The law previous to the Conveyancing Act, 1882.

(k) Kennedy v.Green, 3 My. & K. 699, 720; Cave v. Cave, L5 Oh. D. 639, 645; Berwick & Go. v. Price, 1905, 1 Ch. 632-610. (l)Sharpi v. Foy, L. R. 4 Ch. 35; Re Southampton's Estate, 16 Ch. D. 178. 184; Fry, J. Kettlewell v. Watson, 21 Ch. D. 685, 707.

(m) Above, p. 246.

(n)See Kennedy v. Green, 3 My. & K. 699.

(o) See Boursot v. Savage, L. R. 2 Eq. 134.

Kennedy v. Green.

Boursot v. Savage.

( p) Atterbury v. Wallis, 8 De G. M. & G. 454, 466: Holland v.

Hart, L. R. 6 Ch. 678, 682, 683.

(q) Kennedy v. Green, 3 My. & K. 699: see also Re Southampton's Estate, 16 Ch. D. 178, 184.

Atterbury v. Wallis.

Bradley v. Riches.

Sharpe v. Foy.

(r) Boursot v. Savage, L. R. 2 Eq. 134.

(s) Atterbury v. Wallis, 8 De G. M. & G. 454: see also Rolland v. Hart, L. R. 6 Oh. 678.

(t) Bradley v. Riches, 9 Ch. D. 189.

(u) L. R. 4 Ch. 35.

Section 3 of the Conveyancing Act, 1882 (y), preserves to principals the benefit of the exception established as above mentioned (z) in the case of the agent's fraud. But the distinctions drawn with regard to this exception have been greatly modified by the operation of subsection (1) (ii) of the same enactment. Thus, in Taylor v. London and County Banking Co. (a), one Tasker had appropriated part of certain mortgages to which he was entitled in satisfaction of a breach of trust committed by him as trustee of the Brockman settlement. Afterwards, on the appointment of Nixon as a new trustee of the Tasker settlement, whereof Tasker had been previously sole trustee, and had apparently converted part of the trust funds to his own use, Tasker transferred these mortgages to Nixon and himself, representing that they were part of the funds subject to the trusts of the Tasker settlement; and in this business Tasker acted as Nixon's solicitor. It was argued for the persons entitled under the Brockman settlement 6), on the authority of Boursot v. Savage (c), that notice of the equity in their favour must be imputed to Nixon in consequence of Tasker having so acted as his solicitor. But it was held (d) that the doctrine laid down in Boursot v. Savage is now subject to the modifications introduced by the 3rd section of the Conveyancing Act, 1882 (c); and that, as knowledge of the appropriation to the Brockman settlement did not come to Tasker as Nixon's solicitor or in the same transaction in which the question of notice arose, Nixon could not be affected thereby. The principle of this decision appears to affect not only the case of Boursot v. Savage, but those of Atterbury v. Wallis and Bradley v. Riches (f) as well. For in neither of these cases was the knowledge sought to be imputed to the client acquired by the solicitor in his capacity of solicitor for that client or in the transaction in which the question of notice arose.

Cave v. Caxe.

Effect of the Conveyancing' Act, 1882, s. 3.

Taylor v.

London and County Bunk.

(x) 15 Ch. D. 639. (y) Above, p. 246.

(z) Above, p. 248. (a) 1901, 2 Ch. 231.

As a general rule, a purchaser is affected by notice to his counsel, solicitor, or other agent, notwithstanding that the agent be also employed as the agent of the vendor (g) or be himself the vendor (h). But when the vendor is a solicitor or other agent, it must appear clearly that he acted generally as the solicitor or agent of the purchaser in the transaction, in order that the knowledge of the agent may be imputed to the purchaser. The purchaser will not be affected with notice if the vendor be merely employed to prepare the conveyance (i). The rule is the same between mortgagor and mortgagee (k).

Vendor or mortgagor acting as pur-chaser's or mortgagee's solicitor.

(b) 1901, 2 Ch. 242.

(c) L. R. 2 Eq. L34: above, p. 250,

(d) 1901, 2 Ch. 257-259 (e) Above, p. 246. (f) Above, p. 251,

It will be observed that, under the Conveyancing Act, 1882 (l), a purchaser will not be affected with notice of anything which would not have come to the knowledge of himself or his agent if such inquiries and inspections had been made by the one or the other as ought reasonably to have been made. The question then arises, what inquiries and inspections ought reasonably to be made? The answer to this appears to be: such inquiries and inspections as are usually made by a prudent purchaser buying under an open contract (m); for, as we have seen (n), a purchaser buying under special conditions limiting his right to investigate the vendor's title is fixed with constructive notice of all equitable incumbrances which he would have discovered if he had made such inquiries. And it should be noted that a purchaser or mortgagee taking the legal estate, but omitting to make reasonable and proper inquiries and inspections, will be affected with notice of such prior equities as he would have discovered if he had made such inquiries, although the omission to make the inquiries did not arise from any fraudulent motive, but was simply owing to gross negligence. Thus, where a purchaser bought land in good faith through an agent, who was not a solicitor, and required no abstract of title nor production of the title deeds, and the deeds were in the possession of an equitable mortgagee, it was held that the purchaser, to whom the legal estate had been conveyed, took the same with constructive notice of and subject to the charge created by the deposit of the deeds (o). Where, however, a purchaser makes due inquiry for the title deeds and a reasonable excuse is given for their non-production, he will not be affected with notice of any equity arising out of their absence, and may, if he obtain the legal estate, avail himself of it and of the defence of purchaser for value in good faith without notice as against all persons asserting any such equity (p).

What inquiries ought a purchaser to make?

(g) Le Neve v. Le Neve, Amb. 436; Dryden v. Frost, 3 My. & Cr. 670; Holland v. Bart, L. R. 6 Ch. 678.