
    LOWER’S APPEAL.
    After a Master has found a fact, it is too late to ask for a jury trial.
    Where a conveyance was procured by fraud, and a bill for a reconveyance was filed, a decree for a pecuniary compensation was made against the fraudulent grantee : and the bill dismissed against the innocent vendee of the latter. ’
    Where a party could not have learned the facts by inquiry, he is not prejudiced because he did not inquire.
    October and November Term, 1872. Appeal from the Common Pleas of Indiana County. In Equity.
    Samuel Lower filed a bill in equity against John Wightman and John Nevins to set aside a conveyance of a farm on the ground of fraudulent representations by Wightman when the contract was made. An answer denying the bill, and a replication traversing the answer were filed. The facts are set forth in the following extract from the report of A. C. Boyle, Esq., the Master:
    In February, 1851, Samuel Lower, by virtue of a contract of purchase, became the owner of a certain tract of land situate and lying in Brushvalley township, Indiana county, adjoining lands of David B. Hite, Daniel Cramer and others, containing one hundred and ten acres and fifty-six perches. Immediately after his purchase, he went into the possession and from that time on until the 5th day of October, 1865, he continued therein, in quiet and peaceful enjoyment, the sole and exclusive owner. For a considerable time prior to this last day, letters passed between Lower and Wightman concerning the Brushvalley farm, and on that day, having met on the premises, they entered into a contract of agreement in writing, whereby the Brushvalley farm was exchanged for lands in Wisconsin.
    The article itself, is not in evidence, and therefore we are not able to find more specifically what it contains.
    Afterwards on the same day, Lower, the complainant, and his wife, joined in the execution of a deed with covenants of general warranty to Wightman for the Brushvalley farm, mentioning therein as a consideration the sum of three thousand dollars. Acknowledged same day, before ’Squire Wolf, in due form. Recorded Oct. 6, 1865, in D. B. Yol. 41, page 324.
    On the 11th day of February, A. D., 1866, John Wightman prepared and executed a lease of the Brushvalley farm to Lower for one year from the first day of April, A. D., 1866. This lease, having been brought to Lower’s house by Wightman’s son, was accepted by him, and signed on the 2d day of March, A. D., 1866, .and a copy drawn off by his son Isaiah W. Lower and retained.
    On the 24th day of October, A. D., 1865, Wightman executed two deeds to Lower for lands in Wisconsin.
    One of which conveyed the Ñ E ¿ of the S E and the S FI J of the N E £ of section 4, — and the N W £ of the S W J, and the S W £ of the NW| of section 3, in township 33, north; of range 6, west — containing 160 acres as per government survey. Consideration, $1,600 — acknowledged Oct. 23, 1865.
    The other conveyed the one undivided half of the E J of N W J of section 8, and the S E J of the S W j of section 5, in township 27, north; of range 5, containing 120 acres; also the E J of the S E J, and the S E £ of the N E J of section 7, township 27, north; of range 5, west — containing 120 acres; also the N J of S E ^ of section 19, in township 26, north; of range 5, west — containing 80 acres. Beiug part of the J. P. Hilling lands — consideration $1,600. Acknowledged 24th of October, 1865. Both containing covenants of general warranty.
    On the 22nd of January, 1868, Wightman, through Alexander Taylor, Esq., and W. H. Kerr, tendered another deed dated Nov. 15th, 1867, to Lower, conveying the N E | of section 1, in township 27, north; of range 5, west — containing 160 and 11-100 acres, duly stamped, signed and acknowledged by Wightman and wife, before Albert Watson, a notary public of Trumbull County, Ohio, on the 18th of January, 1868. Consideration $1,600.
    They then demanded from Lower a re-conveyance of the land held by him, by virtue of the first of the above mentioned deeds-of Oct. 23, 1865, which they alleged had been conveyed to him. through mistake and not contemplated by the article of agreement of the 5th of October, 1865, and at the same time produced for him to sign and acknowledge, a deed, duly stamped, describing-the lands required to be re-conveyed to Wightman, and tendered! the necessary fees for acknowledgment.
    On the 30th of October, 1865, Wightman executed and ac> knowledged a deed for the Brushvalley farm to John Nevins.. Consideration $3,000. Recorded in D. B. A., Yol. 33, page 248,. on the 12th day of August, 1886.
    This deed was not delivered by Wightman to Nevins until tho the 24th day of March, 1886.
    Nov. 22, 1865, Nevins executed and acknowledged a deed for the “Huron House,” situate in New Brighton, Pa., to Wightman.. Consideration^ $7,000. Recorded in D. B. B., Yol. 51, page 220„ of Beaver County.
    This deed was not delivered to Wightman until the 24th off March, 1866.
    March 24, 1866, the day on which Wightman and Nevins ex-phanged deeds, the lease of the 11th of February, 1866, by Wightman to Lower above mentioned, was transferred to Nevins-by assignment on the back. This assignment is not dated, and! the date is only fixed by the cancellation of the Revenue stamp, thereto affixed. It was written by W. J. Paulhamus, who has-been examined as a witness by respondents, and who fixes this, date in his testimony.
    During all the time through which those negotiations between. Wightman and Nevins extended, Lower remained in the actual,, visible and notorious possession of the Brushvalley farm, and in fact had continued therein from the time of his sale to Wightman,.. and still remains to this day. Hi^ possession has been uninterrupted from Feb,, 1851, the time when he bought, until this? present time,
    
