Wickliffe's Executors vs. Preston et ux. states his reasons for charging her with only that sum, and then expresses a hope that his other two daughters "would cheerfully accord and assent to the equal distribution of my undivided estate, as hereinafter made, on account of the reasons and considerations which influence me now to make and regard them as all equal in their advancements;" and in another of which, after devising to Mrs. Margaret Preston his mansion house, and declaring that she is to take and hold it as a gift from her mother, made to her as a testimony of her love and affection for her while she lived, he declares that "Margaret is to have this exclusive of her equal portion of my estate, and is not to be charged with its value." Our conclusion is, that an intention to adeem the devise of the converted land is not apparent from the will. It is also contended that the testator sold the 199 acres of the Piedmont land for the purpose of paying his attorneys fees and other expenses, amounting to about $6,000, incurred in a suit between him and Todd's heirs, concerning the Elleslie farın, which he also devised to Mrs. Margaret Preston, and that therefore he intended to adeem the devise by selling the land. What weight this argument would have been entitled to if the debt had been a charge upon the Elleslie farm we need not decide, because it was a general debt, which if not paid by the testator would have fallen upon the residuary. which he directed to be equally divided between his heirs af ter the payment of debts. It might perhaps have been doubtful whether a sale of the 199 acres, to pay that debt, would, alone, have sufficed to show an intention to adeem the devise. But we need not decide that question for two reasons: 1. We are not satisfied that the land was sold for that purpose. The testator's letters show that he owed other debts to a large amount, which he was anxious to pay before his death. He did not direct a sale of so much of the Piedmont land as would pay said $6,000, but authorized a sale of all of it "lying over Slate creek," being about 500 acres and worth over $12,000. At the same time the agent was authorized to sell various other lands. The testator's object was to raise money enough to pay all his debts by selling so much of the 500 acres Wickliffe's Executors vs. Preston et ux. and of the other lands just referred to, as would suffice to pay them all, including the $6,000. The land authorized to be sold appears to have been worth more than the debts. The agent was not directed to sell the Piedmont land in preference to the other land. He was to sell any tract for which he could find a purchaser at a fair price. And there is reason to believe that, if enough of the other lands had been sold to pay all the debts, including the $6,000, the testator would not have sold the Piedmont land. 2. The testator's first letter to his agent, concerning the sale of the Piedmont land, was dated Feb. 5, 1858. In that letter he did not speak of the $6,000 debt, but said: "I shall be so hard run for money that I must sell something." In a letter to the same agent, dated Feb. 12, 1858, after stating that he had gained his suit with Todd's heirs, he said: "The charges of my lawyers upon me are excessive, and I must, through the coming year, spare as much from my expenses as will extinguish their fees." The supposition that he intended to make Mrs. Margaret Preston pay those fees would, in our opinion, be inconsistent with this letter, which evinces an intention on the part of the testator to relieve not only her, but his estate, from any loss on that account, by reducing his expendi tures. The judgment is affirmed. Willis et al. vs. Vallette. CASE 26-PETITION EQUITY-APRIL 14. Willis, &c. vs. Vallette. Bowler, &c. vs. Same. Ogden, &c. vs. Same. APPEALS FROM THE FAYETTE CIRCUIT COURT. 1. There is no distinction, as to the notice necessary to bind a purchaser, between cases which do not come within the operation of the registry acts and those which do. 2. Implied or presumptive notice may be equally effectual with direct and positive notice; but then it must not be that notice which is barely sufficient to put a party upon inquiry. Suspicion of notice is not sufficient. The inference of a fraudulent intent affecting the conscience must be founded on clear and strong circumstances in the absence of actual notice. The inference must be necessary and unquestionable. 3. The general doctrine is, that whatever puts a party upon inquiry amounts in judgment of law to notice, provided the inquiry becomes a duty, as in the case of purchasers and creditors, and would lead to the knowledge of the requisite fact by the exercise of ordinary dilligence and understanding. 4. Where the party has had actual notice that the property in dispute was, in fact, charged, incumbered, or in some way affected, he is bound with constructive notice of facts and instruments, to a knowledge of which he would have been led by an inquiry after the charge, incumbrance or other circumstance affecting the property of which he had actual notice. The proposition of law upon which this class of cases proceeds is, not that he had notice of a fact or instrument, which, in truth, related to the subject in dispute, without his knowing that such was the case, but that he had actual notice that it did so relate. 5. Constructive notice is established where there is satisfactory evidence that the party had designedly abstained from inquiry for the very purpose of avoiding notice. Not that he had incautiously neglected to make inquiries, but that he had designedly abstained from such inquires for the purpose of avoiding knowledge. 