instance, supposed to arise from a want of compliance by the vendor with the law concerning the registration of deeds, 1 Laws of Tex. 155, seems equally untenable. The statute, to which reference is made, clearly contemplates the recording only of

instruments of writing," giving title or "color of title" to, or a lien upon lands. It was not intended to embrace any equitable lien not evidenced by writing; nor by requiring an impossibility to be performed, to destroy an existing right indirectly and by implication. In Miller v. Mercier, 3 Mart. (N. S.) 233 [15 Am. Dec. 156], it was said that "tacit liens resulting from acts done, and not from contracts reduced to writing, were not embraced by the provision of the law (concerning registration) because, among other reasons, it was impossible such acts could be recorded." We think the defendant in the case before us had a lien upon the lot now in controversy, for the unpaid purchase money, subsisting as between him and his vendee, George C. Briscoe, from the sale to the latter in 1838, until the purchase by the former, at sheriff's sale in 1840; and that it was in no degree impaired, or affected by the absence of a conveyance in writing, or the want of registration.

2. Is the plaintiff's title affected with notice of this lien? The effect of bringing home to the plaintiff notice of the defendant's lien, would be, that the former can derive no benefit from his legal title, as against the latter. A purchaser with notice of a lien takes the estate, if at all, subject to the prior equity, and can not set up his title against the person holding it, until he has first paid off and discharged the incumbrance. The notice is said to raise a trust in him, to the amount of the lien. And if (as in the present case) the purchaser resists, and seeks to overcome the claims of the party having the prior equity, and it be made to appear that he purchased with notice, he will be held a trustee for the benefit of the party whose rights he has thus sought to defraud and defeat: 2 Sug. Vend. 279. The ground of the doctrine is stated by Lord Hardwicke to be that, "the taking of a legal estate after notice of a prior right, makes a person a mala fide purchaser; and not that he is not a purchaser for a valuable consideration, in every other respect. This is a species of fraud or dolus malus itself:" Le Neve v. Le Neve, 3 Atk. 646.

AM. DEC. VOL. XLVI-8

What shall constitute notice, says Mr. Justice Story in cases of subsequent purchasers, is a point of some nicety, and resolves itself, sometimes into matter of fact and sometimes into matter of law: Story's Eq. 400. It is, perhaps, impossible to lay down definite rules as to what facts shall be deemed proof of constructive notice in every case, "for it must depend upon the infinitely varied circumstances of each case:" 4 Kent's Com. 179. It is a general rule that whatever is sufficient to put a party upon inquiry, amounts in judgment of law to notice; for "constructive notice is no more than evidence of notice, the presumption of which is so violent that the court will not even allow of its being controverted:" 2 Sug. Vend. 278. It is upon this ground that every man is presumed to know what passes in the courts of justice of the government in which he resides; and therefore a purchase of property actually in litigation, though for a valuable consideration, and without any notice in point of fact, affects the purchaser in the same manner as if he had such notice. This principle is sought to be applied in the case before us; and it is insisted by the defendant that the plaintiff purchased lis pendens, and consequently is affected with constructive notice. That the purchaser of the subject-matter of a suit pendente lite, acquires no interest as against the title, whether legal or equitable, of the plaintiff in that suit, is well settled. Such sale as against the plaintiff is considered a nullity. The decree of the court binds the property in the hands of such purchaser, although he is no party to the suit, and had, in fact, no notice of the suit, or the claim of the plaintiff; and although he paid for the property its full value. He is charged with constructive notice of the pendency of such suit; so as to render the interest he might have acquired by his purchase, in the subject of it, liable to abide its event: Ludlow v. Kidd, 3 Ohio, 541. And had the suit in question been prosecuted for the purpose of enforcing the lien, and in the manner proper for attaining that object, making the premises purchased directly the subject of litigation in the suit; there would have been such a lis pendens as to charge the appellant with notice of the lien. But it is justly contended by the appellant that such was not the case. The petition in the suit for the purchase money is not before us; but the judgment, as presented in the record, merely establishes the amount of indebtedness, and changes its character from a simple contract debt to a debt of record. Had the object of the suit been directly to establish and enforce the lien, it is evident that it failed to attain that object, and the

inference would be unfavorable to the appellee. But we are satisfied that such was not its object; and though the lien still subsisted, it was not asserted in that action; nor does there appear to have been anything in the proceeding to charge the appellant with constructive notice.

But although there may be, in the case, no evidence to charge the plaintiff with constructive notice of the lien; yet, under the issue presented, the question of actual notice was a proper one for the jury, and one which must have been considered by them. The answer charged the plaintiff with fraud. That issue was found for the defendant; and the question of notice was necessarily involved in that finding, for the plaintiff could not have intended a fraud upon a party, of whose rights he was ignorant. The circumstances mainly relied on, as proof of actual notice, are the relative situations as principal and agent of the plaintiff, and his vendor, George C. Briscoe; that the former, as such agent, attended the term of the district court when the suit of the appellee for his purchase money was pending against his principal, and procured the continuance of a cause in which his principal was defendant; that the suit and its subject-matter were within the scope, and peculiarly the subject of his cognizance and authority as agent; and his means of knowing the facts of the appellee's demand, in consequence of the business confided and confidence reposed in him by his principal, the party most materially interested and affected by the facts, and the suit upon them then pending. If he had a knowledge of these facts, i. e., the indebtedness of his principal and the origin of that indebtedness, he had notice of their legal consequence, which was the lien of the defendant upon the premises, and his title is thereby affected.

