COMMON LAW 223
What is Notice ?
Notice may be Direct or Imputed. Direct notice is notice to the purchaser himself. Imputed notice is notice to the agent of the purchaser.
Direct Notice may be actual or constructive
(1) Actual notice is where the matter is within the knowledge of the purchaser or his agent.
(2) Constructive notice (is)* where it would have come to his own knowledge or to the knowledge of his agent if proper inquiries had been made.
Actual Notice
- If reliance is placed upon actual notice to defeat a legal right it must be proved that :
(i) It was given by a person interested in the property;
(ii) it was given in the course of negotiations;
(iii) it was clear and distinct.
Constructive Notice
Constructive Notice arises where there is notice of a fact or facts from which notice of the existence of an equitable right could be presumed. It is not notice but evidence of notice.
There are three varieties of constructive notice :
(i) Where there is actual notice of a fact which would have led to the notice of the existence of the right. Bisco vs. Earl of Banbury
(1676) (6) 1 Ch. Ca. 287.
The purchaser had actual notice of a specfic mortgage but did not inspect the motgage-deed which referred to other rights and incumbrances.
He was held to be bound by other incumbrances for he would have discovered their existence if he had inspected the deed as any prudent man would have done Davis vs. Hutchings. 1907 1 Ch. 356..
A trustee transferred a share of the beneficiary to the Solicitor relying upon the statement made by him that it was assigned. They did not call for the assignment. The assignment was subject to a charge in favour of another. Held they had constructive notice of the charge.
- Inserted—ed.