      It is sought by Lower in this bill to avoid the consequences of bis contract with Wightman for the sale or exchange of the Brush-valley farm upon three several grounds.
    1st. That his consent to the contract and the execution and delivery of the deed was obtained from him by Wightman through fraud and misrepresentation.
    2d. That the deed of October 20, 1865, by Wightman to Nevins was a mere pretence, done in bad faith for the purpose of avoiding the fraud perpetrated on Lower by Wightman, and without consideration.
    3d. That even if for valuable considerations, Nevins at the time of his purchase, had such notice, either actual or constructive, of the fraud, as takes from him the character of an innocent purchaser, for value, without notice.
    The first of these propositions we think is fully sustained by the evidence, and we do therefore find that John Wightman on the 5th day of October, • 1865, at and immediately before the signing of the execution of the deed for the same by Lower and wife, practiced such a fraud either knowingly and wilfully or otherwise, upon him, by misrepresenting the character, quality and value of the Wisconsin lauds, as would in Wightman’s hands, render the contract null and void and require at the hand of a chancellor such relief as is sought for in this bill.
    With reference to the second proposition of the complainant, we have failed to discover that the contract of exchange between Wightman and Nevins was a mere pretence. On the contrary, we find that the deed from Wightman to Nevins for the Brush-valley farm was based upon a good and valuable consideration, viz: A conveyance of the title of the hotel property in New .Brighton.
    As to the third proposition we find that Nevins, at the time of his purchase, had no notice, either actual or constructive, of the fraud practiced on Lower by Wightman, and that he was an innocent purchaser for value actually paid.
    We do further find that on the 5th day of August, A. D. 1869, the complainant Lower, his counsel, made a tender to the counsel of John Wightman of a deed of re-conveying the Wisconsin land •to him, and also the sum of sixty-one dollars and twenty-five cents, being the amount of money paid by Wightman to Lower at the time of their contract of Oct. 5, 1865, with interest thereon up to the date of the tender.
    In considering this question, the counsel for respondents raised the previous question of jurisdiction. They contend that if the complainant has no right to obtain, the relief asked for in his bill (that is the delivery up for cancellation the article of agreement and deeds,) he has no right to have a decree compensating him for any damage he may have suffered — because damages are only incidental and auxiliary to the maintenance of the bill.
    It is said that "Equity is the correction of that wherein the law is deficient.” To give Equity jurisdiction therefore, of a subject matter it must be the means of affording to the party seeking its aid, a remedy which is not only effectual, but which cannot be so perfectly obtained in the Courts of Common Law. "To answer jurisdiction in Equity, says Black, J., in Finlay vs. Aikin 3 Pitts. Leg. Jour, page 2, of a cause which can as well be determined in an action at law, is not to do Equity, but to administer law in a form not legal. It would not be giving relief but simply usurping power.”
    Has Lower then, an adequate remedy to redress his wrongs, which can be enforced as readily by action at law as by bill in Equity. It is said that full relief may be obtained by him in a Court of law, by special action on the case against Wightman for deceit. We do not think so. In an action for deceit it seems the plaintiff must show affirmatively that the party making the representations, actually knew of their falsity when made, and if it appears that the defendant believed what he stated, a jury is bound to find in his favor. Now, in my opinion, equity goes further than this, and says to the part}' making the representations, when they consist in the assertion of material facts, which become the notice to the contract, that mere belief in their truth will not do, and you shall not shield yourself behind barren honesty from the consequences of your false assertion. To allow, therefore, for this reason, that equity has no jurisdiction here, would possibly result in denying to Lower any redress whatever. Wightman has put it beyond our power to rescind the contract by his own act; in action for deceit, he might prove that he believed the representations that he made were true, and then Lower is left to whistle as the wind.
    Great stress too has been laid upon the maxim “that he who seeks equity must first do equity.” And the counsel for the respondents insist, that inasmuch as Lower brought his bill even before a tender, to place their clients in the position they occupied before this trade was made, he can have no standing in a court of equity. We do not think that this principle can with any show of propriety, be invoked here in aid of the respondents. It is undoubtedly true, when a party who has been guilty of iniquity himself comes to a chancellor for relief, he must come with clean hands, and place the other party in the same position in which he found him, or offer to do so, before equity will interfere for his relief. But can this be said where a fraud has been practiced on the party who asks its aid? Must a man first be duped, and then required to restore to his original condition, the other who has practiced on him, before relief can be obtained? If this be so, equity becomes iniquity and a premium is put upon fraud. The sharper may practice his acts without fear of loss. If he wins very good; if he loses, he has nothing at stake. A re-conveyance from Lower to Wightman of the Western lands, we do not think essential at any time, and his offer to do so during the hearing, was a mere matter of grace.
    Believing, therefore, that Lower has a perfect right to a decree for damages in this proceeding, it only remains to determine the amount. The evidence shows that the Brushvalley is worth from $30 to $35 per acre. The value put upon it by Wightman and Lower themselves, seems to have been $3,200, although the consideration mentioned in the deed is only $3,000. As there are 110 acres in the farm, this sum ($3,200) is about fair value for it. We therefore allow the complainant, Samuel Lower the sum of thirty - ty-two hundred dollars with interest from the first day of April, 1866, amounting, at this time to the sum of four thousand dollars, for his damages as against John Wightman.
    Lower filed exceptions to the Master’s report, the material one being that the Master erred in not finding that Nevins had notice of the fraud. Respondents excepted to the finding of fraud, the awarding of damages, and also to the jurisdiction in equity. They also asked for an issue.
    