The questions in the present case, of actual notice and fraud, being so intimately connected and dependent, one upon the other, and both upon the same evidence, and involved in the same issue and verdict, may be considered together under the remaining inquiry.

3. Is the plaintiff's title affected with fraud? There was no direct and positive evidence of notice, or of any intent, on the part of the appellant, to defraud the appellee; but there were facts and circumstances proven, conducing to charge the plaintiff with notice and fraud, and whether they were sufficient to justify the verdict, is now the subject of inquiry.

Although fraud (it is said) will not be presumed, but must be proved, yet it may be proved by circumstantial, or presumptive

evidence: Ohio Cond. 128; Gregg v. Sayre, 8 Pet. 244; 1 Story's Eq. 206, 207. The circumstances relied on to charge notice and fraud upon the appellant (in addition to those already mentioned, as arising from the peculiar and confidential relation of principal and agent existing between the parties-the scope and object of the agency-the business actually transacted by the agent, and the opportunity of time and place and means afforded him of obtaining a knowledge of the facts), are the date and contents of the deed of trust; the consideration paid by the plaintiff, at the sale by the trustee; the omission to show upon what consideration the trust deed was executed; or, that any consideration whatever passed; or any previous indebtedness had existed between the beneficiary in that deed, and the other parties to it; and the total absence of any proof tending to explain the transaction, and show it to have been fair and bona fide-though it had been especially challenged for fraud.

The purchase was made pending the writ, and upon the eve of the judgment recovered by the appellant for the purchase money; and this, according to Twyne's Case, 3 Co. 80, was a "sign and mark" of fraud: and, according to Gilmore v. The North Am. Land Co., 1 Pet. C. C. 460, a fraudulent intent will in general be presumed from the fact that the party conveying was indebted at the time when the conveyance was executed." If any consideration passed from the plaintiff to his vendor, or there existed any previous indebtedness, these facts were susceptible of easy proof; and the plaintiff was fully apprised of the necessity of being prepared with such proof, by the charge of fraud expressly made in the answer. Yet he is content to suffer the transaction out of which the deed of trust arose, to remain wholly without explanation, by any evidence extrinsic of the deed itself. He has direct and explicit notice of the charge he will be called upon to meet and repel; facts are proved, which cast suspicion upon his titles, and throw upon him the burden of proof; yet he makes no attempt to explain the transaction, or to repel the presumptions arising against him. He exhibits his mere naked legal title, and rests on that alone; though called upon to answer to a prior equity, in respect to which that legal title is impeached, as having had its inception and consummation in fraud.

If, as has been contended for him, his title had its origin in the right of his vendor to prefer one creditor to another, it devolved on him to establish, by evidence other than his deed of trust (for its validity, and the verity of its contents were the

very points in question), that he was a bona fide creditor. This, he not only has omitted to do, but has left the jury at liberty to draw an inference, unfavorable to his having been a creditor, from the fact that he produces no other evidence of indebtedness, than a mere recital in the deed, of a note, as having beer then given him by his vendor, for the payment of four hundred and twenty-two dollars; and also unfavorable to the solvency of his vendor, from the fact that the latter had suffered that part of the lot embraced in the deed of trust (being the property in controversy, and which, for aught that appears, may have included the principal part in value of the premises, which a short time before had been sold for one thousand two hundred dollars, and which he had more recently purchased at an advance upon that sum of one thousand dollars), to be sold for two hundred and seventy-five dollars. Inadequacy of price, so gross, naturally leads to the presumption of fraud, of the description alluded to by Lord Hardwicke, when he said: "Fraud may be apparent from the intrinsic nature and subject of the bargain itself; such as no man in his senses, and not under a delusion, would make, on the one hand; and no honest and fair man would accept, on the other: 1 Story's Eq., sec. 158. "Inadequacy of price," say the court in Wright v. Stanard, 2 Brock. 311,"may be so great as to be evidence of fraud proper to be submitted to a jury." And though it would not, in itself, under the English law, afford a ground for avoiding the sale, yet it would raise a strong presumption against it, and would come under the denunciation of their courts of equity, as demonstrative of some gross imposition-as inequitable and unconscientious-and under the more severe denunciation of the civil law (where, it is said, the very elements of the doctrine of equity upon this subject may be seen), as in violation of the law of nature, which obliges us to take no advantage of the necessities of the seller: 1 Story's Eq., sec. 247; and whenever lands are the subject, annuls the sale, where the price given for them is less than half their value: Id.

This doctrine is not intended to be asserted as governing the case before us, but only as indicative of the presumptions which may be afforded by the terms and contents of the conveyance itself, and the necessity of proof to repel those presumptions. In Louisiana it has been held, that a conveyance which gives all the property of a debtor to a single creditor, who has no preference by law, is fraudulent, both on the part of the debtor and creditor; and when attacked as fraudulent, it is for the vendee