The Chancellor delivered the following opinion:
In the decision of this cause it is not necessary to inquire how the contract between Milby, on the one side, and Tufft and Budd, on the other, originated. Enough is admitted in the several answers to show that a contract was made, and that the conveyance of the several parcels of land in Sussex County was completed by the execution of the three several deeds made by Milby to Tufft and Budd, in January and March, 1817, and delivered, according to Milby’s answer, to Budd, on the 19th of the same month of March. Tufft says that the deeds made in January were delivered to Budd in January, and that the deed of the 12th March was delivered to Budd in March. No controversy can exist in relation to these deeds. They were properly acknowledged and were recorded in due time; and the complainants rest their claim upon them, and these defendants admit them, in their answers, in the fullest extent. Indeed all the parties in this cause make title under them.
It is alleged in the bill and in Milby’s answer that Tufft and wife conveyed to Budd, on the 22nd of the same month of March, his two undivided third parts of the said several parcels of land, in fee, and that Budd thus became seised of the whole of these lands. Tufft in his answer denies that he and his wife, or that he alone, on March 22,1817, or at any other time, ever executed any deed or deeds of any description to Budd, or to anyone on his behalf, for conveying his interest or estate in the said lands; and he avers that if any such instrument is in existence, or if there ever were any such, purporting to be a deed to that effect, it never was his deed, but that the same was fraudulently made and used as such. He also says that he reproached Budd for inducing him to purchase these lands, and that Budd, after excusing himself, and professing his sincerity in this business, “proposed to take the whole of the Sussex lands, and to give others in New Jersey in exchange, and equal in value to his stock of dry goods.” This was after Tufft had been into Sussex and viewed the lands, and before the delivery of the two deeds made in January.
Afterwards Tufft went to Jersey to view Budd’s lands there, and an exchange was agreed on, and Tufft and Budd signed a short note or memorandum in writing stating the agreement to be of the effect and purport mentioned, which memorandum was left with Budd. Finally Budd failed, and no exchange was made. Then it became an object with Tufft to secure and preserve the deeds made by Milby. This is Tufft’s account of the transaction in relation to the exchange said to have been made by him and [146]*146Budd. When we consider this answer (although it positively denies that Tufft made any deed to Budd) and the testimony of MdQvaine, Brick and Townsend, I cannot resist the conclusion that Tufft did make such a deed to Budd.
In his answer he speaks of his dissatisfaction with the purchase, and of his discontent with Budd in influencing him to make it. Budd, on being reproached by Tufft, proposed to take the whole of the Sussex lands, and to give in exchange others in New Jersey equal to his stock of dry goods bartered with Milby. The offer pleased Tufft, and he gladly assented to it. Milby about this time went to Philadelphia, and the two first deeds were delivered to Budd, and afterwards the third; and it may be fairly inferred that this arrangement was the cause that the deeds were delivered to Budd. Milby says, in his answer, that Tufft refused to receive them, and proposed that other deeds should be prepared and executed, so that the whole of the premises should be conveyed to Budd. This was properly refused by Milby, and then Tufft requested him to deliver them to Budd, and observed that he was going to 'Jersey. Tufft says that he did go to Jersey with Budd, and was satisfied with the quality of the lands there, but that the title was defective, and that there were liens on them. Budd promised to convey them clear of all incumbrances, and to make a good title. On these terms Tufft agreed to convey all his interest in the Sussex lands; and he and Budd signed an agreement in writing to this effect, which was left with Budd.
So far the answers of Tufft and Milby substantially agree; and it is evident that Tufft relied upon the Jersey lands to repair the loss which he supposed he had incurred by his purchase of Milby; and the delivery of the deeds to Budd, with the knowledge and approbation of Tufft, may be considered as his act, carrying into execution the contract with Budd. Tufft, it is true, assigns no reason for the delivery of the deeds to Budd, and he speaks of their delivery at different times, but I take the fact to be that they were all delivered at the same time, in March, and that the contract between him and Budd was the cause that he did not receive them. This, as he paid almost the whole consideration, and owned two-thirds, is the only rational mode of accounting for their delivery to Budd. Thus, according to Tufft, the matter rested till March, 1818, when Budd became insolvent.