      John P. Blair and N. W. Weir, Esqrs., for Lower cited the following authorities:
    As to misrepresentations: Hunt vs. Moore, 2 Barr, 108; Story’s Equity, Sections 192, 198, 246, Volume 1; Adams’ Equity, 187, note 2; Smull vs. Jones, 1 W. & S. 128; Gilbert vs. Hoffman, 2 Watts, 66; Jackson vs. Summerville, 1 Harris, 359.
    Lower’s possession was constructive notice to Nevins: Woods vs. Farmere, 7 Watts, 384; Jaques vs. Weeks, 7 Watts, 276; Kerr vs. Day, 2 Harris, 112; Randall vs. Silverthorn, 4 Barr, 173; 1 Story’s Equity, Section 400; 16 Vesey, 253; Burkhart vs. Greenshields, 28 Eng. Law and Eq. Rep. 77; Morrow vs. Souder, 3 Phila. 112; Basset vs. Nossworthy, Law Library Vol. 46, pages 92, 116; Blight vs. Schenck, 10 Barr, 285; Van Amringe vs. Morton, 4 Wharton, 382; Sailor vs. Hertzog, 4 Wharton, 259.
    If Nevins is held to be an innocent purchaser, then Lower is entitled to a decree for money: Swisshelm’s Appeal, 6 P. S. 475; Adams’ Equity 380, 391, note 2, 598, note 1, 718, note 3; Woodcock vs. Bennet, 1 Cowen, 711; Andrews vs. Brown, 3 Cushing, 135; Pratt vs. Law, 9 Cranch, 492, 494; Adams vs. Smith, 7 Harris, 182; Sunbury and Erie R. R. Co. vs. Cooper, 9 Casey, 278.
    Lower was not estopped by the lease from asserting his title; Thayer vs. United Brethren, 8 Harris, 62.
    For he did not hold under the lease until the term began: Bacon’s Abridgement, vol. 5, page 631; 2 Black, Com. 144; Sennett vs. Bucher, 3 P. & W. 392.
    If a replication is filed the answer cannot be read: Hengst’s Appeal, 12 Harris, 413; Adams’ Equity 365, note 2.
   The Court below sustained the report of the Master in the following opinion delivered July 26, 1872, by

Logan, P. J.:

We had little difficulty in agreeing with the Master that the evidence developed such elements of fraud in the original contract between Lower and Wightman as demanded a decree either avoiding the obligation of that contract or compelling compensation in damage. A much closer question however to our mind is as tO’ whether Nevins was an innocent purchaser of valley farm from. Wightman without notice.

