dictum.

Farrell v. Lovett.

In Perrin v. Noyes, 39 Me. 384, 385, no such statement of the rule, as given by WESTON, C. J., was necessary to the decision of the case or was called for by the exceptions. In Wait v. Chandler, 63 Me. 257, WALTON, J., ruled that evidence to impeach a promissory note in the hands of a bona fide purchaser before matųrity and without notice was inadmissible. In other words, he must have actual notice,- a mere knowledge of suspicious circumstances would not be enough. In Smith v. Harlow, 64 Me. 510, 511, the court found the purchase of the bonds in controversy to have been made in good faith, for value, and without notice of any fraud. In Abbott v. Rose, 62 Me. 194, it was held that a bona fide purchaser without notice of any fraud may recover, although, as between the original parties, there was fraud in the inception of the note.

The result, after a careful examination of the authorities, is that the holder of negotiable paper, taking it before maturity for good consideration in the usual course of business, without knowledge of facts impeaching its validity, holds it by a good title.

To defeat his recovery it is not enough to show that he took it under circumstances that ought to excite suspicion in the mind of a prudent man.

Applying the principles established by an overwhelming weight of authority to the facts found in the case at bar, the plaintiff's right to recover is fully established. He had neither actual nor constructive notice of fraud, if it existed. He took the notes for value and in the usual course of business. The fact that a small discount was made is immaterial. It afforded no reason to suspect dishonesty in the obtaining the notes in suit, still less can it be regarded as establishing fraud in their inception, or as affording actual notice of its existence.

Judgment for plaintiff.

WALTON, DANFORTH, VIRGIN, LIBBEY and PETERS, JJ., concurred.

BARROWS, J., concurred in the result, because there was no evidence to connect the merchant with the peddler, except the inadmissible statement of the defendant that the peddler said he was the agent for the merchant, which should have been stricken out.

DICKERSON, J., non-concurred, on the grounds that the stateVOL. XXVIII- 9

Jones v. McNarrin.

ment that "the goods were manufactured from the best material " was an assertion of a material fact known by him to be false, but not known or determinable by the defendant on inspection of the goods; and that the facts should be submitted to the jury on the question of notice.

A record in the registry of deeds of a levy, designed to take a part of lot 32, but describing a part of lot 29 upon the same plan and survey, the description by metes and bounds perfectly fitting the one parcel as well as the other, excepting in the statement of the number of the lot, is not alone sufficient notice to a subsequent purchaser from the execution debtor, that a part of 32 instead of a part of 29 was in fact taken by the levy. Nor does the pendency of a real action in the name of the creditor against the debtor to recover the premises levied upon, the declaration containing the same erroneous description and none other, operate as a notice to a subsequent purchaser, that 32 instead of 29 was levied upon.

Lis pendens affects a purchaser with constructive notice of all the facts that are apparent on the face of the pleadings at the time he takes his deed, and of such other facts, as those facts necessarily put him upon inquiry for, and as such inquiry, pursued with ordinary diligence and prudence, would bring to his knowledge. (See note, p. 74.)

Ο

N report.

Writ of entry, for a certain piece of land with the buildings thereon, situate in Oldtown, in the county of Penobscot, and bounded as follows, to wit: "Beginning at the south-east corner of the lot of land occupied by Moses Buck, in June, 1862, and erroneously called lot No. 29 in a levy of this plaintiff against said Moses Buck, made June 9, 1862; thence northerly along the west side of the Bennock road, to a point opposite the center of the front door of the house on said lot, through the middle of the front entry of said house, to the east line or side of the stable; thence southerly at right angles, by the east side of said stable, to the south line of said lot; thence east to the first-mentioned bound."

Jones v. McNarrin.

The plaintiff, having an execution against one Moses Back, levied June 9, 1862, on the real estate in suit, and afterward recovered judgment against him for the land described as follows: "Commencing at the south-east corner of lot No. 29, according to Treat's plan of Upper Stillwater in Oldtown; thence northerly along the west side of the Bennock road to a point opposite the center of the front door of the house on said lot; thence," etc., the rest of the description being the same as in the declaration.

Pending the action of Jones v. Buck, Buck gave a deed of warranty, for a valuable consideration, of the land in question, which came by intermediate conveyances to the defendant. The land actually levied on was erroneously described in the levy as lot No. 29, and the action for its recovery, as shown in case of Jones v. Buck, 54 Me. 301, which makes part of this case, was maintained, on the ground that, although the starting point was the S. E. corner of lot number 29," none of the other calls applied to that lot, but all except the first did apply to lot 32. Additional evidence in this case tended to show another state of facts, and that all the calls in the levy were applicable as well to lot 29 as to lot 32.

