a'.

Hubbell v. Currier, 10 Allen (Mass.) 333; Loomis v. Brush, 36 Mich. 40; Heffron v. Flanigan, 37 Mich. 278; Hollister v. Loud, 2 Mich. 313; Smith v. Gibson, 15 Minn. 89; Harper v. Bibb, 34 Miss. 472; s. c., 69 Am. Dec. 397; Fury v. Kempin, 79 Mo. 477; Skinner Oakes, 10 Mo. App. 45; Matthews v. Lecompte, 24 Mo. 545; Wineland v. Coonce, 5 Mo. 296; s. C., 32 Am. Dec. 320; Howe v. Waysman, 12 Mo. 169; s. c.; 49 Am. Dec. 126; Durant v. Crowell, 97 N. Car. 467; McCorkle v. Earnhardt, Phill. L. (N. Car.) 300; Freeman v. Eatman, 3 Ired. Eq. (N. Car.) 81; s. c., 40 Am. Dec. 444; Potts v. Blackwell, 4 Jones Eq. (N. Car.) 58; Wilson v. Parshall, 7 N.Y. Supp. 479; Dickerson v. Tillinghast, 14 Paige (N.Y.) 215; s. c., 25 Am. Dec. 528; Whittick v. Kane, i Paige (N. Y.) 202; Moyer v. McIntyre, 43 Hun (N. Y.) 58; King v. Wilcomb, 7 Barb. (N. Y.) 268; Riley v. Hoyt, 29 Hun (N. Y.) 114; Jackson v. Henry, 10 Johns. (N.Y.) 185; s. c., 6 Am. Dec. 328; Anderson v. Roberts, 18 Johns. (N. Y.) 515; s. c., 9 Am. Dec. 235; Juliand v. Rathbone, 39 Barb. (N. Y.) 103; Seymour v. Wilson, 19 N. Y. 417; Ledyard v. Butler, 9 Paige (N. Y.) 132; Clark v. Mackin, 30 Hun (N. Y.) 411; s. C., 37 Am. Dec. 379; Galatian v. Erwin, Hopk. (N. Y.) 48; Fassett v. Smith, 23 N. Y. 252; Malcom v. Loveridge, 13 Barb. (N. Y.) 372; Fort v. Burch, 5 Den. (N. Y.) 193; Viele v. Judson, 15 Hun (N. Y.) 332; Wood v. Chapin, 13 N. Y. 520; s. c., 67 Am. Dec. 62; Bush v. Lathrop, 22 N. Y. 549; Jackson v. Henry, 10 Johns. (N. Y.) 185; s. c., 6 Am. Dec. 328; Jackson v. Van Valkenburgh, 8 Cow. (N. Y.) 260; Hoyt v. Sheldon, 3 Bosw. (N. Y.) 267; Stoddard v. Rotton, 5 Bosw. (N. Y.) 378; Hogarty v. Lynch, 6 Bosw. (N. Y.) 138; Ely v. Scofield, 35 Barb. (N. Y.) 330; Whittemore v. Bean, 6 N. H. 47; Booraem v. Wells, 19 N. J. Eq. 87; Danbury v. Robinson, 14 N. J. Eq. 213; s. c., 82 Am. Dec. 244; Letson v. Letson, 17 N. J. Eq. 103; Hogan v. Jaques, 19 N. J. Eq. 123; s. c., 97 Am. Dec. 644; Ludlow v. Kidd, 3 Ohio 541; Swift v. Holdridge, 10 Ohio 230; s. c., 36 Am. Dec. 85; Wilkins v. Irvine, 33 Ohio St. 138; Pancake v. Cauffman, 114 Pa. St. 113; Scott v. Burton, 2 Ashm. (Pa.) 312; Hoffman v. Strobecker, 7 Watts (Pa.) 86; s. c., 32 Am. Dec. 740; Hood v. Fahnestock, 8 Watts (Pa.) 489; s. c., 34 Am. Dec. 489; Shaw v. Read, 47 Pa. St. 96; Mott v. Clark, 9 Pa. St. 399; s. c., 49 Am. Dec. 566; Tillinghast v. Champlin, 4