Before going into this, however, we may say that the application by Wightman’s counsel to have the questions of fact referred to a jury made on the final argument if ever meritorious, is now much too late. After having submitted the determination of the facts to the arbitrament of a Master and having taken the chances of a finding in their favor, they cannot now after an adverse finding select, a new tribunal. No allegation of unfairness or charge of partiality is made against the Master nor is it presumed any such could be sustained. There is therefore nothing to induce us to grant the request. It is due to the Master to say that his report is elaborate and seems to be candid and his conclusions probably nearer the truth than the finding of a jury.

Turning then to the question as to whether Nevins was an innocent purchaser for value without notice, we will for our own convenience inquire first whether or not under the facts and circumstances he had constructive notice.

We are free to say that our first impression was that the Master erred in not holding there to have been constructive notice growing out of the fact of the possession by Lower of the land at the time of Nevin’s purchase. We did not then think the position of the Master sound in ruling — that the fact of a contract of lease, the term of which had not yet begun constituted Lower’s possession so equivocal as to take it without the rule that possession is notice. The Master’s doctrine seemed to us a dangerous encoachment on a wise and benificent rule of law and we therefor© have given the matter most careful and extended examination.

If it had appeared that, on inquiry by Nevins of Lower, then in possession of the land, at the time of his (Nevins) purchase, the fact of the fraud would have been discovered, in such event Nevin’s failure to inquire would to us have seemed the absence of ordinary diligence aud therefore constructive notice. In this view the fact of an existing contract for a future lease would not explain a present possession. If Lower became aware of the fraud after the 2nd of March, 1866, (the date of the contract of lease of Wightman’s to Lower) and before the 24th of March, 1866, (the date of the delivery of deed by Wightman to Nevins) he had a right to depend on his possession as notice up until the 1st day of April, 1866, the time at which the tenure under the lease began. After this the burthen would have been on him as against any one with a knowledge of the lease to have given actual notice. The question then to our mind largely turns on the fact as to the time when Lower first became advised of the fraud perpetrated by Wightman. In short whether or not at the time of the purchase by Nevins from Wightman which was on the 24th of March, 1866, and -before the term of the lease began, Lower was in a position to have advised Nevins of the fact of the fraud and his claim to the title, despite his deed to Wightman by virtue of that fraud.

Nevins should not be prejudiced by not having' made an inquiry, which if made would have been fruitless and not have enured to the protection of Lower. If on the 24th of March, 1866, Lower had not notice of the fraud he was in full recognition of Wightman’s title and an inquiry then by Nevins must have resulted in such information as would fairly have induced Nevins to conclude the purchase from Wightman.

As to this fact, namely the time when Lower first discovered the fraud, the Master’s report does not advise us except as incidentals referred to in supplementary finding. The Master’s report is, however, so exhaustive of the general features of the case, and this being a single fact, discernable by an examination of the testimony we can have little difficulty in determining it, guided by the supplementary report.

Bringing to the inquiry our utmost care we are led, after an examination of all the evideuce, by the testimony of Samuel Lower, the plaintiff in answer to interrogatory “41,” taken in connection with the testimony of Esquire McCrea to the conclusion that Lower did not know of the fraud until July or August, 1866. In this connection Samuel Lower in substance says that he did not know at the time of signing lease that the representations made by Wightman as to the quality, location and value of the western lands was not correct and that the first he knew of this was after he got Esquire McCrea to examine the deeds. From Esquire McCrea’s testimony we learn that this examination was in July or August, 1866.

We, of course, make no reference to the testimony of Wight-man, Nevins or Nelson in this connection, we rely upon the declarations of Lower, testifying as to a matter against his own interests and peculiary within his own knowledge, as connected and explained by Thompson McCrea, a wholly disinterested, uncontradicted and unimpeached witness.

Wherefore, as by inquiry Nevin could have discovered no fact at the time of his purchase by an inquiry of Lower, inconsistent with the face of the papers, he was not bound to make inquiry, and in view of this and all the circumstances in the cause, we must conclude there was no constructive notice.

