notice is enough; and in Pennsylvania it is decided that open and notorious possession (which can operate only as constructive notice if the subsequent grantee is, in fact, ignorant of such possession) is sufficient notice of an unrecorded deed.1 But even in these States the decisions upon this point have not been uniform; while in many other States of the Union a contrary doctrine has been held. It is, therefore, impossible to say that any uniform rule upon the subject exists on this side of the Atlantic. In some States, as in Maine and Massachusetts, actual notice is required by statute.* 274. Before leaving the subject of notice it will be desirable to say a few words upon the doctrine of lis pendens, which may be conveniently adverted to in this connection, although, as will be seen presently, the doctrine is one which does not, strictly speaking, rest upon the general subject of notice. The doctrine of lis pendens is one by which a suit in chancery duly prosecuted in good faith, and followed by a decree, is constructive notice, to every person who acquires from a defendant pendente lite an interest in the subject matter of the litigation, of the legal and equitable rights of the plaintiff, as charged in the bill and established by the decree. It is a doctrine of courts of equity of ancient origin; and in this country is founded on Chancellor Kent's opinion, in Murray v. Ballou, decided in 1815.7 It is based upon the theory that legal proceedings during their Tuttle v. Jackson, 6 Wend. 213; Price v. McDonald, 1 Maryl. R. 414; Krider v. Lafferty, 1 Whart. 303; Randall v. Silverthorn, 4 Barr, 173; Patton v. The Borough, 4 Wright, 206; and in California, see Mahoney v. Middleton, 41 Cal. 41. Possession was also held to be notice in Webster v. Maddox, 6 Maine, 256; Buck v. Holloway, 2 J. J. Marsh. 178; Hopkins v. Garrard, 7 B. Mon. 312; Colby v. Kenniston, 4 N. Hamp. 262; Morrison v. Kelly, 22 Ill. 610; Landes v. Brant, 10 Howard, 348; Talbert v. Singleton, 42 Cal. 390. 2 Scott v. Gallagher, 14 Serg. & R. 333; Boggs v. Varner, 6 Watts & Serg. 469; Dey v. Dunham, 2 Johns. Ch. 182; Ohio Ins. Co. v. Ross, 2 Maryl. Ch. Dec. 35; 3 Harris v. Arnold, 1 R. Island, 125; Norcross v. Widgery, 2 Mass. 509; Bush v. Golden, 17 Conn. 594; Frothingham v. Stacker, 11 Mis. 77; Fleming v. Burgin, 2 Ired. Eq. 584; Flagg v. Mann, 2 Sumn. 491. See Glass v. Hulbert, 102 Mass. 34; Boggs v. Anderson, 50 Maine, 161; 2 Sug. V. and P. 545, note (8th Am. ed.). 5 Haughwout v. Murphy, 7 C. E. Green, 531, 544. 6 See Sorrell v. Carpenter, 2 P. Wms. 482; 2 Sug. V. and P. 533, note (8th Am. ed.). 7 1 Johns. Ch. 566. continuance are publicly known throughout the realm;1 and while in some few cases in this country it has been rejected, it has been very generally adopted throughout the United States, both in courts of law and in those of equity.3 The principal qualifications of this doctrine are that the specific property must be pointed out and sufficiently described by the proceedings; that it is notice only in relation to that property; and that it applies only to purchasers from a party to the suit of the thing in controversy, and has no application to a third person whose interest subsisted before the suit was commenced, but was of a contingent and conditional character." The doctrine of lis pendens had formerly been regarded as depending upon the general doctrine of notice; but in Bellamy v. Sabine, the subject was elaborately examined by the English court of appeals in chancery, and the conclusion reached that the true theory of lis pendens is that it proceeds from the general rule which forbids alienation of contested property pending litigation. The reason of the rule is the necessity for putting an end to litigation, which would become interminable if the subject matter thereof could be transferred, as often as the parties chose, from time to time. This view of the doctrine has been adopted in New Jersey." 275. It has been already explained that the only persons who are entitled to avail themselves of want of notice as a defence are bona fide purchasers for a valuable consideration. Adams's Doct. of Eq. 157. 