But Joshua Brick (who knows nothing of a conveyance by Tufft to Budd of the two-thirds of the lands in Sussex) in his answer to the second cross interrogatory says that he understood from Budd (which information from Budd is introduced [147]*147for the better understanding what the witness speaks of his own knowlédge) that the consideration of said deed (Tufft to Budd for the two-thirds) was certain lands in Cumberland and Gloucester that Budd had exchanged with Tufft for his two-thirds of the Delaware lands. And then, the witness, speaking of his own knowledge, says, “There was included in the bounds of the land sold or exchanged as above mentioned by Wesley Budd, certain land owned by me, and it was necessary for Budd to obtain a conveyance from me to give John Tufft a title, which conveyance I made to Budd. I suppose this circumstance occasioned the conversation with Budd. I afterwards saw the deed from Budd to Tufft.”
So far, as to the defect in the title of the Jersey land, the answer of Tufft and the testimony of Brick correspond; and Brick goes further, and says that he did convey land to Budd to enable him to complete Tufft’s title to the Jersey land, and that he afterwards saw the deed from Budd to Tufft. Now this all sa agrees with the contract which Tufft says that he made with Budd, that it is difficult to withhold one’s assent to the allegation that Tufft conveyed his two third parts of the Sussex lands to Budd. Budd’s purchase of Brick can be accounted for fairly enough in this way; and then the deed from Budd to Tufft, which. Brick says that he afterward saw, would naturally follow. Tufft has stated no part of this transaction.
Isaac Townsend, in answer to the tenth interrogatory, says, that some time in the year 1820 (it may be 1821 in the deposition, for the last figure is blotted) in a conversation with John. Tufft, on the subject of a general arrangement with Busti and Vanderkemp, Tufft told this witness that he had given some kind, of a writing to Budd respecting the lands in Delaware, but denied its being a deed. They were then speaking about the said, lands, and the witness mentioned to him that it was said he had given Budd a deed for them. In the course of this conversation,. Tufft observed that the witness knew very well he had not realized much out of the lands in Jersey, which he got of Budd, and he thought he ought to have considerable out of the lands in Delaware. Tufft here admits that he had obtained land in Jersey of Budd.
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The Chancellor delivered the following opinion:
In the decision of this cause it is not necessary to inquire how the contract between Milby, on the one side, and Tufft and Budd, on the other, originated. Enough is admitted in the several answers to show that a contract was made, and that the conveyance of the several parcels of land in Sussex County was completed by the execution of the three several deeds made by Milby to Tufft and Budd, in January and March, 1817, and delivered, according to Milby’s answer, to Budd, on the 19th of the same month of March. Tufft says that the deeds made in January were delivered to Budd in January, and that the deed of the 12th March was delivered to Budd in March. No controversy can exist in relation to these deeds. They were properly acknowledged and were recorded in due time; and the complainants rest their claim upon them, and these defendants admit them, in their answers, in the fullest extent. Indeed all the parties in this cause make title under them.
It is alleged in the bill and in Milby’s answer that Tufft and wife conveyed to Budd, on the 22nd of the same month of March, his two undivided third parts of the said several parcels of land, in fee, and that Budd thus became seised of the whole of these lands. Tufft in his answer denies that he and his wife, or that he alone, on March 22,1817, or at any other time, ever executed any deed or deeds of any description to Budd, or to anyone on his behalf, for conveying his interest or estate in the said lands; and he avers that if any such instrument is in existence, or if there ever were any such, purporting to be a deed to that effect, it never was his deed, but that the same was fraudulently made and used as such. He also says that he reproached Budd for inducing him to purchase these lands, and that Budd, after excusing himself, and professing his sincerity in this business, “proposed to take the whole of the Sussex lands, and to give others in New Jersey in exchange, and equal in value to his stock of dry goods.” This was after Tufft had been into Sussex and viewed the lands, and before the delivery of the two deeds made in January.