J. Baker, for plaintiff, relied upon Jones v. Buck, 54 Me. 301.

W. H. McCrillis, for defendant, contended that, although Jones v. Buck stated the law correctly on the facts assumed, the decision did not bind McNarrin, because the facts in that case were not correctly stated, the description in the levy as recorded in the registry of deeds applying to 29 as well as to 32, and the declaration in that case, following in terms the erroneous description of the levy, did not remove the ambiguity; that while both the registry and the lis pendens gave his client constructive notice as to lot 29, neither of them gave him such notice as to lot 32.

PETERS, J. No denial is made, that on July 23, 1864, Moses Buck, by deed of warranty and for a full consideration, conveyed lot 70 in Upper Stillwater to a person, under whom the defendant now holds possession of the same. Lot 70, by Howard's plan, includes what was 32 by Treat's plan of the same premises.

The demandant claims to be entitled to lot 32, by virtue of a levy made by him against Moses Buck, on June 9, 1862, prior in

Jones v. McNarrin.

time to the defendant's title. The levy describes the land taken, "as the estate in fee simple, in severalty, and in possession of Moses Buck, the metes and bounds whereof are as follows: Commencing at the south-east corner of lot No. 29, according to Treat's plan, at Upper Stillwater in Oldtown;" and the balance of the description consists in a specification of full metes and bounds.

It appears clearly, by the evidence now reported, that this description would identify a part of lot 32 on Treat's plan as well as it does a part of lot 29 on that plan, provided the number 32 should be inserted in the description instead of the number 29. With the exception of the starting point, the language delineating the boundaries of either lot may very correctly be identically the same. Both lots (29 and 32) at the date of the levy were owned in fee simple, in severalty, and in possession by the execution debtor, Buck. The defendant does not admit the coincidence of description to be as perfect as we state it, but as the descriptions, excepting the number of lot, are, at least, substantially alike, for the purpose of this discussion we will regard them, with the exceptions stated, as if they did exactly correspond.

It is, however, suggested that the testimony of Buck, which establishes the identity of the two descriptions, may be disregarded as conflicting with statements made by him at a former trial. There is no absolute contradiction. At the former trial he testified in these words: "The description in the levy describes the house on 32 except the number of the lot." He says the same now. He did not say at the former trial that the same language was not descriptive of 29 as well as applicable to 32. David Norton at the former trial testified that the declaration in the writ covered the description of lot 29, and Buck nowhere denied it. Buck's point evidently was, that the levy was designed to be upon 32, and was void for misdescription. But if it were otherwise, Buck's present testimony cannot be contradicted in this way, the report of the former trial coming in, as it did, under positive objection. Frye v. Gragg, 35 Me. 29.

The demandant claims that, as matter of fact, the appraisal was made of a part of lot 32 and not of a part of 29, and the levy was intended to embrace a part of the former and not of the latter lot. The first question is, whether, from the facts properly in proof, a subsequent purchaser can be charged with notice that 32 was

Jones v. McNarrin.

levied upon, by the recitals in the extent recorded in the registry of deeds. We think not. The registry is silent as to 32. It expressly informs the world that only 29 was taken. By none of the tests of interpretation could it be otherwise. In Birdsall v. Russell, 29 N. Y. 220 250, the doctrine is enunciated in these words: "The rights of a purchaser are not to be affected by constructive notice, unless it clearly appears that the inquiry suggested by the facts disclosed at the time of the purchase would, if fairly pursued, result in the discovery of the defect existing but hidden at the time. There must appear to be, in the nature of the case, such a connection between the facts discovered and the further facts to be discovered, that the former may be said to furnish a clue - a reasonable and natural clue to the latter." Apply the severe rule laid down by Lord HARDWICKE, in Smith v. Low, 1 Atk. 489, and followed ever since, as the rule of constructive notice in equity, that what is sufficient to put the party on inquiry is good notice. What in this case could lead a purchaser to inquire beyond the facts so clearly declared in the record? He desires to see if 32 is clear of incumbrance. In his examination he finds that 29 has been levied upon. He ascertains that Buck owned 29 as well as 32. He finds no incumbrancer in the actual possession of 32. The record informs him that the land taken has certain definite boundaries. He finds them exactly fitted to lot 29, and demonstrating it perfectly. He finds every call exactly answered. He finds 29 included and 32 excluded by the description. Nothing in the registry warns him that he is at any risk or peril in taking the deed. If there had been any uncertainty in the description, he should have made further inquiry; but he finds a certainty of description. If the description had been a general one, he should have investigated until he ascertained to what it applied. But he finds it in all respects particular. The position of the demandant is, that the number 29 may be rejected as false demonstration. It cannot be. It is not a false, nor impossible, nor inconsistent call. If it had been, the purchaser should have translated the difficulty somehow. But it was neither, and so far from it, that it comported exactly with the rest of the description. It was in truth the vital and indispensable point of the description. The rule that one call may be rejected never applies where the description includes several particulars, all of which are necessary to ascertain the estate to be conveyed. Herrick v. Hopkins, 23 Me. 217. This is a doctrine that prevails