
    LODGE against SIMONTON.
    Whatever puts a party upon inquiry amounts to notice,‘provided that inquiry he» came a duty, and would lead to the knowledge of the requisite fact by the exercise of ordinary diligence and understanding.
    Appeal from the Circuit Court of Norihumhp'land county, held by Gibson, Chief Justice.
    
    This was an action of ejectment, in which the heirs of Jonathan Lodge, deceased, were plaintiffs and Robert Simontori, was defendant. '
    Previously to" 1770, Samuel Hunter and Jonathan Lodge, were the owners of three applications for three hundred abres each, in the names of Hunter, Spencer and Popjáy. ■ In that year surveys were made upon these applications, and afterwards re-surveys were made,«and the location'of one or all of them changed, so as that a body of land of twelve hundred’ acres, was included within, ,the surveys. This it appeared was done for the purpose of preventing the location of any other application or warrant upon any part of these twelve hundred acres, so that Hunter and Lodge might appropriate the whole to themselves. In 1773, they obtained a warrant in the name of Gailey for three hundred acres, which was executed in the same year by Charles LuJeens, and located within the bounds of the twelve hundred acres. Another .survey was made upon this warrant in 1790 which located it upon a.different tract of land, but still within the twelve hundred acres. This survey was made by Samuel Hunter’s executors. '
    
      The following diagram exhibits the whole four tracts, and how they were appropriated at different times:
    
      
    
    There was nothing upon the title papers, which show.od that Lodge, had any interest in these lands. - In his life-time, Hunter gave tract marked No. 1, to hie nephew William Wilson, who1 procured it to be re-surveyed as the Spencer tract in 17S7, had it patented and sold it to Simonton the defendant. No. 2.» Hunter also sold in his life-time, to the corporation, “-for the relief of Presbyterian Clergymen.” No. 3, Hunter and Lodge, sold to Dough-erty in 1774. In 1784, Samuel Hunter died, having first made his last will and testament in the same year, which contained this clause. ■
    “And I do hereby order and direct that the plantation and tract sold by Mr. Jonathan Lodge and myself to George Dougherty, that the remainder of the moneys due to me, arising from that sale, be appropriated by my executors to, and for, the payment of my just debts, my share thereof amounting to one hundred pounds after deducting the moneys necessary for patenting the same: and I do further order and direel, that the plantation and tract of land in Turbut township, near to Mr. HeioelVs, taken up by Mr. Lodge 
      and myself, to be sold by my executors, and the sum of £24 3 5. paid by me for warranting the said tract, is to be refunded and paid by Mr. Lodge or. his executors, before he. can, or may be entitled‘to any share or purpart thereof.. A.nd'as to the residue of my estate, both real and personal, I hereby give, devise and bequeath the same to my beloved wife Susannah, ^and my two daughters Nancy and Polly, and to them heirs and assigns forever, as tenants in common.”* ■ • • ’
    
      Hunter’s executors did not sell the tract of land “in Turbut township, near to Mr. Haoctt’s, &c.” ás directed by the will, but the residuary devisees, sold the same to Robert Simonton, the defendant, in 1810.' There was nothing in the.evict etice, which shewed that Simonton had notice of the sales of tracts No. 2 and1 3, having beenmadeby Blunter in his life-time. There, was á great deal of complicated evidence In the cause, but the foregoing statement of facts, will sufficiently, explain the1 only important question which arose, and was decided by the court. Whether or not the will of Samuel Hunter, under which Simonton claimed, and the other circumstances of the case, were notice to him of Lodger's title to one-half of the land in dispute? His honor being of opinion,.that it was, so instructed the jury; who found a verdict accordingly for the plaintiffs. The defendants appealed.
    
