
    *Marshall & al. v. Cross & al.
    September Term. 1875,
    Staunton.
    Contracts for Sale of Land—Unrecorded—Priority.— In August 1887 M sold to C a tra ct of land for $5,500, on credits extending to 1870, for which M had not obtained the title, and $2,100 was to be retained until the death of F upon the payment of the interest. O paid in cash $500, and of the payment of $1,000 due the 1st of March 1868, O paid in July $425. M obtained a deed for the land on the 5th of May 1868, and on the same day conveyed it to W in trust to secure the amount due F’s heirs. This debt falling due in 1869, W advertised and sold the land to J for $4,238, one-third cash, and the balance in one and two years; and in March 1870 J was put in possession, and complied with the terms of sale. On the 28th of April 1870 M assigned to T, trustee in a deed from M to secure debts he owed J, the balance of the purchase money, after the payment of the debt to F’s heirs, for the purpose of his trust; and on the 2d of May W, the trustee, acknowledged notice of the assignment. On the 9th of September 1870 M and O had a settlement, when by writing under seal M acknowledged he owed O $778.36, on account of G’s payments on the land. C flies his bill against M, J and W. to subject the balance of put-chase money in W’s hands after satisfying the trust in favor of F’s heirs; and J and W answer denying all notice, actual or constructive, of C’s contract or claim. Helo: O not having had his contract with M for the purchase of the land recorded, and J and M denying all notice, actual or constructive, of G’s contract or claim, J’s right to the surplus of the trust fund in the hands of W is superior to that of C.
    Some time before December 1860, Dr. H. H. McGuire purchased a tract of land of about one hundred and seventy acres, lying in the county of Clarke, of one or more of the heirs of David Funsten, deceased. He seems to have paid the purchase money, except a sum retained to meet the dower interest of Mrs. Funsten *in the land. In December 1860 he sold the land to Isaac Pidgeon, for twenty-five dollars per acre, in payments bearing interest, of $600 a year for five years, and the balance of the purchase money to be divided into five annual payments, to commence when the first five ended; and a deed was to be executed when the purchase money was paid. Pidgeon was put into possession of the land in January 1861, and executed his notes for the several payments, and in January 1862 he paid off the first note. He continued in possession of the land by himself, or those claiming under him, down to 1865, without making any further payment. In September 1865 Dr. McGuire gave a written notice to Pidgeon that if his notes then due were not paid in ninety days he would proceed to take possession of the farm; and he seems to have done it.
    In August 1867 Dr. McGuire entered into a written contract with J. Iy. Cross to sell to him the land for the sum of $5,500, payable $500 in cash, $1,000 on the 1st of March 1868, $500 on the 1st of September 1868, with interest from the 1st of March 1868, $500 on the 1st of March 1869, with like interest, and $500 on the 1st of September 1869, with like interest, and $400 on the 1st of March 1870, with like interest, and $2,100 to be retained as a lien on the land for and during the life of Mrs. Funsten, widow of David Funsten, deceased, on which interest was to be paid annually, on the 1st of January during her life, and at her death to be paid in two instalments to the heirs of David Funsten; all of which deferred payments were to be secured by deed of trust on the land when the deed conveying the same was made to Cross.
    In March 1868 Cross was put in possession of the land, which was occupied by his father and his family, he, himself, living in Florida, where he was a professor *in a school. He paid the cash payment of $500, and in July 1868 he paid $425.
    It seems that Dr. McGuire did not receive a deed conveying him the land from the heirs of David Funsten until the 5th of May 1868, and on the same day he conveyed the same to George W. Ward in trust to secure the payment of the sum of $1,265.45, with interest from the 30th of August 1856, to the heirs of David Funsten; and it was provided that if the said McGuire did not pay this debt and interest within six months after demand made, Ward, the trustee, should proceed to sell the land at public auction, and out of the proceeds pay the debt and expenses, and the remainder pay over to H. H. McGuire.
    Dr. McGuire not having paid the debt when demanded, Ward proceeded to sell the land on the premises, when it was purchased by James Marshall, who complied with the terms of the sale, and was put into possession of the land.