6. If there is not actual notice that the property is in some way affected, and no fraudulent turning away from a knowledge of tacts which the res gestae would sug gest to a prudent mind-if mere want of caution, as distinguished from fraudulent and wilfull blindness, is all that can be imputed to the purchaser-there the doctrine of constructive notice will not apply; but the purchaser will in equity be considered a bona fide purchaser without notice. 7. A purchaser is legally chargeable with notice of an unrecorded lien, though he have no knowledge of its existence, if he have notice, actual or constructive, of the contents of the instrument giving the lien, though, under a mistake of the law, he may have supposed there was no lien. 8. Quere. Does the term "income bond" import any thing more than a bond payable out of income? And does a bond of a railroad company, payable out of its in Willis et al. vs, Vallette. come, and without other words importing a pledge of its income or property give a lien thereon? 9. An agent is only chargeable with constructive notice of those facts which he would have been led to a knowledge of by performing his duty according to the reg ular course of business. 10. The general rule is, that a purchaser without notice is not affected by notice to his vendor. This rule applies in favor of a purchaser of a bond secured by mortgage, (without a transfer of the mortgage,) from one who had notice of a prior incumbrance. 11 It is well settled in equity, with reference to debts secured by mortgage, that the debt is the principal thing and the mortgage a mere incident thereto; that a transfer of the debt passes the mortgager's interest in the mortgage property; and that his transfer of the mortgage, without the debt, passes nothing. (5 N. Hamp., 420; 2 Cowen, 195; 19 John., 325.) 12. Notice to an agent of the purchaser is constructive notice to the principal, and notice to the trustee is notice to the beneficiary. The notice must, however, be in the course of the transaction in which he is acting on behalf of the principal--otherwise it will have no legal or necessary connection with the latter. So, notice to a trustee, made long before the execution or contemplation of a mortgage to him, of a prior incumbrance, will not affect the cestui que trust. (2 Lead. Eq. Cases, Am. Ed., 106, 116-17.) 13. Facts before the court at the time of the original trial furnish no ground for a new trial, even if the decision upon them has been erroneous. 14. See the opinion for a statement of facts held insufficient to show that a subsequent holder under a recorded mortgage had either actual or implied notice of a prior incumbrance upon the property HUNT & BECK and FINNELL & CHAMBERS, for appellants. BUCKNER and ROBINSON & JOHNSON and GEO. ROBERTSON, for appellees. JUDGE BULLITT DELIVERED THE OPINION OF THE COURT: In July and November, 1854, and February, 1855, the Covington and Lexington Railroad Company issued certain bonds, called by them, and by persons dealing in them, income bonds," of which the following is a specimen: "The Covington and Lexington Railroad Company acknowledges itself indebted to Samuel J. Walker or bearer in the sum of five hundred dollars, negotiable and payable at the Paris Branch of the Northern Bank of Kentucky, five years after date, bearing interest from date at the rate of 10 per cent. per annum, payable semi-annually on the first day of May and November, at the said Bank, on the delivery of the proper coupon, being part of an authorized issue of $200,000. For Willis et al vs. Vallette. the redemption of this certificate, and the payment of the interest, the property, rights, credits and income of said company is irrevocably pledged. In witness whereof," &c. None of these bonds were secured by any recorded deed. A number of them were sold to various persons prior to March, 1856. In June, 1855, said company executed a mortgage, which was duly recorded, to J. Winslow, trustee, to secure the payment of certain bonds, called by persons dealing in them "third mortgage bonds," the company having made two previous mortgages. In March, 1856, and afterward, the appellee, Vallette, purchased a number of said third mortgage bonds. In a suit brought by one Winslow against Vallette and others, the road and other property of the company were sold for payinent of its debts, under an order of the court below, and a contest arose between holders of "income bonds," and Vallettee, as the holder of "third mortgage bonds," concerning their rights to priority of payment out of the proceeds of the company's property. The court below having decided that Vallette was entitled to priority, Willis and other holders of "income bonds" filed petitions for a new trial, upon the alleged ground that, after the term at which the decision was rendered, they had discovered material evidence which they could not with reasonable dilligence have produce at the trial. This appeal was taken from an order dismissing those petitions. 1. The principal question is, whether or not the newly discovered evidence is sufficient, in connection with that produced on the original trial, to show that Vallette, when he purchased the "third inortgage bonds," had notice of the sale of the income bonds, and of the fact that the holders thereof had a lien on the property of the company. For the appellee it is contended that there is a distinction, as to the notice necessary to bind a purchaser, between cases which do not come within the operation of the registry acts and those which do; that, in the former, constructive or implied notice may suffice, whilst in the latter there must be clear and undoubted proof of actual notice; that this doctrine. |