2 Newman v. Chapman, 2 Rand. 93; City Council v. Page, Spear's Eq. 159. See King v. Bill, 28 Conn. 593. 3 Murray v. Lylburn, 2 Johns. Ch. 441; Watlington v. Howley, 1 Desaus. 167; Owings v. Myers, 3 Bibb, 279; Wickliffe v. Breckenridge, 1 Bush, 427; Chaudron v. Magee, 8 Alab. 570; Tongue v. Morton, 6 Har. & Johns. 21; Green v. White, 7 Blackf. 242; Haven v. Adams, 8 Allen, 363; Baird v. Baird, Phillips (Eq.) 317; Edwards v. Banksmith, 35 Georgia, 213; Parsons v. Hoyt, 24 Iowa, 154; Scarlett v. Gorham, 28 Ill. 319; Jackson v. Warren, 32 Id. 331; Cooley v. Brayton, 16 Iowa, 10; Hurlbutt v. Butenop, 27 Cal. 50. 4 Edmunds v. Crenshaw, 1 McCord Ch. 252; Lewis v. Mew, 1 Strob. Eq. 180; Green v. Slayter, 4 Johns. Ch. 38; Miller v. Sherry, 2 Wallace, 237. 5 Hopkins v. McLaren, 4 Cowen, 678; Clarkson v. Morgan, 6 B. Mon. 441; Parks v. Jackson, 11 Wend. 442; French v. The Loyal Company, 5 Leigh, 627; Diamond v. Lawrence County, 1 Wright (Pa.), 356. 61 De G. & J. 566. 7 Haugwout v. Murphy, 7 C. E. Green, 544. See, also, Newman v. Chapman, 2 Rand, 93, decided by the Court of Appeals in Virginia in 1823. In other words, if a man wishes to hold property as against some other person who has a prior equitable right thereto, he must show that he is, in the first place, a purchaser, as distinguished from a mere volunteer; in the second place, that he is an honest, not a fraudulent purchaser; and lastly, that he has bought for a valuable consideration. On the other hand, a purchaser who possesses these requisites is entitled to protect himself against any discovery in aid of the adverse claim. Ordinarily, as will be seen hereafter, a plaintiff' in equity is entitled to discovery from the defendant-in other words, the latter must answer the bill of the former under oath. But to this general rule there are some exceptions, among them being this-that the defendant is not bound to disclose any imperfection in his title if he has honestly and in good faith paid for the estate in order to make himself the owner of it. The principle of this plea was said by Lord Eldon to be this: "I have honestly and bona fide paid for this estate, in order to make myself the owner of it, and you shall have no information from me as to the perfection or imperfection of my title until you deliver me from the peril in which you state I have placed myself in the article of purchasing bona fide." Such a purchaser, when he has once put in that plea, may be interrogated and tested to any extent, as to the valuable consideration which he has given, in order to show the bona fides or mala fides of his purchase, and also the presence or absence of notice; but when once he has gone though that ordeal successfully, then the court has no jurisdiction whatever to do anything more than to let him depart in possession of the estate, right, or advantage which he has obtained, whatever that may be. In the United States, generally, this position may be assumed by way of answer, instead of plea. 276. It is now settled in England, after some conflict of authority, that the plea of a bonâ fide purchaser for value is available for the protection of an equitable, as well as of a legal title; 1 Wallayn v. Lee, 9 Ves. 24. See Sugden, V. and P., Chap. XXV., where the subject is discussed; Story's Eq. Pleading, 603. 2 Pilcher v. Rawlins, L. R. 7 Ch. App. 269; per Lord Justice James. See, also, Zollman v. Moore, 21 Grat. 329. in other words, that it is not incumbent upon the party who desires to make use of this plea to get in the legal title.1 In the United States there are several authorities that have adopted the rule that a holder of a mere equity cannot use this plea for his protection, apparently upon the ground that the purchaser of an equitable title takes it subject to all prior equities.2 But it is respectfully submitted that this is a misapplication of that maxim; and it is to be presumed that the sounder modern English doctrine will in future be followed.3 A judgment creditor, and a creditor deriving title under levy of execution, are