      S. Hepburn and Bellas for appellants.
    Thc.opinion of the Supreme Court, heretofore delivered hy Justice Duncan, 
       does not settle'the question, of notice, unless the jury should first find the fact that, the will refers to this tract of land; if it did not, it gave no notice. Upon the three applications, without the payment of purphase money, a'nd contrary to law, four tracts -were surveyed. If, therefore, 'Colonel Hunter clouded the truth, so as that what tract he referred to in his will, was uncertain, it was so uncertain, and made so by himself, that it would not be notice to Simonton, who is therefore an innocent purchaser, without notice. When the will was made, undoubtedly the Gailey warrant was not laid upon the land now in. dispute; suppose,' then, the warrant, and in addition thereto the survey upon it, were recited in full by the will, ■ and Simonton had 1 procured from the office copies of them, and laid them before him; would he not have found •that they had no reference to the land in dispute? • And would not any lawyer have advised him that he might safely buy?
    The law being that constructive notice must be explicit, clear and certain, Heist cry. Fortner, 3 Bin. 40. Billington v.Welsh, 6 Bin, 129, how can the will of Samuel Hunter be construed to be notice to Simonton. But it is said, it was designated as adjoining HeweU’s; so did another of the-four tracts; on which side of HeweU’s did it lie? for two tracts adjoining HeweU’s may be miles apart. It is said, that the fact is, that Hunter, in his lifetime, had sold the Other three tracts; and therefore the will Could referió none but the land in dispute. Is-this argument sound? How,was Simonton to know that he had • sold' the other three tracts? Was'he to .run through the, county to hunt up .notice? Were the deeds upon record? Where was he to go? In fact,.it appeared on the trial, that Colonel Hunter, had given one of them to his nephew, for which he had not made him á deed- at all. Is ■ this the clear, certain, explicit notice which the law of the cases cited requires?
    As between themselves, they i>my call their.survey what they please, and call while-acre black-acre, and black-acre white-acre, so long as it affects no one but themselves; but when one of the co-tenants sells his interest, and a thiid person comes in, either the one co-tenant or the other may suffer the evil consequence of the confusion created by them; but it shall not bo visited upon the innocent purchaser.
    
      Bonnel and Greenough for appellees.
    
