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RIGHT TO SUPPORT OF ADJOINING

trained for trespassing from the River Thames on the uninclosed adjoining lands.

A man who sells part of his land cannot so deal with that which he retains as to expose what he has granted to risk or to cause it to fall, but the extent of the support to be left must depend on the circumstances of each case. If a house is sold with all lights belonging to it, and it is intended to build upon the adjoining ground belonging to the same owner, so as to interfere with the lights, the right to build in that manner should be expressly reserved. The purchaser would not be bound by a description of the house, as abutting upon building-ground belonging to the seller.

Without attempting here to tell you how you may exercise your rights of property generally, I may take this opportunity of observing that, as a general rule, the several owners of adjoining closes are each entitled to the lateral support of the other's close, and neither can justify excavating his soil, so that the adjoining land would be without support. But if you were to erect a house on the confines of your land, your neighbour might afterwards dig his land near to your foundation, but not so as to touch your land, and you would be remediless although your house should fall down; but if your neighbour, with knowledge of your building, allowed it to stand for twenty years it seems that he could not afterwards do any act to disturb it, nor could he at any period justify excavating his ground negligently so as to occasion the fall of your house.

As to mines if you grant the surface of your land to another, reserving the mines, the grantee will have a prima facie right to the support of the subjacent strata ; and the reservation by you of the usual powers to work the mines, with an agreement to pay for damages, will not

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destroy the grantee's right to the support of the minerals. So if you let or grant your minerals, but retain the surface, your right to support will in like manner remain. But in either case the grantor may expressly reserve or grant any extent of right to damage the surface, which may be found necessary in working the mines. The same principle applies where distinct floors in the same house are occupied by several owners. If you were to demise or sell to another the lower story of your house, and reserve to yourself the upper story, you would have the right to the continued support of the lower floor.

As to water, you may sink a well on your land, and divert by pumps and steam-engines, if you think proper, the underground water, which would otherwise percolate the soil, and flow into the river, although there is on the banks of the river a mill which has been worked by the river for more than sixty years.

52

PURCHASE OF EQUITABLE RIGHTS.

LETTER VIII.

I HAVE still some directions to give to you in regard to Cautions upon a Purchase.

Where you purchase any equitable right, of which immediate possession cannot be had-for instance, money in the funds, standing in the names of trustees, in trust for a father for life, and after his decease for his son; and you buy the son's interest during the father's lifetime, you should, previously to completing the contract, inquire of the trustee, in whom the property is vested, whether he has had notice of any encumbrance. If the trustee make a false representation, equity would compel him to make good the loss which you may sustain in consequence of the fraudulent statement. When the contract is completed you should give notice of the sale to the trustee. The notice would certainly affect his conscience, so as to make him liable in equity should he transfer the property to any subsequent purchaser; and would also give you a preferable title to any former purchaser or encumbrancer who had neglected the same precaution. The safest course, however, is to prevail upon the trustee, if you can, to join in the assignment to you, or, if he decline to join, to allow you to endorse on his settlement a memorandum of the assignment to you.

If you should purchase, with notice of the claim of another, although he has not a conveyance, and you actually procure the estate to be conveyed to you, yet you will be bound in equity by the notice; for it is a

NOTICE TO PURCHASER.

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general rule in equity that a purchaser with notice is bound to the same extent, and in the same manner, as the person was of whom he purchased. I will give you an instance of this: You know that I have lent Tompson £1000, and that he has agreed to secure it by a mortgage upon his estate. Now this gives me merely an equity, that is, a right to call upon him in a court of equity to execute a mortgage to me. Till that is done the entire ownership at law remains in him. If you should purchase the estate from him before the mortgage is executed, without notice of my loan, you would hold the estate discharged from it; for by the conveyance you would get the legal estate, and by the contract the equitable estate; so that having both law and equity on your side, you would prevail over me who have equity only. For it is a rule, never departed from, that a bond fide purchaser for a valuable consideration, and without notice, shall not be affected in equity. This has been carried so far, that a purchaser in early times was allowed to take advantage of a deed relating to the estate, which he stole out of a window by means of a ladder. I could hardly, however, advise you to be so bold at the present day. But in my case, as you have notice of the loan, you would be bound by it, although you procure the legal estate, and equity would accordingly compel you to execute a mortgage to me pursuant to Tompson's agreement. In all these cases, therefore, you should stop your hand.

Notice, I must observe, before payment of all the purchase-money, although it be secured, and the conveyance actually executed, or before the execution of the conveyance, notwithstanding that the money be paid, is equivalent to notice before the contract.

It is not necessary that you should have express notice; for instance, in my case it is not essential that

54

NOTICE TO PURCHASER'S ATTORNEY.

you should actually see and read Tompson's agreement with me; for equity holds many acts to amount to constructive notice to a purchaser; and constructive notice is equally binding with actual notice. Against some of these you cannot guard by any precaution; but there is one of which I must warn you. Notice to your counsel, attorney, or agent, would be notice to you, for otherwise, to use Lord Chancellor Talbot's words, a man who had a mind to get another's estate might shut his own eyes, and employ another to treat for him, which would be a manifest cheat. And the same rule prevails, although the counsel, attorney, or agent, be the vendor, or be concerned for both vendor and purchaser. The notice, however, must be in the same transaction, because, as Lord Chancellor Hardwicke observed, if this were not the rule of the Court it would be of dangerous consequence, as it would be an objection against the most able counsel, because of course they would be more liable than others of less eminence to have notice, as they are engaged in a great number of affairs of this kind.

It can seldom happen that your attorney, or agent, has notice of any encumbrance on an estate which you intend to purchase, unless he is employed by the seller as well as by you. Attorneys are frequently employed on both sides, in order to save expense. This practice has been discountenanced by the Courts, and is often productive of the most serious consequences; for it not rarely happens, that there are encumbrances on an estate which can only be sustained in equity, and which will not bind a purchaser who obtains a conveyance without notice of them. Now, as I have just mentioned, notice to your agent, although concerned for the vendor as well as for you, is treated in equity as notice to you; and there