    In November 1868 Isaac Pidgeon filed his bill in the Circuit court of Clarke county, which was afterwards removed to the Circuit court of Frederick, in which he set out his purchase of the land from Dr. McGuire, and his payment of $636 of the purchase money, the taking possession of the land by Dr. McGuire in 1865, and his sale to Cross; and he insisted that he was entitled, if Cross took the land, to have the difference between what he was to pay and what Cross was to pay for the land, or to have the land himself, and to pay the balance of the purchase money which he owed. And, making Dr. McGuire and Cross defendants, he prayed that he might have what he had insisted on, and for general relief.
    In June 1870 Pidgeon amended his bill, and made George W. Ward and James Marshall defendants; ^stated the sale by Ward to Marshall, and charged that they had actual or constructive notice of his equitable lien; or, if the sale and purchase was lawful, he was entitled to be paid his claim out of the funds in their hands.
    Cross answered the original and amended bill. He set out his purchase of the land in 1867 from Dr. McGuire, and his payments of $500 and $425; and having been deprived of his farm, fairly purchased, he prays that Ward, the trustee, and Marshall, the purchaser, may be required to repay him out of the purchase money of the land, after discharging the debt to Mrs. Funsten, the amount he had paid McGuire. He filed with his answer a paper under seal, executed by Dr. McGuire, dated the 9th of September 1870, by which McGuire acknowledged that, upon settlement, he owed Cross $778.36.
    Marshall and Ward answered. Marshall said he purchased the land at the sale made by Ward; paid the cash ,payment of $1,412.65, and gave his bonds for the deferred payments, and was put in possession of the land; and he avers that he had no-actual notice of the plaintiff’s equity, nor, so far as he knows or believes, was there-any constructive notice affecting him at the date of said purchase.
    Ward states his sale of the land to Marshall under the deed of trust for $4,238, of which one-third was paid in cash, and the balance was to be on a credit of one and two-years. And he says that Dr. McGuire on the 28th of April 1870 assigned to Hdward M. Tilball, in trust to secure certain debts due to James Marshall and W. D. McGuire by said DN McGuire, the balance due to him, after payment of his liability under the aforesaid deed of trust; notice of which assignment was accepted by him (Ward) on the 2d of May 1870. *And he' exhibits the assignment. He denies having actual notice of the plaintiff’s equitable lien as charged in the bill; and says he did not know the plaintiff had filed his bill until January 1871.
    A number of witnesses were examined in the case, an account of the claim of the plaintiff was taken, to which there were various exceptions, and the cause came on to be heard, when the court refused to confirm the report, and making a statement of Pidgeon’s claim, rendered a decree in his favor for $346.97, with interest from the 1st of April 1865, and in favor of Cross for $778.36, with interest from the 9th of September 1870; and it appearing that the fund had been paid under a previous order in the cause, to the general receiver of the court, he was directed to pay first to Pidg'eon the amount due to Pidgeon, and then to Cross the amount due to him. From this decree Marshall obtained an appeal to this court; and in October 1873 it was reversed. And the court says the bill of Pidgeon should have been dismissed; but they send the cause back with leave to Cross to file a cross-bill, for the purpose of litigating between himself and Marshall, his co-defendant, their respective equities, and their priorities with respect to the said tract of land sold by McGuire to Cross, and afterwards purchased by ■ Marshall at the sale made by Ward, trustee.
    When the cause went back Cross filed his cross-bill. He set out his purchase of the land from Dr. McGuire, and his payments as before stated. That he purchased the farm as a home for his father. He says he lived in Florida, and only returned to Virginia during his vacations in the summer. That in the summer of 1868, and after he had paid $425 to Dr. McGuire, he heard of the claim of Pidgeon, which alarmed him. He was very poor, his only means being his salary as *professor. He was purchasing the farm as a home for his father, and he was much disturbed at the prospect of being disappointed, as well as suffering pecuniary loss. Nothing however was done whilst he was here. That he returned to Florida, and did not come back until July 1869. In the meantime Dr. McGuire had gotten his title through the Circuit court of Clarke county; but he had gotten it with a deed of trust for the benefit of Mrs. Funsten, which could be closed at any time, not only necessitating him, Cross, to pay the debt long prior to the terms of the agreement with Dr. McGuire, but changing the whole character of the agreement itself, by reason of that debt being larger than was then supposed. Moreover Gardiner, a purchaser of twenty-two acres of the land from Pidgeon, was still upon it, and Pidgeon still asserted his claim. Under these circumstances he was afraid to pay any more money. So matters rested; and when he returned again to Virginia, in July 1870, he found that the land -had been sold by Ward, trustee, for the benefit of Mrs. Funsten.