      Hunter and Lodge, being the owners of three applications and surveys, and subsequently, of á warrant and survey, it was a matter of no importance to any one, nor is it an important fact to any ques-lion of law, which arises in this.case.. -That they shifted them as to name and location; that they called Spencer Hunter and Hunter Gailey,. and Gailey, Popjay .* they were tenants-in-common. of the whole. ’ As to Simonton this circumstance could have created ho confusion; for'at the time of Hunter’s.death, he had disposed of. three of the tracts, and had but one left, and orié of the three Si-monto'n himself had .purchased. The deed from the devisees of Hunter to Simonton recited the will, and that will gave explicit notice, that Lodge was half owner of. the land in dispute. The will designates the land as warranted, and adjoining Hewett’s; and under this'very Gailey warrant, which was the only warrant ever Colonel Hunter owned, Simonton procured the land in dispute to be patented. • Add to this, that Colonel Hunter owned no olhertract of land at the time of his-death, and what notice could be more certain, than that which the will gave; At all events,' was it not all that the law requires, — that which should put a prudent man upon inquiry as to the title? ■
    Ross, J. — In this case, the third and fourth reasons assigned for a new trial, will only be considered at this time' by the court. ■ The following is the provision in the codicil to-the will of Samuel Hunter, upon which depends the decision of these exceptions:
    *££I do hereby order and direct, that the plantation and tract sold by Jonathan Lodge and myself, to George Dougherty, that the remainder of the moneys due to me arising'from that sale, be appropriated by my executors to and for the payment of my just debts, my share thereof amounting to one hundred pounds, after deducting the moneys necessary for patenting the same. And I do further order arid direct, that the plantation and tract of land in Tur-but township, near to Mr. Hewett’s, taken up by Mr. Lodge and myself, be sold by my executors, and the sum of £24 15. paid by me for warranting the said tract, is to be refunded and paid by Mr. Lodge or his executors, before he can or may be entitled to. any share or purpart thereof.”
    This codicil is dated the 29th of March, 17S4. I cannot perceive-in what respect the. provision in this codicil, hás any’ application to the land in controversy, or how it can.be considered descriptive of' it, so as to amount to a constructive notice to Simonton wA others. It is certainly not such a description, as, if .’contained in a warrant, would locate itself. Would it then, if in a warrant or location, be constructive notice to a subsequent warrantee? The'will describes' it as a plantation and tract of land in Turbut township, near to Heioett’s. But how near to Heiuetf’s? Was it near to Hewett’s on the north, south, east or west? Again, ££it was tallen up by Lodge and myself. ” A ccording to the evidence, there were three other tracts in the immediate vicinity, or adjacent thereto, taken up by Hunter and Lodge, to which the same description would lmvc been' equally appropriate. But further, the'will says, “it was a tract for which Hunter had paid “for warranting 4324,15.” This however, was to be refunded by Lodge, or his executors, before he could be entitled to any share or purpart. theredf. It appears to me, there is nothing in this codicil, from which notice to Simon-ton, that Lodge had an interest in- the particular land in dispute, can be fairly inferred. A history of the transactions; respecting this land, as collected from the evidence and admissions of the parties, relieves, I think, the point from all doubt.
    From this it will appear, that by the shifting of the surveys, and the transposition of the names of those, making the' location, to tracts, different from what they called for by the first set of sdr- , veys, all was not honest and fair, but that the intention was to render the appropriations and surveys so confused, as to place it beyond the power of any bona fide settler to ascertain; vyhether any, and if any, what part of the tract of 1200 acres had not been su'r-r veyed by proper authority, and remained unappropriated. . And in this they succeeded. It was a fraudulent attempt to. exclude all others from the exercise of a legitimate right, to prevent the improvement of the country, and appropriate to themselves that which did not belong to them. To sanction such conductj would be contrary to the soundest principlesuf morality,- and would aid the efforts of unfair practices. - •