R. I. 173; s. c., 67 Am. Dec. 510; Wamburgee v. Kennedy, 4 Desaus. (S. Car.) 474; Lewis v. Taylor, Riley (S. Car.) 179; London v. Youmans, 31 S. Car. 147; Turner v. Petigrew, 6 Humph. (Tenn.) 438; Perkins v. Hays, Cooke (Tenn.) 163; s. c., 5 Am. Dec. 680; Coleman v. Satterfield, 2 Head (Tenn.) 259; Byrd v. Wilcox, 8 Baxt. (Tenn.) 65; Worley v. State, 7 Lea (Tenn.) 382; Woodward v. Suggett, 59 Tex. 619; Allday v. Whittaker, 66 Tex. 669; Garrison v. Crowell, 67 Tex. 626; Sydnor v. Roberts, 13 Tex. 598; s. c. 65 Am. Dec. 84; Wethered v. Boon, 17 Tex. 143; Watson v. Chalk, 11 Tex. 89; McKeen v. Sultenfuss, 61 Tex. 325; Preston v. Nash, 76 Va. 1; Carter v. Allen, 21 Gratt. (Va.) 248; Love v. Braxton, 5 Call. (Va.) 537; Moore v. Hunter, 6 Ill. 317; Hunter v. Lawrence, 11 Gratt. (Va.) 111; s. c., 62 Am. Dec. 640; Massie v. Greenhow, 2 Patt. & H. (Va.) 255; Hoult v. Donahue, 21 W. Va. 294; Atkinson v. Hewitt, 63 Wis. 396; Crocker v. Bellange, 6 Wis. 645; s. c., 70 Am. Dec. 489; Hall v. Delaplaine, 5 Wis. 206; s. c., 68 Am. Dec. 57; Lamont v. Stimson, 5 Wis. 443; Wynn v. Carter, 20 Wis. 107; Hoyt v. Jones, 31 Wis. 389; Everts v. Agnes, 4 Wis. 356; s. c., 65 Am. Dec. 314; Gilbough v. Norfolk etc. R. Co., 1 Hughes (U. S.) 410; Sedgwick . Place, 1 Blatchf. (U. S.) 163; Foreman v. Bigelow, 4 Cliff. (U. S.) 508; Dexter 7. Harris, 2 Mason (U. S.) 531; Wood v. Mann, I Sumn. (U. S.) 506; Fletcher v. Peck, 6 Cranch (U. S.) 87; Lea v. Polk Copper Co., 21 How. (U. S.) 493; Astor v. Wells, 4 Wheat. (U. S.) 466; Bridge v. Beadon, L. R., 3 Eq. 604.

Suspicion of Notice.-A suspicion that one claiming to be a bona fide purchaser had notice is not sufficient to procure the interference of a court of equity. Knowledge must be clearly shown. Miller v. Fraley, 23 Ark. 735

Obtaining a patent for land, and selling to a purchaser for a valuable consideration, does not preclude enquiry as to adverse claims founded on an equity arising previous to the patent, and of which the purchaser had no notice. Gonzalus v. Hoover, 6 S. & R. (Pa.) 118.

When the Doctrine Is Applicable.—The doctrine that a purchaser without notice, for a valuable consideration, is entitled to the protection of the court, is only applicable to a case where there is prior equitable title; but where there is prior legal title, the rule is caveat emptor. Daniel v. Hollingshead, 16 Ga..190. See Taylor v. Stone, 3 Munf. (Va.) 314.

The doctrine of bona fide purchasers has no application when either one or the other of the parties has both the legal and equitable title, and the dispute is as to which has it. Wells v. Walker, 29 Ga. 450.

The defence of a defendant, that he is a purchaser for value without notice, is only available where the plaintiff is seeking to take something away from the defendant which he already has. Barnard v. Hunter, 39 Eng. L. & Eq. 569.

There is no distinction between a "purchaser in good faith," under the recording act, and a bona fide purchaser within the decisions of the court of equity in other cases. Grimstone v. Carter, 3 Paige (N. Y.) 421; s. C., 24 Am. Dec. 230.

Evidence. Whether a party, prejudiced by an unrecorded deed, be a bona fide purchaser, for a valuable consideration, without notice, is a question for the jury. Chiles v. Conley, 2 Dana (Ky.)

21.

1. Bryan v. Walton, 14 Ga. 185; Sampeyreac v. United States, 7 Pet. (U. S.) 222; Oakley v. Ballard, 1 Hempst. (U. S.) 475:

2. "For if either of those persons took and recorded the conveyance to himself in good faith, and in ignorance of the prior grant, his title was not only good, but he could confer a like perfect title upon one who had full knowledge of such prior conveyance. 'If this were otherwise,' as CHANCELLOR WALWORTH says, in Varick v. Briggs, 'a bona fide purchaser might be deprived of the power of selling his property for its full value."" Simon v. Kaliske, I Sweeny (N. Y.) 304. See also Lacustrine Fertilizer Co. v. Lake Guano & F. Co., 82 N. Y. 484; Wood v. Chapin, 13 N. Y. 500; s. C., 67 Am. Dec. 62; Kinney v. McCullough, 1 Sandf. Ch. (N. Y.) 376; Varick v. Briggs, 6 Paige (N. Y.) 323; Sweet v. Green, 1 Paige (N. Y.) 476; s. c., 19 Am. Dec. 442; Webster v. Van Steenbergh, 46 Barb. (N. Y.) 211; Colquitt v. Thomas, 8 Ga. 258;