Coming then to the question of actual notice to and alleged complicity with Wightman by Nevins,. we have a difficult and anxious inquiry. In the testimony, conflict and contradiction seem apparently irreconcilable. In treating this question we shall look indifferently to the first and second reports and the testimony attached to each. We may also find it convenient to treat-together allegations of notice and complicity.

Robert Nelson swears positively to actual notice, sufficiently direct, positive and express, if the strongest expressions were to be given credence, to bring it within the rule of the closest case. He is corroborated by the testimony of Wightman in his supplemental examination, who also swears to actual notice in Nevin of Lower’s allegation of fraud, Nelson is corroborated by Alex. Taylor, Esq., who swears to having heard Nevins say to Nelson shortly after his examination and during the same day, that what he had sworn was true, save as to some immaterial matter. This would have constituted an admission by Nevins of the fact of his having notice, inasmuch as Nelson testified to having given such notice, or otherwise evidence of complicity with Wightman. This position is somewhat further sustained by the fact of the price of the Huron House — the precedent negotiations — the singular reticence of Dr. Nevins in his first examination as to Nelson and his profuseness on this subject in his later testimonj', as also other less significant circumstances developed in the cause. This much as to affirmation of evidence oi actual notice and complicity. ■

On the other hand we have however, the fact that up until the first reporto! the Master there is no allegation of prior notice in Nevin, but on the contrary, this fact stood distinctly negatived in the testimony (vide reference to Lower’s testimony supra). Dr, Nevins in terms positively contradicts the fact of notice under •oath, and explains with some plausibility his connection with' Nelson. He also denies the fact that the negotiations with Wightman were in a part delayed from November, 1865, until March, 1866, by reason of his claiming a general warranty deed induced by a fear of diffiulty in getting possession. He attributed the delay entirely to a difficulty as to some articles of personal property, and in this he is corroborated by the testimony of Wm. J. Paulhamus, and still more strongly by the fact that in none of the letters which passed between the parties at the time upon the subject so far as they are in evidence, is there any mention made •of the difficulty in getting possession.

We then had the character of Nelson for truth attacked. This effort however., the Master quaintly remarks, “was not attended with such satisfactory results as he (Dr. Nevins) would have wished for.” How strong Dr. N. wished the testimony we cannot say, but that it is largely weak is evident.

To these with certain other circumstances more or less pregnant on his side is added the finding of the Master. Is this-finding then sustained by these facts.

It might be conceded that without the testimony of Lower before referred to we would have difficulty in sustaining the Master. We cannot, however, imagine that Lower could be mistaken in saying he was not informed of the fraud until he took the deeds to McOrea. . If so this fact is wholly irreconcilable with any such construction of Nelson’s testimony as would constitute notice from Lower to Nevins of the fraud. The Master did not so credit this testimony of Nelson. Nor can we in the light of the testimony and the Master’s finding give it the full force sought by the complainants and Wightman’s counsel.

We have no .doubt that Nelson is mistaken in so far as he contradicts the testimony of Lower and therefore Nevins could not before his purchase from Wightman have received notice of the fraud from Lower. That Lower earlier than his actual discovery of the fraud might have felt in sympathy with his now deceased wife’s anguish, in giving up the homestead of which we are informed in the testimony, and in popular parlance thought himself cheated by Wightman’s fairly getting a good bargain out of him, is possible.

Or it may be that he regarded as cheating, those blandishments allowable by the laws of trade, though responsible to morals through the seductive influences of which Wightman without actual fraud, ,had led him into a contract that broke up the family . association, sending them from'the quiet and peaceful Indiana to the great west, where as we learn from the testimony, the neighbors told him the Indians were. All this we say is possible, but would not have avoided the contract, and if told to Nevins would not necessarily have been notice. But that Nevins had notice from Lower on or before 24th March, 1866, of the fraud charged in the bill and which moved the Master to sustain the recovery against Wightman, and how moves this court to sustain this action of the Master, we cannot believe.

As to whether Nevins had notice of the fact of the fraud from Wightman or in other words was a party to it, the testimony is at most, conflicting and contradicting. Supposing Nelson to have received his knowledge of the fraud from Wightman and communicated to Nevins would then have him in conflict with himself and the force of his testimony destroyed. Or looking at the allegation that Nevins was privy to Wightman’s fraud, we again glance over the testimony and find nothing clear and satisfactory pointing to such conclusion.