    I am unable to find any thing in -the whole transaction, that would make the codicil in ihe will notice to Sirnonlon, that one-half of the tract in question, was owned by Lodge.. There is a difficulty in defining with any degree of precision the rules, which govern implied or constructive notice. No general rule can be laid tiovvn, equally applicable to every case, but it must be regulated in a great measure by the circumstances of'the particular case. The doctrine, however, generally adopted, is, that whatever .puts a party upon inquiry, amounts, in judgment’of law, to notice, provided the inquiry becomes a.duty, and would leadho the knowledge of the requisite fact by the exercise of ordinary diligence, and understanding. 4 Kent’s. Com. '172. In Heister-v, Fortner, 2 Binn. 40, it. has been hold, that the registry of a deed, defectively proved or acknowledged, is not constructive ■'notice to a.subsequent purchaser, although the registry be made in the proper county. There could not be a case affording a- much, stronger implication of actual notice, than a deed thus recorded. Still it was decided not to*amount to constructive notice. So also in 20 Johns. Hep. C59, a dejiosil of deeds and conveyances, pursuant to'an act passed “to the end that persons inclining to-have recourse thereto, might inspect the same,” was decided not to amount to legal notice, to subsequent purchasers.' See also h Binn;\%Q', Billj,úgtonv.. Welsh, In James v. Morey) 2 Gavien, ifrhas'.been. held, that the registen-ing a deed-of conveyance-, is'.not'notice tola-subsequent-purchaser, except in pases wher'e its .registry is: made necessary by statute- — • thus for-, example, j registering a sheriff is deed-would not'-be notice in that state., -jSo a-lsoin the same casé, it .was, decided, that the'recording an assignment of-a mortgage, is no notice to á mortgagor; so as to render payments' by him-'to-the mortgage-in’his own wrong — because, the recording ah assignment is not within any of the general registry, acts..’ ■ 2''Cowen, 246. It is not my.intention to enter h)tb an examination of the numerous cases that are to be found-in the books art the subject of notice. • Justice Duncan, in delivering the opinion of this court in Peebles v. Refilling, 8 Serg.; & Rawle, 4&6.,. Has-gone-fully-into1 the question, and.-pointed out the various-kihd-s-,-of. notice?.and the difference between them.■ He says,-“that the true,ground-in all. cases..for determining the question of notice, is,-that in itself it is a -spécies.'of "fráúd,'and^tákes away the bona.Jides of the’purchasef, and puts him in mala fide.35 See’also 2 Equity Cases, 6S2. r Wash. 4. ,
    ■ It seems clear,,'that-there is nothing in the-case before us, that-can amount’fo notice," when-tested by the principles established in the cases just-cited.".--In the controversy,-'to such-V state of inextricable confusión, was. the-whole transaction reduced.hy-Ladgé and Planter, that no‘manj not even John'Sptricer, ’could sa'y'which'tract was legally appropriated*'' For' oh the ,-é 6-th- of.'January, 1785, a patent was-.granted to William Wilson, for-3'27Aacres,' the premises in question,; which had been; conveyed to him hy.a-.dee'd-polT from John ’Spencer. ■ .But in 1787, ''a re-surVey* was- Made by order of the. board of- property, at the instance of. William - Wilson, by which Spenp.eP.s- survey wds. removed to. No. 1," where ft had been originally laid ou'tj and .a patent, was-granted to >Wilson for that. The fact, tjrai-Spencer, himself, could not-tell the original situation of his survey, or which, tract had been.appropriated^ is-ample evi-de'nc’e-thafr.there-is nothing in the will of-Homier, which was then proved, that could'by-ofdinary-diligcnc’e ,an'd' understanding,-lead ■ to the discovery'of- the. lot .that ■ was designated, -or. intended to-be desigiiatech thereby1 There is nothing in'the.whole transaction, ‘‘that-takes .aiVay. tlié&ona Jidés oí Siih.onton, the- purchaser, and puts'him'm malafidje.”/ ■/ •'
    Are not bona.’fide purchasers for a Valuable consideration, without notice,..entitled to protection 'against secret trusts? and is not' Simonton such a purchaser?. The heirs.of Lodge certainly, are not. » such. • But if .they -are- to be considered; in the light of purchasers, for a valuable consideration — if both, plaintiffs and defendants have their - equities,;máy not,the equity of the one, be greater than the equity of the other? And is it not a familiar principle, one equal» ly consonant to common honesty and common sense, that he, who has the greater equity, must be preferred to him, who has the lesser. It cannot be pretended, that the heirs of Lodge have a greater equity than their father would have had, if living. What then was his equity? Tlie warrants were talcen out, and surveyed in the names of Hunter, by Lodge’s consent. He authorized Hunter to sell the land, or to dispose of any equity he had in it: and after a deduction, Lodge was to receive one half of the purchase money. This appears by the very evidence, which the plaintiff produces from Hunter’s will, to prove constructive notice. But did his lien continue on the land for his share of the purchase money? His suffering the warrants and surveys to remain in the name of Hunter, as the real owner of the land, with an understanding, that he should sell the same; and at the same time, rendering the appropriations uncertain and confused, was acting mala fide towards the proprietary, and persons desirous of making appropriations, according to the customs and usage of the land office. If Lodge did authorize Hunter to sell, would he have any more lien for the purchase money, than Hunter himself: and certainly Hunter had none; though he had a legal estate, which could only be divested by legal conveyances. Whereas, Lodge had, at most, only an equi - table one, which might be lost by abandonment, or relinquished by acts inconsistent with any assertion of an equitable title.
    