not purchasers in the sense of being entitled to avail themselves of this plea. 277. Under the general doctrine of notice arises the rule that purchasers from a trustee for sale, must see to the application of the purchase-money. It is a general duty of trustees to use the trust property for the purposes of the trust alone; any other use of it is a breach of trust, and is unlawful. It follows, that if trust property is sold, it must be sold for the benefit of the cestui qui trust; in other words, the sale must enure to his advantage, and the proceeds must be applied in accordance with the design of the trust. It follows, moreover, that a disposition of the property for any other consideration than one moving to the trust estate, is a fraud upon the trust; and that no person who acquires the trust property under such circumstances with notice of the trust, can claim to hold it free and discharged from the rights of the cestui qui trust. Equity, for the protection of the interests of the cestui qui Colyer v. Finch, 5 H. L. Cas. 905, where Williams v. Lambe, 3 Bro. C. C. 204, and Collins v. Archer, 1 Russ. & My. 284, were disapproved; and the rule in Wallayn v. Lee, 9 Ves. 24, and Joyce v. De Moleyns, 2 Jon. & Lat. 374, adopted. See, also, Stackhouse v. The Countess of Jersey, 1 John. & H. 721; Att. Gen. v. Wilkins, 17 Beav. 285; Carter v. Carter, 3 K. & J. 917; Pilcher v. Rawlings, L. R. 7 Ch. App. 295; ante, p. 258, note 6. 2 See Snelgrove v. Snelgrove, 4 Desaus. 288; Blake v. Heyward, 1 Bail. Eq. 208; Larrowe v. Beam, 10 Ohio, 498; Jenkins v. Bodley, 1 Sm. & M. Ch. 338; Wailes v. Cooper, 24 Miss. 208; Brown v. Wood, 6 Rich. Eq. 155. See Flagg v. Mann, 2 Sumn. 486. See, also, upon this subject, Sug. V. and P., Ch. XXV., and the notes to Le Neve v. Le Neve, 2 Lead. Cas. Eq. 35. 4 Whitforth v. Guagain, 3 Hare, 416; Hart v. Farmers' Bank, 33 Verm. 252. trust, has engrafted a still further doctrine-which is, that in order to prevent any fraud from being practised upon the rights of the beneficial owner, the purchaser from the trustee shall not hold the property freed from the trust, unless the purchasemoney, after it is paid to the trustee, is duly appropriated by him to the purposes of the trust. This doctrine is known in equity as the duty on the part of the vendee of "seeing to the application of the purchase-money ;" and it may be stated, very generally, in these terms, "that whenever the trust or charge is of a defined or limited nature, the purchaser must himself see that the purchase-money is applied to the proper discharge of the trust; but whenever the trust is of a general or uncertain nature, he need not see to it." Thus, where there was a trust of real estate to pay particular or scheduled debts, the purchaser was bound to see to the application of the purchase-money; if the trust was for the payment of debts generally, the purchaser was not so bound. The reason of this distinction was, that the creator of the general trust must necessarily have intended that the receipt of the trustee should be a sufficient discharge, and that to him alone should be confided the duty and responsibility of a proper disposition of the trust assets. If the author of the trust expressly said in the instrument creating the same, that the receipt of the trustee would be sufficient, the purchaser was not bound to see to the application of the money; and it was considered that the same rule ought to apply when the power to give a sufficient discharge was implied.2 Sales of personal property by executors stand upon the same footing as sales of real estate under a trust to pay debts generally; the purchaser is not bound to see to the application of the money. Indeed, a purchaser of personalty was never bound, as a general rule, to see to the application. 278. Upon the principle stated above, a number of refinements and distinctions were engrafted by the English courts. The doctrine was, however, a harsh one, and caused great in 1 See Clyde v. Simpson, 4 Ohio N. S. 445; Lewin on Trusts (5th ed.), 33; Sug. V. and P. 660, 661; Elliott v. Mer- |