No element in the cause seems to invite us in the aid of justice to a reversal of the Master’s finding upon these questions of fact. Something and not a little is due to the conclusions of a master upon, such questions. He has the witnesses before him, sees their expression, their conduct and actions are reflected upon him and he sympathizes with their motives; therefore his construction of the testimony is entitled to great weight.

Besides to him is committed questions of fact. Still apparent injustice or even a marked weight of evidence would have moved us despite his conclusions; of the existence of such in this case we are not convinced.

It is very much urged by counsel of Wightman, that the Master overstepped his power in imposing pecuniary compensation upon Wightman and that the Court has no power to enforce such decree. To this it is enough to say that the authorities referred to by the counsel on argument fully vindicates the action of the Master and the facts of this case seem with great force to invoke the exercise of such power.

We may also here refer, although somewhat out of order to the position taken by counsel that no tender of reconveyance or repayment of the $50 paid by Wightman preceded the institution of these proceedings. Such tender has however been made and is at present on deposit for the benefit of the defendant. We have not been able to regard the failure to make such tender earlier as sufficient under the circumstances at this late day to dismiss the case with costs.

Wherefore, and now, July 26, 1872, the exceptions to the report of the Master are overruled and the report of the Master confirmed and the report adopted as the judgment of the court. It is further directed that a decree conformable to such judgment be drawn by counsel and presented to the court according to Equity Hules, No. 78 and 79, and it is further ordered, should the complainants counsel choose to avail themselves of the privileges. of the 80th Hule that the amount entered and indexed shall be the net sum of $4,000 with interest from the 9th of June 1870.

DECREE OF THE COURT.

And now, to wit, Sept. 29th, 1872, the cause coming on to be heard and having been fully argued by counsel after due consideration it is ordered, adjudged and decreed that the bill of the complainant, Samuel Lower, be and the same is hereby dismissed as against the respondent John Nevins.

And it is further ordered and adjudged that the respondent, John Wightman, do pay the complainant Samuel Lower, the 'sum of four thousand dollars, with interest thereon from the ninth day of June, A. D., 1870, for the damage sustained by reason of the representations aforesaid and that the said Samuel. Lower, do deliver up and surrender to said John Wightman, the several deeds he has received from him for the lands in Wisconsin, and that the respondent Wightman pay the costs of this proceeding. And it is further ordered that the compensation of A. O. Boyle, Esq., the Master in the case be fixed at four hundred dollars. The parties by their counsel being present, waive notice of the making and entering of this decree.

Lower then appealed to the Supreme Court and assigned for error.

1. The Court erred in dismissing complainants bill, as against the respondent, John Nevins.

2. The Court erred in finding that John Nevins was a bona fide purchaser, without notice actual or constructive.

3. The Court erred in not ordering the agreement between Lower and Wightman, and the deed made in pursuance thereof, dated October 5th, 1865, to be delivered up and cancelled, for the reason that they were fraudulent and void.

4. The Court erred in not decreeing the deed of October 30, 1865, John Wightman to John Nevins, null and void as against Samuel Lower.

John P. Blair and H. W. Weir, Esqrs., for Lower argued :

That Lower’s reconveyance of Wisconsin lands was in time at the trial: Babcock vs. Case, 11 P. F. S. 431.

Lower was in possession, which was at least constructive notice to Nevins: Randall vs. Silverthorn, 4 Barr, 173; Woods vs. Farmere, 7 Watts, 382; Blight vs. Schenck, 10 Barr, 295; Daniel vs. Davidson, 16 Vesey, 294; Van Amringe vs. Morton, 4 Wh. 382; Krider vs. Lafferty, 1 Wh. 303; Grimstone vs. Carter, 3 Paige, 421; Webster vs. Maddox, 6 Maine, 258; Colby vs. Kenniston, 6 New Hampshire, 262.

In Scott vs. Gallagher, 14 S. & R. 389, there was a secret agree - ment and the holder was negligent in not recording.

Lower was noi estopped, by the lease: Thayer vs. United Brethren, 8 Harris, 62.

The remark in Leech vs. Ansbacker, 5 P. F. S. 80, was about an ' actual tenancy. Lower would have had no rights under the lease until April 1, 1866, 2 Blackstone’s Comm. 144; 5 Bacon’s Abridgement, 631; Sennett vs. Bucher, 3 Pen 392, and consequently was not subject to the presumptions arising from an actual tenancy.