Afterwards Tufft went to Jersey to view Budd’s lands there, and an exchange was agreed on, and Tufft and Budd signed a short note or memorandum in writing stating the agreement to be of the effect and purport mentioned, which memorandum was left with Budd. Finally Budd failed, and no exchange was made. Then it became an object with Tufft to secure and preserve the deeds made by Milby. This is Tufft’s account of the transaction in relation to the exchange said to have been made by him and [146]*146Budd. When we consider this answer (although it positively denies that Tufft made any deed to Budd) and the testimony of MdQvaine, Brick and Townsend, I cannot resist the conclusion that Tufft did make such a deed to Budd.
In his answer he speaks of his dissatisfaction with the purchase, and of his discontent with Budd in influencing him to make it. Budd, on being reproached by Tufft, proposed to take the whole of the Sussex lands, and to give in exchange others in New Jersey equal to his stock of dry goods bartered with Milby. The offer pleased Tufft, and he gladly assented to it. Milby about this time went to Philadelphia, and the two first deeds were delivered to Budd, and afterwards the third; and it may be fairly inferred that this arrangement was the cause that the deeds were delivered to Budd. Milby says, in his answer, that Tufft refused to receive them, and proposed that other deeds should be prepared and executed, so that the whole of the premises should be conveyed to Budd. This was properly refused by Milby, and then Tufft requested him to deliver them to Budd, and observed that he was going to 'Jersey. Tufft says that he did go to Jersey with Budd, and was satisfied with the quality of the lands there, but that the title was defective, and that there were liens on them. Budd promised to convey them clear of all incumbrances, and to make a good title. On these terms Tufft agreed to convey all his interest in the Sussex lands; and he and Budd signed an agreement in writing to this effect, which was left with Budd.
So far the answers of Tufft and Milby substantially agree; and it is evident that Tufft relied upon the Jersey lands to repair the loss which he supposed he had incurred by his purchase of Milby; and the delivery of the deeds to Budd, with the knowledge and approbation of Tufft, may be considered as his act, carrying into execution the contract with Budd. Tufft, it is true, assigns no reason for the delivery of the deeds to Budd, and he speaks of their delivery at different times, but I take the fact to be that they were all delivered at the same time, in March, and that the contract between him and Budd was the cause that he did not receive them. This, as he paid almost the whole consideration, and owned two-thirds, is the only rational mode of accounting for their delivery to Budd. Thus, according to Tufft, the matter rested till March, 1818, when Budd became insolvent.
But Joshua Brick (who knows nothing of a conveyance by Tufft to Budd of the two-thirds of the lands in Sussex) in his answer to the second cross interrogatory says that he understood from Budd (which information from Budd is introduced [147]*147for the better understanding what the witness speaks of his own knowlédge) that the consideration of said deed (Tufft to Budd for the two-thirds) was certain lands in Cumberland and Gloucester that Budd had exchanged with Tufft for his two-thirds of the Delaware lands. And then, the witness, speaking of his own knowledge, says, “There was included in the bounds of the land sold or exchanged as above mentioned by Wesley Budd, certain land owned by me, and it was necessary for Budd to obtain a conveyance from me to give John Tufft a title, which conveyance I made to Budd. I suppose this circumstance occasioned the conversation with Budd. I afterwards saw the deed from Budd to Tufft.”
So far, as to the defect in the title of the Jersey land, the answer of Tufft and the testimony of Brick correspond; and Brick goes further, and says that he did convey land to Budd to enable him to complete Tufft’s title to the Jersey land, and that he afterwards saw the deed from Budd to Tufft. Now this all sa agrees with the contract which Tufft says that he made with Budd, that it is difficult to withhold one’s assent to the allegation that Tufft conveyed his two third parts of the Sussex lands to Budd. Budd’s purchase of Brick can be accounted for fairly enough in this way; and then the deed from Budd to Tufft, which. Brick says that he afterward saw, would naturally follow. Tufft has stated no part of this transaction.