    He further says, he is informed and verily believes, that it never was the intention of Dr. McGuire to assign to Mr. Marshall, &c., anything more than the surplus (which is a considerable amount) of the fund arising from the land sold by the trustee, Ward, over and above what was required to satisfy the Funsten lien and also plaintiff’s just claim to have refunded to him the amount paid on his purchase from Dr. McGuire; and this, he insists, abundantly appears from the face of the assignment itself, considered in connection with the facts of the case, especially the adjustment and settlement between Dr. McGuire and the plaintiff of the exact balance due to the plaintiff of the date September 9th, 1870. But however this may ^be, he contends that such a simple and indefinite assignment (and that too in trust, without the instrument having been recorded) cannot be made superior to plaintiffs’ paramount claim and lien upon the surplus fund in the hands, or rather to come into the hands, of the trustee under the Funsten lien. And making Dr. McGuire, James Marshall, Titball, trustee in the alleged assignment, and Ward, defendants, he prays that he may have a decree for the amount of his claim, as ascertained in the cause, out of the trust fund now under the control of the court, and for general relief.
    Marshall answered the cross-bill. He referred to the record in the original case of Pidgeon v. McGuire, especially to the answer of Ward and his own, and to the assignment by McGuire to Titball. He says, he knows nothing in the world of the matters alleged in the bill, whether correct or not, and he therefore calls for full proof of each and every allegation of fact therein made. He avers that he became the purchaser of the land referred to at a sale by G. W. Ward, trustee in a deed of trust from Dr. McGuire, a copy of which he files. That the records of Clarke county disclosed the fact, that Dr. McGuire had acquired the legal title to the land only on the day this deed was made by him. He denies that he had any actual notice of any prior equities in or to said land or its proceeds; and he does not believe he had any constructive notice of such equity. The deed of trust provides that any residue, after the debts secured, shall be paid over to said Dr. McGuire; of this residue respondent, after his purchase, took in good faith and innocence the assignment before referred to. Certainly respondent knew nothing of the alleged claim of Mr. Cross: the records of Clarke county furnished *no notice; the trustee, George W. Ward, knew nothing of it, as would appear from his acknowledgment of notice 'of the assignment.
    Ward was examined as a witness. He says, the debt for which the trust was executed became due and was not paid; and he advertised the property to be sold, the first time, he thinks, in September 1869, to be sold on the premises. He went to the place of sale, and found Mr. James Cross there, and also his son, as he supposed, in possession of the property. The property was not sold, for want of bidders. He afterwards advertised the property to be sold in October 1869, he thinks, at which time a sale was made to Dr. William McGuire, who bought for James Marshall. He went to Winchester, and Mr. Marshall would not comply with the terms of sale,, pay the cash payment, until witness gave him possession. Witness saw Mr. James Cross, and asked him to give possession, which he declined doing; and witness instituted proceedings in Clarke county, where the land lies, to turn him off. After some one or two months, witness found that they claimed that the suit had been improperly brought, and the proceedings had to be renewed ; and about the last of March or first of April 1870 possession was given him, and Mr. Marshall complied with the terms of sale and took possession.
    The cause came on to be heard on the 13th of November 1874 ; when the court held that Cross was entitled to receive, out of the fund in the hands of the receiver of the court, the sum of $778.36, with interest thereon from the 9th of September 1870, and his costs; and the receiver was directed to pay to him that amount, and to pay the residue of the fund to Titball, trustee under the assignment in trust of April 28th, 1870, for the benefit of James Marshall, &c. *And from this decree Marshall applied to this court for an appeal; which was allowed.
    Holmes Conrad, for the apnellant.
    Holliday and Andrew Hunter, for the appellee.
    