      Iu Lewis v. Madisons, 1 Munford, 303, it was decided that the rule that a purchaser is bound by notice, does not apply to a lien claimed under a written contract, so vague and indefinite as not to designate, with any certainty, the specific land in question. In this case, the description of the land, (if description it can be called,) contained in tlie will, is certainly too vague and indefinite to designate, with any certainty, the specific land in question, and therefore' cannot be notice to affect the defendant in any manner.
    
      Simonton has the legal title. Upon what principle can it be contended, that he holds one hal in trust, for the plaintiffs? He is not a trustee, by the express provision of either any written or unwritten contract. The plaintiff’s case is no( a resulting trust. If the defendant is a trustee for the plaintiff, for one half of the land, it must aspring from circumstances attending the transaction; as accident, mistake, or fraud, which of themselves, form actual ground of Chancery’s interference — inducing it to imply a trust, from what it ascertains to be the conscientious duty of a party: and thereupon, in accordance with its general principles, to compel the performance of that, which rational justice demands.” Jeremy’s Equi. Jur. 94. In this case, there is no allegation of accident, mistake, or fraud, and therefore; the plaintiffs hare no claim arising under these principles. I am clearly of opinion, that relief could only be granted on account of fraud; and that fraud, consisting of a purchase with notice of the trust, must be made out, by clear proof of what would amount to actual notice. It should not be a mere rumour or knowledge, but a notice susceptible of positive proof, or what is the same thing, a precise and definite recital in some of the deeds, under which the defendant deduces title, of the trust. The interest of the trustee, and the property subject to the trust, should be designated, with such certainty, as to be easily applied to the land, held or alleged to be held under it. I am opposed to extending the doctrine of constructive notice, particularly against a bona fide purchaser, for a valuable consideration. A clear case should be made out, and parol evidence received, with the greatest caution. In the case before us, the jury should have been so instructed. The evidence did not warrant the charge, that Simonton had constructive notice, through the will of Hunter, of the interest of Lodge’s heirs in the ¡and. The court were correct in saying, "that in the will, no particular tract is referred to,” and should have added, therefore, too vague and uncertain to be notice, to a purchaser of any tract. We are, therefore, of opinion that a new trial should be awarded.
    