Isaac Townsend, in answer to the tenth interrogatory, says, that some time in the year 1820 (it may be 1821 in the deposition, for the last figure is blotted) in a conversation with John. Tufft, on the subject of a general arrangement with Busti and Vanderkemp, Tufft told this witness that he had given some kind, of a writing to Budd respecting the lands in Delaware, but denied its being a deed. They were then speaking about the said, lands, and the witness mentioned to him that it was said he had given Budd a deed for them. In the course of this conversation,. Tufft observed that the witness knew very well he had not realized much out of the lands in Jersey, which he got of Budd, and he thought he ought to have considerable out of the lands in Delaware. Tufft here admits that he had obtained land in Jersey of Budd. This testimony confirms the testimony of Joshua Brick,, and leaves no doubt that Budd did convey land in Jersey toTufft, and if it were not in exchange for the Delaware lands, it is extraordinary that Tufft has not explained the transaction and shown how, and on what account, Budd conveyed it to him. . It is pretty evident that this conveyance from Budd to Tuft grew out of this contract about the conveyance of the Sussex lands to Budd, and connected as it is with their agreement, it seems to be[148]*148an execution by Budd of his part of the contract, and begets a violent presumption that Tufft has at some period performed his part of the contract, especially when the testimony of Joseph Mcllvaine is considered.
Joseph Mcllvaine,
who drew the trust deed, in answer to the fourth interrogatory, says that that deed was drawn by him from papers or documents put into his hands by Budd, and his belief is that the said papers or documents were part of the original title deeds, but his memory does not enable him to state their contents or import, either in regard to the parties, or any other particular whatever. The trust deed recites correctly the deeds made by Milby and wife to Tufft and Budd, and from them is copied into that deed the metes and bounds of the several parcels of land, and then it recites that “the said John Tufft and Mary, his wife, by deed dated the 22nd March last past, released and conveyed all his part or share therein to the said Wesley Budd.” I do not consider this recital made by Budd, by itself, as evidence of such a deed; but when it is connected with the testimony of Mr. Mcllvaine, and is corroborated by the testimony of Mr. Brick and Mr. Townsend, it goes very far to satisfy me that Mr. Mcllvaine actually had such a deed before him.
Now, from the whole of this evidence, I think that I am warranted in concluding that Tufft did convey his two-thirds of the lands in Sussex to Budd. It is not so easy to ascertain the precise day of this conveyance, but it may well have been made on or about the 22nd of March. They began their negotiation about the exchange of lands in January, their titles in the Sussex lands were completed by the delivery of all the deeds for them in March, and on or about the 22nd of that month the contract may have been and, most likely was, consummated. Tufft’s confidence in Budd had been fully re-established before Milby carried the last deed to Philadelphia in March. But if Tufft never made any such deed, why should he not still make it? Budd purchased land of Brick to perfect his title in the lands which [he] was to convey to Tufft, and he has since conveyed them to Tufft; and Tufft, by his own agreement, is now bound, if no deed has hitherto been made by him, to carry into effect his part of the contract. It is no reason to say that, because he did not realize much out of the Jersey land, he should retain the lands in Delaware.
The next question arises on the deed said to have been made by Budd and wife to Jones. It bears date the 31st March, 1817, a few days after the delivery of the last deed made by Milby and wife to Tufft and Budd. It was made in Jersey, where it was acknowledged on the day of its date before Eli Budd (one of the [149]*149subscribing witnesses) a judge of the Inferior Court of Common Pleas in Cumberland County. He could have executed his office nowhere but in Jersey, and from this circumstance it is evident that this instrument of writing must have been signed and sealed in New Jersey. The consideration mentioned is $26,000. This writing was recorded in Sussex March 3, 1819, after the date of the deed made by said Benjamin Jones to Arthur Milby. The complainants object to this deed, for they say that after it was signed and sealed by Budd it was not delivered to Jones, nor to any one on his behalf, but remained in the possession of Budd, and that the contract which gave rise to it was rescinded by Budd to Jones; and that afterward it was by mistake delivered to Jones about March 18, 1818, subsequent to the execution of the trust deed; that the deed remained in Jones’s hands unrecorded, and that he never caused it to be recorded, but that it was recorded at the instance of Arthur Milby.