      
      Unrecorded Contracts for Sale of Land.—See March, Price & Co. v. Chambers et al., 30 Gratt. 299. and note. collecting cases; also Eidson v. Huff, 29 Gratt. 338. The present Virginia statute, V. C., § 2465 is identical with that of 1873 on this subject, hence these cases are still authority.
    
   Anderson, J.

delivered the opinion of’the court.

The question is, in this case, whether James Marshall, the appellant, or J. T. Cross, the appellee, is entitled to a certain fund in the hands of George W. Ward, the trustee of Dr. H. H. McGuire. The fund consists of the balance of the proceeds of the sale of a tract of land, which was made by the trustee, Ward, under a deed of trust to him by Dr. McGuire, after satisfying the balance of purchase money due upon it to the widow and heirs of David Funsten, deceased.

The land was first offered for sale in September 1869. The trustee says he went to the place of sale, and found Mr. James Cross there, and also his son in possession. It was put up, but not sold for want of bidders. It was sold in October following, and was bought by Dr. William McGuire for James Marshall for the price of $4,238. It does not appear that the sale was objected to, or any claim of right made to the property by the appellee, James D. Cross, or his father, either in October 1869, when it was sold, or in September when it was put up, but not sold for want of bidders, though both the father and the son were present when it was first offered. If the appellee had any claim at that time to the property, the presumption is he would have asserted it, or would have forbidden the sale. There is no proof that he did either. If he had done so, it was easy for him to have proved it. He took the deposition of his father; but not a syllable of such notice or demand does he prove by him. Nor *does he even allege it in his answer to the original bill or in his cross-bill. He made no attempt to prove it by Ward, though he was represented by counsel when his deposition was given. No inquiry was made of him if such were the fact. It must be presumed that such was not the fact, or the inquiry would have been made. And it is not easy to reconcile the conduct of the appellee, except with the abandonment of his contract and all claim upon the land. And this is not improbable.

His contract was a bad one for him. He was to pay for the land $5,500, with interest on deferred payments from 1st of March 1868—a great deal more than it had sold for before to Pidgeon, or afterwards to Marshall. And it was an injudicious contract for him, because he was evidently unable to fulfil it. He was in default in meeting the very first deferred instalment of purchase money, of $1,000, due March 1st, 1868; of which he paid only $425; and that not until the 15th of July 1868. Interest was accumulating on that instalment; another was due in seven or eight months, with accruing interest from the 1st of March 1868; and another the year following; and so on. And he might very soon be called on to pay the whole amount due the widow and heirs of David Funsten, deceased, which amounted, with interest to April 6th, 1870, to $2,321.47; and his only resource for making payments was what he could save from his salary as a teacher; as he tells us himself, he was very poor. He had evidently assumed obligations which he was unable to discharge. He was involved in an onerous contract, which he could not fulfil, and from which it would be to his advantage to be released. If it had been in the power of McGuire to have fulfilled it, and to have made him a good title, it is evident he could not have ^fulfilled it on his part. He had already failed to make, as we have seen, the very first deferred paj’-ment. He had evidently undertaken more than he could accomplish, and if held to his contract, it would in all probability have involved him in inextricable ruin. He had agreed to give for the land twelve hundred and sixty-two dollars more, with interest on the deferred payments, than could afterwards be got for it in open market on terms of one-third in cash, and the residue in two equal annual instalments, without interest, when it was purchased by Marshall. If he had been held to his contract it is more than probable that he could not have met his payments, and the land would have been forced to sale, and it is not reasonable to suppose would have brought more than it sold for to Marshall, in which event his loss would have been $1,262, with an accumulation of interest. It was most probably to his advantage, that McGuire was not in condition to insist upon the execution of the contract on his part. And if he had been, it would have been better for Cross, if necessary in order to be released from the contract, to have surrendered the $778.36 which he claims to be the amount due from McGuire on account of the purchase money he had paid, than to have gone on with the contract. It is not surprising, therefore, that he did not insist upon his contract, and object to the sale when it was made under the deed of trust.