If Nevins is an innocent purchaser the Court has power to make a decree against Wightman for a sum of money: Woodcock vs. Bennet, 1 Cowen, R. 711; Andrews vs. Brown, 3 Cush. 130; Cud vs. Rutter, 1 P. Williams, 570; Pratt vs. Law, 9 Cranch, 492, 494, Harrison vs. Deramus, 33 Alabama, 463; Bell vs. Thompson, 34 Alabama, 633; Lee vs. Howe, 27 Mo. 521; Smith vs. Fly, 24 Texas, 345; Bailey vs. Burton, 8 Wend. 339; Traip vs. Gould, 15 Maine, 82; 6 Peters, 389; 1 McL. 200; Phillips vs. Thompson, 1 Johnson Ch. R. 120; 2 Story Eq., Sect. 399.

Equity has jurisdiction in this case; 2 Story’s Eq., Sect. 398: Hatch vs. Cobb, 4 Johnsoa Ch. R. 560.

In an action at law no service could have been made on Wight-man, while in equity service was made by publication under Act of April 6, 1859.

Silas M. Clark and Wm. M. Stewart, Esqrs., on behalf of Nevins, appellee, argued:

That the parties in this case were three ; each having a separate, independent and antagonistic interest to the other two. Lower seeking the cancellation of the deeds, or failing in that, damages from Wightman. Wightman denies the alleged fraud, but failing in that he seeks to aid Lower in recovering the land from Nevins, and thus escape himself from the decree against him for damages. Nevins’ defence is that he is an innocent and bona fide purchaser from Wightman for full value, and without notice of the fraud, alleged by Lower. .

The Master found as a fact that Nevins had no actual notice of it, and his finding, though not conclusive, is entitled to great weight: Phillips’ Appeal, 18 P. F. S. 130. In this case the Court below have approved of the finding of the Master, and it becomes like a special verdict: Clark’s Appeal, 12 P. F. S. 450.

Nothing less than actual, open and unequivocal possession is deemed constructive notice to a bona fide purchaser of the legal title, without actual notice of the trust: Kerns vs. Swope, 2 Watts, 78; Ripple vs. Ripple, 1 Rawle, 390; Woods vs. Farmere, 7 Watts, 387; Peebles vs. Reading, 8 S. & N. 496; Scott vs. Gallagher, 14 S. & R. 334.

Actual possession is deemed notice, because it is the purchaser’s duty to see in and underwhattitle thelandis occupied: Brightley’s Equity, Sect. 116.

But it is also the duty of the occupier not to record a title which is inconsistent with his claim, and thereby mislead a purchaser, for “when the occupant therefore points the attention of the public to a particular conveyance by the register he abandons every other index;” Woods vs. Farmere, 7 Watts, 385. The' same principle also applies where (as in this case) the party who claims to ¡be the owner becomes a tenant by accepting a lease; for “when ibe party is in possession under a lease, the knowledge of the lease dispenses with the inquiry of how the possession is held:” Leach vs Ansbacher, 5 P. F. S. 89.

Wightman also appealed, alleging that the Court erred in not granting a trial by jury, and in awarding damages against him in the equity proceeding, which might have been recovered at law.

A. W. Taylor and S. N. Pettis, Esqrs., for Wightman argued:

That Lower should have returned the money and papers re-ceived before attempting to rescind: Murphy vs. McVickers, 4 McLean, 252; Espy vs. Anderson, 2 Harris, 308; Simpson vs. Wiggin, 3 Woodbury and Minot, 413; Hunt vs. Silk, 5 East, 449; Staines vs. Shore, 4 Harris, 200; Pearsoll vs. Chapin, 8 Wright, 9.

Misrepresentation as to value is not ground for rescission: Graham vs. Pancoast, 6 Casey, 89; 1 A. K. Marshall, 230; Rockafellow vs. Baker, 5 Wright, 320; Adams’ Equity, 400; Davidson vs. Little, 10 Harris, 245; Sunbury and Erie N. N. Co. vs. Cooper, 9 Casey, 280; Cornelius vs. Molloy, 7 Barr, 293.

The Supreme Court affirmed the decision of the Court below in both cases on January 27th, 1873, as follows:

Per Curiam.

Appeals dismissed, and decree affirmed.  