For the better understanding this part of the cause, the following is the chronological order of the several deeds or instruments of writing introduced into it, with the dates of their acknowledgments, proofs, and being recorded in Sussex County:
January 2, 1817. Two indentures. Arthur Milby and Sophie, his wife, to John Tufft and Wesley Budd, acknowledged the same day before Elias Lofland and David Hazzard, two justices of the peace of Sussex County.
March 12, 1817. Indenture. Same grantors to the same grantees, acknowledged the day of its date before the same justices of the peace. These three deeds were delivered on or before March 19, 1817, and were recorded September 9, 1818. The originals are produced here in court and are admitted by all the parties.
March 22,1817, is said by the complainants to be the date of a deed, Tufft and wife to Budd, for two third parts of the lands and premises conveyed by Milby and wife in the aforesaid three deeds. I refer to the observations heretofore made respecting this deed.
March 31, 1817, is the date of the deed, Budd and wife to Jones. Recorded, March 3, 1819.
June 24, 1817. Bond and warrant of attorney, Budd to Busti and Vanderkemp; penalty, $115,672, conditioned to pay $57,836 in four annual instalments, with interest. The originals are produced and are proved by the subscribing witnesses.
July 21, 1817. Trust deed, Wesley Budd and Sophie, his wife, to Paul Busti and J. J. Vanderkemp. This deed con[150]*150veys the lands in Sussex and several parcels in New Jersey. It recites the above bond, dated as of June 23, 1817. Consideration is said debt and fifty cents. Acknowledged the day of its date before J. Mcllvaine, a Master in Chancery, in New Jersey. It recites the three deeds, Milby and wife to Tufft and Budd, and that Tufft and wife by deed dated March 22, 1817, then last past, released and conveyed all their parts or shares of said lands in Sussex to Budd. On this deed are indorsed the memoranda made by Busti and Vanderkemp, allowing Budd to sell all said lands and pay the proceeds to them. Recorded in Sussex, October 27,1817. The original deed is produced here in court, and has been proved by the subscribing witnesses in virtue of a commission issued by this Court.
March 18,1818. A copy certified by Benjamin, a notary public, of a deed dated March 18, 1818, Budd to Benjamin. This is Budd’s assignment for the benefit of his creditors. This deed was proved before the Mayor of Philadelphia, March 24, 1818, by Andrew Jones, one of the subscribing" witnesses. The original is not produced nor any office copy. This copy is not evidence.
December 15, 1818. Deed. Benjamin Jones and Mary, his wife, to Arthur Milby. Consideration, $7000. This deed is for all the lands in Sussex County which Milby and wife conveyed to Tufft and Budd. Acknowledged December 16, 1818, before Robert Wharton, Mayor of Philadelphia, and recorded in Sussex County, January 7, 1819. This has not been proved by the witnesses, or by any of them in this cause. These are all the deeds or instruments which it is necessary here to state. Some others are referred to or mentioned, which, upon examination, afford no light in this cause.