But why did he not demand that he should be refunded what he had paid for the land out of the proceeds of the sale after the Funsten debt was satisfied? There is no proof, as we have seen, that he asserted any such claim at the time of sale. The presumption is he did not. That was the time for him to have asserted it if he ever intended to make such claim. The deed of trust was executed on the 5th of May 1868, *and admitted to record in Clarke county on the 22nd of June following. By its terms it requires the trustee after satisfying the Funsten debt and expenses of sale, &c., to pay the remainder to McGuire. Cross must be presumed to 'have notice of that deed, it being of record. And the land was put up to sale under it, in his presence in September 1869, more than a year after its recordation. If he intended to assert a lien on the land or the proceeds of the sale, for what was due him from McGuire, he surely would then have notified the trustee.of his claim.

And if, against his own interest, under the circumstances which I have detailed, he intended to insist upon his contract, or to hold the land bound for the purchase money he had paid, why did he not have his contract with McGuire recorded? He must be presumed to have known the law, that any contract made in respect to real estate, &c., shall be as valid, as against creditors and purchasers, from the time it is recorded, as if it were a deed conveying the estate or interest in the contract—Code of 1873, p. 897, § 4; and that by $ 5, ‘ ‘Every such contract, ” &c., “shall be void as to creditors and subsequent purchasers for valuable consideration without notice, until and except from the time that it is duly admitted to record,” &c. Mr. Cross must be presumed to have known the law, and all other persons are justified in dealing with the subject under such presumption. If upon searching the records, they find no evidence of such equity, they have a right to presume that there is none, if otherwise without notice of its existence. If Mr. Cross intended to insist upon his contract, or to hold the land bound for the money he had paid on it why did not he have the contract recorded? It would have been in ample time if it had been recorded when the land was offered *for sale in September or October, 1869, or any time before the purchase was confirmed by Marshall in the spring of 1870. That would have been notice to all the world. It would have been notice to the purchaser, and the land, or the proceeds of the sale, in the purchaser’s hands, would have been bound for his claim.

That he did not forbid the sale, or notify the trustee of his claim upon the land, or notify James Marshall, the purchaser, that he held this claim on the land, or have his written contract for the purchase recorded, can only be accounted for, it seems to me, upon the ground, that he had determined at that time, to abandon his contract, and all claim upon the land, and look to McGuire personally (in whom it appears from his cross-bill, he not only reposed confidence, but of whom he had a very exalted opinion), to refund the purchase money he had paid. Could he thus remain silent, and allow Marshall to purchase, and pay for the land, and then hold him liable for the claim which he had upon Dr. McGuire? A person who, having an interest or claim upon property, stands by and sees another sell it as his own, without objection, will not be allowed afterwards to assert his title. His silence, when in good conscience he ought to speak, shall close his mouth when he would speak (2 Sugd. Vend, with American notes, chap. 23, g 1, p. 507; 8 Amer. ed. note u, citing numerous cases).

In his answer to the original bill, which was sworn to on the 30th of July, 1870, but not filed until the October term of that year, whilst he recognizes his loss of the farm, he prays that the trustee Ward may be ordered to refund to him the purchase money he had paid on the land with interest, after discharging the Eunsten debt; or that James Marshall who was the *purchaser should pay it. But this was after Marshall had paid the whole purchase money; or at least after McGuire, who, as we have seen, was entitled to the residue of the proceeds of sale after satisfying the Eunsten debt, &c., had assigned it for the benefit of Marshall and another, by deed of assignment, bearing date April 28, 1870, of which the trustee had been duly notified. This assignment was perfected three months prior to the date of Cross’ answer, and nearly six months before it was filed—and that is the first intimation we have of the claim of Cross to hold the proceeds of the sale liable.