      
       Thomas Yotjng et al. in error, "Y Writ of error to the Common Pleas of v. > Northumberland county-' — present, all the Rohetit Simonton and other, j judges.
      Duncan, J. — Delivered the opinion of the court.
      • Plaintiffs and defendants claim, under a warrant to James -Galley of 24th September-, 1773. It would appear that this warrant was taken'out, and paid’for, by Samuel Hunter, who obtained a deed-poll from Galley. The legal title is deduced from Samuel Hunter, to the defendants who hold the patent; and if they are purchasers without notice, hold it discharged of any alleged trust. But the plaintiffs, the heirs of one Jonathan Lodge, pretend that' the land was taken iip for Samuel Hunter and Jonathan Lodge; and that the defendants purchased, with notice of that fact, or at least, with the means of notice, by the medium of the title, under which they claim. Samuel Hunter being seized of the legal title, in 1784, by a codicil to.his will, devises as follow, (here his honour read the clause on which the question turns ) On the 14th of May; 1810, Alexander Hunter, and Mary his wife, and Mary Scott, ,the children of Samuel Hunter, and his widow, grant the land (prout the deed) to Robert Simonton one of the defendants. The only point respects the l’ecognition of the right of Jonathan Lodge, by the codicil to Samuel Hunter’s will. As to that, the «aurt instructed the jury, that there does n.ot appear any thing, in the will of Sam* 
        
        uel Hunter, that could affect Robert Simonton or any. Claiming undér him, with’ legal notice of any claim of Jonathan Lodge, for that it would appear that Lodge was entitled .to the proceeds of some land, but not the land itself
      Whether or not the .clause-in the codicil, directing that the plantation and tract of land in Túrbut township, near to Mr. IJewetfs, taken up by Mr. Lodge and himself) should be sold by. his' executors, and the sum of J324 15 paid, by him-for warranting the said tract, to be refunded, and paid by Mr. Lodge, or his executors, before he could or might be entitled to any shave or purpart thereof", applied to the tract in dispute, was a matter offagt, to be decided by the jury. If they found it to apply, its operation as notice', was, matter of law. This clause acknowledges the right of Lodge. ■ It states that the land- was taken up by Lodge and Hunter; that the tract lay in Turhut township, and near to -Mr. Ilcweti’s' as this tract does; -and on the purchase money being refunded by Lodge, or his executors„reoognizes-his right to-a share Or. purpart of it. It was notice,of a trust. The-conveyance, though the grantors describe themselves as heirs at law, yet states the will and the .devise- of the tract in dispute, to his widow and heirs at law, and refers specially to the will: “as in and by his will duly proved, anil remaining in the register’s .office at Sunbúry, recourse being thereunto had appeal’s.” The title to Simonton is "under .the will. The' grantors did not Qlaim as heirs at law. The widow Sarah could not be. heir .at law- of her husband the testator. They did not claim the -estate as .one descending on them. There was no intestacy, and they did not take- under the will as heirs, but the widow and the child2’cn, Under the residuary devise, take as tenants In common. They take by purchase, tecáuse they take a different estate) of at least different portions of the estate, from that which would have descended to them. ■, The widow takes not by descent; the children. take not by descent, for they take only two thirds. By descent, they would have taken the whole. At any fate tile conveyance, by the recital of the will and the devise, and by a direct reference tp the will as the source from which the grantors ’declare they derive their right, was sujjiiiaji' to put the vendee m art inquiry;’ and in all cases,-where a purchaser cannot make out a title, but by a deed,'which leads him to another fact, whether by'description of the parties, recital, or otherwise, he will b.e- deemed- cognizant thereof; for it was a-dssa.ncgligentifi, that he sought not for it. And for the same reason, he is bound, by the whole of its contents. Sugd.- Vmd. 499 566. The will had given notice of the trusts, and the purchaser was boiind.to take notice what the trust was. The lessee of Willis v. Bucher, 2 Binney, 499, establishes this doctrine of notice, in its fullest extent. - It was th^re decided, that the purchaser, under a patent, is bound to take notice of a will, recited in a patent, and is affected with notice of what appears on the title, unless it is contrary to thtí patent. The patent showed the devise to.be in fee-simple. The will only gave an. estate tail. The judge who delivered ’the opinion of the court, observed that the will was recorded, and it was the fault of the ■ purchaser, not to examine it. The court below, in the case at bar,, though they ' stated the.Jaw accurately, as to the effect of notice, yet when they instructed the jury, as to the notice afforded by the codicil to the purchaser, they fell into error. Tor they said that there docs not appear any thing in the'will, which could affect Bobert Simonton, or any one'holdirig under him, with legal notice of any claim of Jonathan Lodge to the land; and they assigned this reason for tlicir opinion — that it would appear that Lodge was entitled to a share of the proceeds of some land, but not to the land itself. Now it is evident that the right of Lodge to a share or purpart of the laud itself, was recognized by the testator. This right is founded on their having taken up the land together. One of the usual terms on which .land is taken up in partnership, is an equality of division by'a line between the discoverer and the person who pays the purchase money and lakes out- the warrant — a condition adopted hy Hunter and Lodge,
      
      
        If Hunter and Lodge were interested in Galley’s warrant and in the.lands located on it, then the codicil gives notice of their interests, if from the description of the trad as stated in the will, the jury 'should find it referred to that tract. But the jury were, informed that lot it apply or not apply, the codicil did not give notice of an interest in the land itself, but only in the proceeds — a construction clearly erroneous; far whatever the interest of Lodge might be, having notice sufficient to put him on an inquiry, or notice of the trust, he was bound to take notice what the trust was.
      