Lee Cato, 2 Ga. 637; s. c., 73 Am. Dec. 746; Truluck v. Peeples, 3 Ga. 446; Brown v. Budd, 2 Ind. 442; Lindsey v. Rankin, 4 Bibb (Ky.) 482; Blight v. Banks, 6 B. Mon. (Ky.) 192; s. c., 17 Am Dec. 136; Bartlett v.Varner, 56 Ala. 580; Pierce v. Faunce, 47 Me. 507; Glidden v. Hunt, 24 Pick. (Mass.) 221; Trull v. Bigelow, 16 Mass. 406; s. c., 8 Am. Dec. 444; Boynton v. Rees, 8 Pick. (Mass.) 329; s. c., 19 Am. Dec. 326; Godfroy v. Disbrow, Walk. Ch. (Mich.) 260; Shotwell v. Harrison, 22 Mich. 410; Lusk v. McNamer, 24 Miss. 58; Funkhouser v. Lay, 78 Mo. 458; Taylor v. Kelly, 3 Jones Eq. (N Car.) 240; Bell v. Twilight, 18 N. H. 159; s. c.. 45 Am. Dec. 367; Filby . Miller, 25 Pa. St. 264; Church . Church, 25 Pa. St. 278; Bracken v. Miller, 4 W. & S. (Pa.) 102; Meehan 7. Williams, 48 Pa. St. 238; East . Pugh, 71 Iowa 162; Suiter v. Turner, 10 Iowa 517: Barber v. Richardson, 57 Vt. 408; Day v. Clark, 25 Vt. 397; Ashby v. Harrison, 1 Patt. & H. (Va.) 1; Jones v. Hudson, 23 S. Car. 494; Dopson v. Harley, reported in note to Brown 7. Wood, 6 Rich. Eq. (S. Car.) 176; McKnight v. Gordon, 13 Rich. Eq. (S. Car.) 222; s. c., 94 Am. Dec. 164; Holmes v. Stout, 10 N. J. Eq. 419; Card. 7. Patterson, 5 Ohio St. 319; The D. M. French, 1 Low. (U S.) 43: Piatt v. Vattier, McLean (U. S.) 146; Runyan v. Smith, 18 Fed. Rep. 579.

Partition by Tenants in Common.—A, B and C, in equal shares, owned land in common, a portion of which was charged, as against them, with an equitable encumbrance not appearing on record. A sold out his undivided interest to D, who purchased without notice, in good faith and for full value, and B subsequently sold out his undivided interest to E, a purchaser with notice, though for full value. C, D and E subsequently made an amicable and equal partition of the land (D still having no notice of the encumbrance) by an exchange of deeds, the part set to Ě including the whole of the encumbered

portion, and being estimated at its full value without allowance for the encumbrance. Upon a bill in equity brought against E to establish the encumbrance it was held that he could not take advantage of the want of notice on the part of D to protect his title to the part now owned by him in severalty. Blatchley v. Osborn, 33 Conn. 226.

Knowledge of Real Party in Interest.If real estate, at the time of a purchase by a mother as an advancement for her daughter, is subject to the lien of an unrecorded mortgage, of which the daughter had knowledge, the mother cannot, from her payment of the purchase money, be considered a purchaser without notice, nor can the daughter defend under her as such, in an ejectment for the land, brought by a purchaser at sheriff's sale, under proceedings upon the mortgage. Murphy v. Nathans, 46 Pa. St. 508.

Fraud on Part of Grantee With Notice. -Though a purchaser with notice from one without notice takes the latter's rights, yet if, confederating with the original vendee, he has procured the purchase under a foreclosure sale, to be made by the innocent purchaser, intending to purchase from him and to defeat the vendor's lien, he shall take nothing by his fraud. Chance v. McWhorter, 26 Ga. 315.

Part Remaining in Hands of One With Knowledge.-A bill in equity to establish rights in land should be dismissed as to a bona fide purchaser of a portion of it who had no notice of complainant's equities; but if his grantor is charged with notice the amount remaining in his hands may properly be charged with the whole amount of complainant's lien. Holcomb v. Mosher, 50 Mich. 252.

Purchaser with Notice at Foreclosure Sale. A purchaser at a sale under a

mortgage having actual notice of an outstanding equity, may nevertheless take advantage of the want of notice on the part of the mortgagee, since otherwise the mortgage would be a worthless security. Cahalan v. Monroe, 56 Ala. 303.