It appears that between the preparation of his answer, and the filing of it in court, he and McGuire had a settlement of this claim, and as auxiliary to it had an arbitration of some matters about which they were not agreed, and that a certificate was given by McGuire under his hand and seal, that he was due him a balance of $778.36, for money advanced on said contract of purchase. This certificate is dated September 9th 1870. But, as we have seen, long before this adjustment and certificate McGuire had assigned for value his whole interest under the deed of trust in the proceeds of the sale made by Ward.

But it is contended that said assignment was made subject to the claim of Cross upon the proceeds of said sale. The assignment is of “any balance due me under deed of trust,” and the trustee Ward is directed to pay to Edward M. Tidball, trustee, any balance due to me after the payment of my liabilities under the trust in which he is trustee. ”

The deed in which Mr. Ward is trustee, conveys the land in question upon trust, to secure the payment of $1,265.45, with legal interest thereon, from the 30th of August 1856 until paid, to O. R. Eunsten and the other *heirs at law of Elizabeth Funsten deceased; being the balance of purchase money for the said tract of land, due from, and unpaid by, the said Hugh H. McGuire, to the said O. R. Eunsten and the other heirs at law as aforesaid, for the use of said David Eunsten’s widow and children. And the trustee, in default of payment, six months after default of payment is made, is upon request, &c., required to make sale, and out of the proceeds “to pay all the necessary expenses, and the said debt and interest, and the remainder to pay over to the said Hugh McGuire.” There is no mention of, nor allusion to any claim of James E. Cross. What was due under that deed of trust to Hugh McGuire, if it was not the balance of the proceeds of sale after satisfying the Eunsten debt and expense of sale, &c. ? Whatever that balance was, whatever McGuire was entitled to demand of the trustee Ward, under the terms of that deed, was transferred and vested by his said deed of assignment, in Tidball trustee, to secure the debts due from the assignee to Marshall, and to certain debts for which said Marshall and William D. McGuire are his endorsers and security. It is very clear that the assignment is not made subject to any claim of Cross against McGuire, and that Ward the trustee, is not authorized by it to pay any part of the fund to James D. Cross.

Nor does the certificate afterwards given by McGuire to Cross purport to be a transfer of any part of the proceeds of said sale to him. He could not have made such a transfer to Cross, as he had about five months before assigned the whole of it for value to other parties. It can only be regarded as his acknowledgment under seal of the amount he owed Cross, and is in effect a personal obligation to pay it. It cannot be regarded as a specific charge upon this fund. *If it could be so treated, it could not avail Mr. Cross, as McGuire had previously parted with his entire interest in the fund, and had nothing in it which he could transfer to Cross, unless Marshall had notice, at the time he confirmed the purchase made for him of the land, or prior to the assignment by McGuire to Tidball for his benefit-—unless, indeed, said assignment was fraudulent and void as to the appellee Cross.

It is not charged by Cross in his answer to the original bill, nor in his cross-bill, that Marshall had notice of his equity at the time he became the purchaser, or when he subsequently took the assignment. The plaintiff in his cross-bill seems to rest his case upon the averment that it never was the intention of McGuire to assign to Marshall anything more than the surplus of the fund arising from the land sold by the trustee Ward, over and above what was required to satisfy the Runsten debt, and also his just claim; and he relies upon the face of the assignment itself, considered in connection with the facts and transactions disclosed in the cause. I have already considered these matters, and have reached the conclusion that no such effect can be given to the deed of assignment, nor to the certificate of September 9th 1870; nor can we find anything in the surrounding circumstances to alter the plain language and meaning of '■those deeds.

