
    *Curtis v. Lunn Executor of Jones.
    Decided, Dec. 12th, 1817.
    i. Purchasers — Notice.—A derivative purchaser with notice, is protected by the want of notice in him under whom he claims.— See Lacy and others v. Wilson, 4 Munf. 313. S. P.
    a. Same — Same—Postponement in Equity — Ground Thereior. — The ground on which an original purchaser with notice, is postponed in equity, is, that the taking the legal estate, after notice of a prior purchase or equity, makes the party a mala fide purchaser, and amounts to a fraud. In order to fix this fraud, however, the proof of notice must he clear. If it he merely doubtful, a presumption of fraud will not take place.
    This was a suit brought in March 1809 in the Superior Court of Chancery for the Richmond District, but afterwards (by virtue of the Act of Assembly) transferred to that of Fredericksburg; in which, originally, Eewis Lunn executor of Thomas Jones deceased was plaintiff, and Isaac Jones (a son of the decedent) was alone defendant. It’s object was, to recover possession of a bond executed by the defendant to the decedent in his life-time, for the purchase money of a tract of land, sold and conveyed by the said decedent, of which bond (it was alledged in the Bill) the defendant had improperly obtained possession ; and to subject the land to be sold for payment thereof, upon the ground'that, at the time of the bargain, it was agreed between the parties, that Isaac Jones the purchaser should execute to Thomas Jones the Vendor a mortgage of the land to secure the purchase money.
    In June 1811, the plaintiff filed an amended Bill, stating that, after the conveyance from Thomas Jones to Isaac the said Isaac conveyed the same land in trust to Charles Julian and Joel Mason ; and, after the institution of this suit, the said trustees sold and conveyed the same to George Curtis, who had full notice of the pendency of the suit; that the said deed of trust was made to indemnify Enoch Mason against certain debts mentioned therein, for which he was Isaac -Jones’s surety; that Enoch Mason, when he procured the said Deed, had full notice of the equitable lien in favour of the plaintiff’s testator on the said land ; and the trustees, also, had a like notice; and that the said Deed was executed without the privity or consent of the creditors mentioned therein, who received their debts from the said Enoch, and not from the proceeds of the sale of said land. Enoch Mason, together with the Creditors and trustees, and Curtis the purchaser of the land, were therefore made defendants to the amended Bill.
    ■Upon the Answers, Exhibits and Depositions, the substance of the case appeared to be, that, on the same evening in which the conveyance from Thomas Jones, and *'bond from Isaac Jones, were, executed, Thomas Jones (after the business had been concluded,) observed to Isaac that he ought to give him a mortgage to secure the payment of the money; to which Isaac assented; that Thomas then applied to Enoch Mason to draw said Mortgage; but it being then night, and he having to ride fourteen miles to his home, he declined writing it at that time, but promised to do so at a future day; that, some time afterwards, Enoch Mason, recollecting his promise, requested Thomas Jones the younger (another son of the said Thomas the elder) to obtain from his father a transcript of the bond, to enable him the said Enoch to draw the said Mortgage with accuracy; but upon Thomas Jones the younger’s applying for that purpose, the old man seemed offended, and did not furnish the transcript. The Deed of Trust to indemnify Enoch Mason was afterwards executed, on the 6th of March 1807, without the privity of the creditors whose names were mentioned therein ; and it did not appear that the trustees had any knowledge of the agreement concerning the proposed mortgage.
    At the sale of the land, under the deed of trust, Curtis the purchaser was informed by the plaintiff, that a suit was pending in the Richmond Chancery Court respecting the land, the particular object of which suit was not explained; but, being repeatedly assured by Enoch Mason that the title of Isaac Jones to the land was unquestionably good, he became the highest bidder, and paid his money according to the terms of the sale; but at what time, (whether before or after the filing of the amended Bill,) did not appear.
    By a written agreement, dated January 3d, 1814, Isaac Jones consented that a decree should be entered in the plaintiff’s favour for the debt, and that the land (so far as he was interested in it,) should be subjected to the payment of the same.
    Chancellor Nelson made a decree, that, unless the defendant Isaac Jones, or some one of the defendants claiming under him, should pay the debt with interest and costs, within a given time, the land, (after being duly advertised,) should be sold to the highest bidder, for *cash, by Commissioners, who, after defraying the expenses attending the execution of the Decree, were to pay to the plaintiff the debt with interest, .and to the defendant Curtis, the surplus, if any.
    From this decree, Curtis appealed.
    Briggs and Wickham for the appellant.
    Green for the appellee.
    
      
       Purchasers — Notice.—An assignee of a bond taken in payment of purchase money of land, although he may have notice of fraud in the sale of the land, cannot be placed in a worse condition than his assignor, the vendor, with reference to the payment of such purchase money. Highland v. Highland, 5 W. Va. 63, 68. citing the principal case. The principal case is also cited in Smith v. Nicholas, 8 Leigh 351.
    
   December 12th, 1817,

JUDGE ROANE

pronounced the Court’s opinion.

The Court (not deciding whether the appellant, at the time he purchased the land in Controversy, had such notice of the equity now set up against it, as would have postponed him had he been the” first or original purchaser) is of opinion that he is protected in his said purchase, if those from whom he claims had no such notice. While a derivative purchaser, with notice, is protected by the want of notice in him from whom he claims; it is important to ascertain the ground on which the original purchaser is himself postponed in Equity. That ground is, that the taking the legal estate, after notice of a prior purchase, or Equity, makes the party a mala fide purchaser, and amounts to a fraud. In order to fix this fraud, however, the proof of notice must' be clear. If it be merely doubtful, a presumption of fraud will not be made. In the case before us, there is no pretence that any of the purchasers in the trust deed, except Enoch Mason, had any notice of the Equity now in question. —He, it is ttue, vías privy to the agreement to give a mortgage upon the land to Thomas Jones the testator; and, if the case had rested there, that was such a circumstance as ought to have prevented his making the purchase; and, as he was probably the agent of the other purchasers, might also have affected them: but it is stated in Mason’s answer, and proved by Thomas Jones the younger, that, upon his applying to his father, on behalf of Mason, for the necessary extracts to enable him to write the mortgage, they were not only refused, but. his father was also irritited at the request; and that these circumstances were communicated by him to Mason. — This information was well calculated, added to other Circumstances appearing in the cause, to shew a waiver by Thomas Jones, of his claim to a mortgage: and, thereafter, it was not fraudulent, or improper in the said Mason to make the purchase.

The opinion of the Court is, therefore, that so much of the decree, as sets aside the appellant’s purchase and decrees the land to be sold, is erroneous and ought to be reversed. And, in as much as the ap-pellee Isaac Jones has admitted the whole debt, arid has agreed, by an exhibit among the proceedings, that the said land, so far as he is interested in it, might be subjected to the payment of the present debt, the decree ought to be extended to the said Isaac Jones, and be so modelled as to give the appellee the benefit of such part of the purchase money as was in the hands of the appellant at the time of exhibiting the amended bill.

The decree is therefore reversed with costs, so far as it conflicts with this opinion, and affirmed for the residue, and the cause is remanded to be further proceeded in, and reformed, pursuant to the principles now stated.  