Announcement of Defect Unknown to Mortgagee Made at Sale.- Where the mortgagee is not chargeable with notice of outstanding equities against the mortgagor's title, the purchaser at the sale under the power in the mortgage is not chargeable by reason of an announcement first made at the sale. Whitfield v. Riddle, 78 Ala. 99.

1. Church v. Church, 25 Pa. St. 278; Bumpus v. Platner, 1 Johns. Ch. (N. Y.) 213.

When Party Without Notice Is Only Nominal Purchaser.-The sale will be set aside, although the nominal purchaser was ignorant of the facts of the case, when he took the property only as security for his advance of the purchase money, and he has since, his debt being paid, conveyed the premises to the real purchaser, who was fully acquainted with the circumstances of the sale. Runkle v. Gaylord, 1 Nev. 123.

2. Center v. Planter's etc. Bank, 22 Ala. 743; Bartlett v. Varner, 56 Ala. 580; Pollak v. Davidson, 87 Ala. 551; Bush v. Golden, 17 Conn. 594; Ryder v. Rush, 102 Ill. 338; Brown v. Welch, 18 Ill. 343; s. c., 68 Am. Dec. 549; Rogers v. Wiley, 14 Ill. 65; s. c., 56 Am. Dec. 491; Spofford v. Weston, 29 Me. 140; Newton v. McLean, 41 Barb. (N. Y.) 285; Morris v. Daniels, 35 Ohio St. 406.

3. Sillyman v. King, 36 Iowa 207; Davis v. Nolan, 49 Iowa 683; Throckmorton v. Ryder, 42 Iowa 84; Light v. West, 42 Iowa 138; Berry v. Whitney, 40 Mich. 65; Letson v. Reed, 45 Mich.

been returned by the bailiff to the under sheriff after the levy, while the sheriff was yet, in office, and the bailiff, upon being called as a witness, did not produce it, it was held that notice to the sheriff's attorney was sufficient. Taplin v. Atty, 3 Bing. 164; 10 Moore 564. Where, in an action against the directors of an intended company, it was

shown that four months before the trial the late secretary had the books in a desk at the office of the company, and that he then gave up the key of the desk to the manager of the company, it was held that this was sufficient. Bell v. Francis. 9 Carr. & P. 66. In an action against a sheriff, after the expiration of his year of office, a notice served on his attorney to produce a warrant returned to the deputy sheriff of London, during the sheriff's year of office, was held sufficient. Suter v. Burrell, 2 H. & N. 867; 27 L. J. Exch. 193. Where a bill of exchange was the consideration upon which the action was brought, it was held that it must be produced upon notice, or that secondary evidence might be given, although the party holding it had discounted it with his banker before notice. Wright v. Bungard, 2 F. & F. 193.

Where an action was brought against two executors, and one of them suffered judgment to be taken against him by default, and the probate of the will was produced and notice had been served on both of them to produce a receipt given to the one in default, it was held that, if it was not produced, secondary evidence of its contents might be given, and that it made no difference that the one to whom the receipt had been given had suffered default. Beckwith v. Benner, 6 Carr. & P. 681. It is sufficient if there is merely evidence to go to the jury that the document is in the party's possession on whom notice has been served to produce. Robb v. Starkey, 2 Carr. & K. 143.

English Cases Holding the Paper Not

to be in the Possession or Under the Control of the Party Who Had Been Served with Notice to Produce.—Where an action was brought upon a lease executed on behalf of the lessor under a power of attorney, and no subpœna duces tecum had been served on the party who executed the lease, it was held that the power of attorney was the property of the party who executed the lease under its authority, and that secondary evidence of its contents could not be given. Hibberd v. Knight, 2 Exch. 11; 17 L. J. Exch; 119.

Notice to produce is not sufficient to admit secondary evidence of a paper in the hands of a stakeholder between the party in the action and a third party. Parry v. May, 1 M. & Rob. 279.

1. Robb v. Starkey, 2 Carr. & K.

356.

4. Greenleaf on Ev., § 560.

Notice served on the attorney is sufficient. Simington v. Kent, 8 Ala. 691; Brown v. Littlefield, 7 Wend. (N. Y.) 454; Lagow v. Patterson, 1 Blackf. (Ind.) 327:

It was held sufficient notice to permit copies of deeds to be given in evidence where the notice to produce the originals was served on defendant's attorney, who was proved to have had them in his possession as the attorney for another defendant in an action brought by the plaintiffs for a part of the same premises, although it was not proved that the original deeds were ever in the possession of the defendant. Den v. McAllister, 7 N. J. L. 46.

Though the party of record is but a nominal party, notice to the attorney in the suit is sufficient; notice to the real party is not necessary. Brown v. Littlefield, 7 Wend. (N. Y.) 454; Lagow v. Patterson, 1 Blackf. (Ind.) 327; Simington v. Kent, 8 Ala. 691.