      Judgment reversed and a venire de novo awarded.
    
   G-ibsou, C. J.

Decisions on the effect of defectively registered conveyances, deposit of title papers, and most of the others that have been adduced, shed but little light on the subject before us, which belongs to another branch of the law of constructive notice. The only apposite rule in the books is, That a purchaser shall be affected whenever there was enough to lead a vigilant mind to a knowledge of the truth; and consequently, that he should be presumed to have known every thing of which any part of his title afforded an intimation; for not to follow the truth, when put upon the scent of it, is undoubtedly gross negligence. And this I take to be the rule in Pennsylvania, as well as elsewhere; for that a loss incurred from ignorance, shall be borne by .him who had reason to suspect, and yet refused to investigate, rather than by one who is chargeable with no want of vigilance whatever, is consistent, not only with precedent, but the immutable principles of reason and justice. Nothing can be more vague and imperfect than the information afforded by the equivocal fact of possession; yet it is held, that the naked possession of one who has purchased the estate, even though he entered as a tenant, is constructive notice of his equitable title as a purchaser. Sugd. Vend., 744. Why should the rule be different in regard to circumstances that serve to identify the subject-matter of the conveyance? If it is meant to be asserted in the opinion just delivered, that no description may be sufficient to point the attention of a subsequent purchaser, but such as, if used in a warrant, would dispense with a survey, or, as it is said, make the warrant locate itself, I have only to say that the doctrine is new to me. Very different was the notion of Chancellor Kent in Green v. Slayter, 4 Johns. Ch. 45, 46, who, so far from requiring absolute, or even convenient certainty, charged a purchaser, on the principle of lis pendens, with constructive notice of the trust, where the property was described in a bill in equity, as “divers lands in Crosby’s manor;” a description certainly much less specific than the one in the codicil before us. The argument there, was as it is here, that there was nothing in the description which pointed directly to the land. “It is true,” replied the Chancellor, that there might have been divers lands in Crosby’s manor, held in trust by Winter, (the vendor,) and yet the lots he sold to the defendant have been held by him in his own absolute right. But though this was possible, it was an improbable fact; and if ever a bill contained sufficient matter to have put a party on inquiry, the bill of 1809 answered that purpose. The doctrine of Us pendens is indispen-sible to right and justice in the eases, and under the limitation's, in which it has been applied; and according to the observation of Lord Manners, we must not suffer the rule to he frittered away by exceptions. Was it too much to have required of a purchaser charged with notice of all the facts in the bill of 1809, to have called on Winter to disclose the source of his title? The general rule of this court is, that whatever is sufficient to put the party on an inquiry, is good notice in equity. Lord HardwicJee in Smith v. Low, 1 Atk., 489. The least inquiry, even of Winter himself, would have satisfied the purchaser that'the lots he purchased, were parcel of the trust lands mentioned in the bill. ” Was not the necessity of such an inquiry equally obvious and equally imperative in the ease before us? I am relieved from the task of weighing the authority of Chancellor Kent in the preceding case, against that of the court in Lewis v. Madisons, 1 Munf., 303, as there is no essential discrepance between the two cases. In the latter, the contract had not only no apparent, but no actual connection with the land in dispute; and the generality of the expressions used in regard to it, is'to be qualified by the consideration that they were predicated in relation to the particular circumstances off the case. The description was of “land willed” to the partjr contracting, when in fact no land had been willed to him, so that an inquiry by a purchaser would have led to nothing, even had the words embraced, as some of the judges seemed to think they did, land expected to be willed to him; and a majority put the ease expressly, on the ground that an inquiry would have been fruitless. How different in that respect is the ease at bar. A glance at its circumstances will show that an appli • cation of the warrant to any other than the tract in dispute, was, in the words of Chancellor Kent, if possible, a very improbable fact. It was more — it was absolutely impossible. The defendants are compelled to resort to Hunter’s will. If they discard that, they disclaim his title; for it was determined, when the cause was here before, and on ground not to be shaken, that the persons from whom Simonton purchased, had not the land by descent, but as residuary devisees. Simonton was therefore bound to inspect the codicil with the will; and what does it contain? It contains an explicit declaration that “the plantation and tract of land, in Turbut loiunship, NEAR to Me. Hewitts, was the joint property of himself and Lodge.” Now I should suppose it enough to put a purchaser on an inquiry, that the land is described to be in a particular township, and near a particular occupant, though it be not specified whether it be near him on the north, the south, the east, or the west; and even though the party had other lands in the same township, that equally answered the description, which, however, it will be shown, was not the case here. It is precisely in such a case that an inquiry into particulars not before mentioned, becomes proper to remove the possibility of misapprehension by distinguishing with perfect certainty the subject-matter of the contract. Hut it is a most important, and, as it appears to me, a decisive feature of the case, that this was, not merely the only tract which actually adjoined Hewitt, but, as I have already intimated, the only one owned or possessed by the testator at the date of the codicil, which answered the description in any one point or particular; for the other three tracts, in the names of Hunter, Spejicer and Popjay, had been sold by him years before, and it would have been impossible for any purchaser, let the peculiarity of his apprehension or power of combination be what it may, to imagine that the testator was speaking of any of them, when he was directing the particular tract to be sold by his executors. Whatever ambiguity there might have been in the declaration of the testator, if made in relation to the state of things that originally existed, or if he had continued to hold all the tracts, there is none at all, when it is considered that he had but one tract at the time to which it could bo applied, and that he does not appear to have had another inch of land within the township. That this is the tract in dispute, is not controverted, for it is agreed that he had no other at the date of the codicil, to which it could be applied. He and Lodge had surveyed 1200 acres on three locations, of 300 acres each, in the names of Hunter, Spencer and Popjay, which had been occasionally shifted from tract to tract, in order to cover the whole, and protect the excess, beyond what they could lawfully hold on these rights, from appropriation by other applicants. The unfairness of this manage * ment, has a tendency to prejudice the judgment against the plaintiff’s right; and it is therefore not surprising that the defendants have had the benefit of considerations that could be legitimately urged only in favor of a title adverse to that of Hunter and Lodge. But however fraudulent their conduct may have been in relation to the public, it must be obvious that it affords no ground of defence in an action between themselves, or persons standing in their respective places; and it is to be held in remembrance that the very question here is, whether Simonton is not to be treated as standing in Hunter’s place. The shifting of these locations, then, is to be treated as inoperative, further