But although the fact of notice to the 'subsequent purchaser of a pre-existing 'equity is not alleged in the bill nor put in issue by the pleadings, yet, if it appear that he had notice, it would be incumbent on the court to enforce the prior equitable lien against the legal title. This would seem to be a sequence of the doctrine, that if the bill shows upon its face a prior equity in the plaintiff, which he seeks to enforce as *against a subsequent conveyance, the defendant must deny notice in his answer, if he sets up his legal title against the prior equity, whether notice in the bill is averred or not.

But the circumstance that the plaintiff does not aver in his bill that the defendant had notice of his prior equity, or pretend to rely on it as a ground of relief, but rests his case on an entirely different ground, if it is not an admission that the defendant had no notice, it is strongly corroborative of the denial in the answer, and of the conclusion that he had, when he surrendered the possession, resolved to abandon the land and his contract, and look to McGuire personally for compensation. If so, there is nothing of which to predicate either actual or constructive notice, both of which are denied by the answer.

In relation to the matters alleged by Cross in his answer to the original bill, which he makes a -part of his cross-bill, in which are set out the contract and transactions between him and McGuire, Marshall in his answer declares that he knows nothing in the world, whether correct or not, and denies that he had any notice, actual or constructive, of any prior equity of Cross to the land or its proceeds.

If he looked to the records, as he was at liberty to do, he found a perfect legal title vested in Dr. McGuire, and by him regularly conveyed to Ward the trustee, and no evidence there of a prior equity in anybody, where it ought to be found, if it existed. The land was sold on the premises, Mr. Marshall not present, and was purchased for him: He was informed that James

Cross (the father of the appellee) was in possession. He would naturally inquire, does he claim any title to the property, or right of possession? What would or could have been the trustee’s answer *to the inquiry, but that he made no-claim of right of property or possession? He made no objection to the sale. What did Mr. Marshall then do? Did he confirm the sale? He said to the trustee, you must give me possession before I will confirm the sale. When you give me peaceable possession, I will confirm the sale and pay the purchase money. He was not willing to recognize it as a sale to him until that was done. What further inquiry need he have made, when that was done? No claim of right of property or possession, when the land was offered for sale—no objection made to the sale—and then possession delivered;after the sale, without claim to any portion of the proceeds of sale. There was nothing to suggest to his mind, or to excite a suspicion of a prior equity in Cross. The doctrine, that possession is notice to the world of any claim which he in possession has upon the land, has no-application here; because, when Marshall really became the purchaser, the land was not held in possession by the appellee; and the circumstances under which the sale was made, and the previous possession of the appellee acquired by the trustee, were calculated to lull Marshall into a sense of security, and to repel the idea of a prior equity.

In the light of reason and authority, I do not think the facts in this case show either constructive or actual notice on the part of James Marshall. Courts of equity act upon the conscience. And as it is impossible to attach any demand upon the conscience of a man, who has purchased for a valuable consideration bona fide, and without notice of any claim on the estate, we have high authority for saying he is entitled to the peculiar favor and protection of the courts. (Sugd. Vend. chap. 23, 'i 1, p. 497-8.)

*1 am therefore of opinion to reverse the decree with costs, and to dismiss the plaintiff’s cross-bill.

Christian J. dissented.

The decree was as follows:

This day came again the parties by counsel, and the court having maturely considered the transcript of the record of the decree aforesaid and the arguments of counsel, is of opinion, for reasons stated in writing and filed with the record, that the decree aforesaid is erroneous. It is therefore decreed and ordered that the same be reversed and annulled, and that the appellee, J. L. Cross, do pay to the appellants their costs by them expended in the prosecution of their appeal aforesaid here.

And the court proceeding to pronounce such decree as the said Circuit court ought to have rendered, it is further decreed and ordered, that the cross-bill of the plaintiff J. L. Cross be dismissed, and that the defendants therein recover against the plaintiff their costs by them about their defence in this behalf expended; which is ordered to be certified to the said Circuit court of Frederick county.

Decree reversed.  