than that as it may have served to enable Hunter’s devisees to conceal Lodge’s right. The Gailey warrant was at last procured to cover the residue of the land, but surveyed on what is called the Hunter tract, which is not the one in dispute; and hence the point of defence made at the bar; that Hunter’s admission of Lodge’s rig-lit, being made in reference to a title by warrant, may possibly have been understood by Simon-ton, as predicated of the tract originally surveyed on the Gailey warrant: in other words, that as the codicil referred to a warrant originally laid on a tract appropriated to the Hunter location, the admission may have been understood as made in reference to that tract. To say nothing, at present, of the undisputed fact that this tract had been sold by the testator himself, perhaps some ten years before, to the corporation, for the relief of poor and distressed Presbyterian clergymen, I shall, for the sake of the argument, admit the possibility of such a misapprehension, and then ask whether it could be founded on facts and circumstances so unambiguous and leading to it so irresistibly, as to have silenced all suggestions of the propriety of further examination. In the first place, the misapprehension must have Been founded on the gratuitous assumption that the Gailey warrant was particularly alluded to. No expression in the codicil authorizes such a conclusion; yet it is the foundation of the hypothesis. The clause is in these words: “And I do further order and direct, that the plantation and tract of land in Turbut township, near Mr. Hewitt’s, taken up by Mr. Lodge and myself, be sold by my executors; and the sum of ¿624.15, paid by me for warranting the said tract,-is to be refunded or paid by Mr. Lodge, before he can or may be entitled to any share or purpart thereof.” It will be perceived that the argument is, that Simon-ton may have taken the admission of Lodge’s title to refer to the Gailey warrant, and through it, to the Hunter tract on which it had been laid. A sufficient answer might be found in the fact that the other parts of the description are altogether inconsistent with that supposition, as that tract was the very furthermost one from Hewitt, instead of being near him. But there is nothing in the clause to indicate the Gailey warrant in particular, the description being not of a warrant, but a tract of land designated by its situation in regard to a particular owner, the species of the title being mentioned incidentally, and for a different purpose. There was no pretext, then, for an assumption that a tract was meant different from that which was otherwise described. But granting that Simonton may have had reason to suspect, what happens to be true in fact, that the Gai-ley warrant was actually meant, yet the supposed cause of his imputed misapprehensions as to the particular tract to which it was applicable, depended entirely on extrinsic circumstances; and if these may enter into the case to give color to the existence of a mistake, they are proper to be used in order to repel it. Now if Simonton had known of the application of the warrant to the Hunter tract, previous to the date of the codicil, it is reasonable to presume he knew, not only that the Hicnier tract, but all the others, had been sold by the testator in his life-time; for the argument supposes that he was acquainted with the management of these lands, and consistently with that, he could not have been ignorant of the fact that both the Gailey warrant and the testator’s admission of Lodge’s title, were inapplicable to any other tract than the only one of which he retained the title, because he was directing the tract of which it was predicated to be sold. The possibility of his being-ignorant of the previous sales by the testator, will not help him. Instead of acting on imperfect information, when better might have been had, is it too much to require him, in the language of Chancellor Kent, to have called on the vendors to disclose the source of their title? Purchasing under a will that recognized the existence of a trust estate which might as described, exist in the land he was treating for, and this without*inquiry pr examination, he ought, it seems to me, to be taken to have acted on his own responsibility. But there is enough in the case to demonstrate that the vendors actually did put him in possession of the origin of their title; the proof of which lies in the undoubted fact that he purchased the Gailey ivarrunt along with the land, as its appropriate and only title. What other title had the vendors to exhibit? The Hunter location had been sold by the testator, as already remarked, to the corpoi’tion, for the relief of Presbyterian clergymen, and the Popjay location had been sold by him and Lodge to Dough-erty; added to which, the Spencer location had been given to Wilson, and conveyed by him in 1790 to Simonton himself, who, if he did not get the Gailey warrant, as the title of his purchase in 1810, consented to pay for the land in dispute, without any title at all — an instance of negligence too improbable to be credited, or, if credited,‘too gross to entitle him to indulgence. But it was not pretended at the trial that he got any other title. On the contrary, it was exhibited as the foundation of his patent, and the origin of his right. It is immaterial, then, what may have been his previous misconceptions of the locality of the Gailey tract, as he could .not believe when he paid the purchase money and received the conveyance, that the admission of an interest in the Gailey warrant, related to any other tract than the ohe to be held by the warrant. If he had ever entertained doubts of it, in consequence of a knowledge, that it had once been applied to a different tract, they were susceptible of an easy solution by information, that its destination had been changed, as was perfectly competent to the owners of it, before survey returned. And we are to suppose, that he actually had this information, and was satisfied with it; or that if he had it not, the want of it is imputable to his own carelessness. The matter, then, is reduced to a simple dilemma. If the admission of Lodge’s title is referrible to the particular tract; Simonton, who purchased it under the will, is to be affected with notice of it. But if it is referrible to the Gailey warrant, then being a purchaser of the Gailey warrant also, under the will, he is equally to be affected. If it is referrible both to the specific tract and the warrant, he is surely to be affected as he is a purchaser of both.

In conclusion, it remains for me to express a dissent, as to the existence of a fact in the case as stated by the judge, who delivered the opinion of the court. It is assumed, as having been proved, that Hunter was authorized by Lodge, to sell his equity along with the legal title. If that were so,' the plaintiff would be postponed on a ground very different from the want of notice. But of the fact, there was no other proof than what may be thought to arise by inference from Hunter’s direction to his executors to sell, for he has no vriiere said that Lodge gave him authority; He doubtless supposed he could make title without any particular authority as he had the legal estate. But a very different view of the Codicil, was taken when the cause was here before, the judgment of the court below, having been reversed for misdirection in charging that the plaintiff’s were entitled to the proceeds of the land, but not the land itself. It seems to me, too, the very point mooted now, was ruled then, it having been determined that the codicil was constructive notice of the trust, and that all which remained to be decided, was a question of fact, whether the description in the codicil were actually applicable to this particular tract ■ — a matter that never was disputed, nor could it be, for the Gailey warrant and the land in controversy were the only title, and the only tract that remained subject to the testator’s power. With an unfeigned respect, then, for the judgment of my brethren, I may be allowed to say, that I retain an unshaken confidence in the opin • ion 1 delivered to the jury.

Judgment reversed and anew trial awarded.  