The deeds, Budd and wife to Jones, and Jones and wife to Mil-by, were made by persons out of the state, and the execution of neither of them has been proved in open court in the county where the lands lie, in the manner required by the Act of the General Assembly for acknowledging and recording deeds, 1 Del.Law 219, s. 3; neither have they, or either of them, been proved by one or more of the witnesses, thereto, before the Justices of the Court of Common Pleas or any mayor, chief magistrate, or officer, of the city, town, or county, where they were made and executed, and certified accordingly, as is required by the Supplement to the said Act of the General Assembly, 1 Del.Laws, 308 s. 1; neither have they been proved by any witness examined [151]*151in this cause; and, if the objection had been taken, and no admissions made as they have been, they could not have been read in evidence. No power is given to any judge or mayor out of the state to take the acknowledgment of deeds for the conveyance of lands. His only authority is to take the proof of the execution, and he is confined to that, or at least his authority does not exceed that, and every thing else is coram non judice. This difference was made because it is easier to personate a supposed grantor out of the state, than falsely to procure witnesses to prove the execution of a deed; and to prevent forged deeds being put on record.
In the case of Richards et al. v. Judge and Lipple, in Sussex County, March 14, 1825, a deed acknowledged before the Mayor of Philadelphia and certified under the seal of the City, but not proved before him by one or more of the witnesses, was not allowed to be read in evidence in the Court of Chancery in that county. I have been led into these observations from some remarks in Milby’s answer touching some of the papers in this cause. Here, though all difficulty about the deed of Budd and wife to Jones is removed by the admission of the complainants in the bill; for they acknowledge that about March 31, 1817, Budd signed and sealed the said deed, but they say that it was not delivered to Jones until about the 18th March, 1818, and then, that it was delivered by mistake or inattention.
As the signing and sealing is admitted, and as Jones was in possession of the said deed and gave it up to Milby, the mistake in delivering it should have been proved. The possession is prima facie evidence that it was delivered according to its import and to the apparent intention of the parties. Milby in his answer does not admit the allegation of the complainants as to the execution of this deed. He says that at the time of his purchase he was ignorant of the manner in which the complainants allege that Jones obtained the possession of the deed. And as to the deed, Jones to Milby, the complainants say that after Jones had obtained said deed of Budd, he was induced, under the color of title apparently given him by the said deed, to convey said eight tracts of land to Arthur Milby, without consideration, or for a very trifling sum. Enough is admitted to allow both of these deeds to be received in evidence. Their effect in this cause is another matter.
This deed of Budd to Jones, it appears from the face of it, was made in Jersey. It is dated within ten or twelve days after Mil-by’s deeds had been delivered to Budd. It was secreted between Budd and Jones from its date until a short time before Jones [152]*152made his deed to Milby. Busti and Vanderkemp might well have supposed, when they took the trust deed, if they had previously ever heard or knew of this deed, that the contract upon which it was founded had been annulled, and that the deed itself could have no operation. Mcllvaine, though so much concerned in the business relating to the Sussex lands, had no knowledge of it. Cooper never heard of it until after the deed of trust was made (answer to second interrogatory).
And long after the date of said deed, and a short time previous to the trust deed, Budd represented himself to this witness as owner of said lands, and never mentioned any conveyance of them to Jones, or to any other person; and at the same time he offered to sell them as his property. And the witness knows, he says, that Budd represented the said lands as his property to the complainants when he conveyed them by the trust deed. And two or three days after Budd’s failure this witness had a conversation with Jones, in which he mentioned to Jones Budd’s offer to sell certain lands of Jones to the witness, and Jones said he had authorized Budd to make the offer and to sell his lands, and he mentioned certain lands which he had taken as a security from Budd, all which were situate in New Jersey, and Jones said nothing about the lands in Delaware. Here was a plain fraud attempted by Budd on Cooper, and not discouraged by Jones, if either designed to avail himself afterward of the deed made by Budd to Jones; and that such would have been the result, could that deed have been brought into operation, may be judged of by this present controversy.
Isaac Townsend says, in answer to the eighth interrogatory, that Jones told him he considered this deed as of little or no value, and therefore he had not put it on record. He stated that he knew of the conveyance to Busti and Vanderkemp; that knowing of this conveyance, he had never put the deed on record. And in answer to the ninth interrogatory, this witness says that Budd told him that he made said conveyance to answer certain purposes, and that he never received any consideration therefor; but he did not state what the purposes were. And Budd further said that the papers were taken out of Jones’ hands to make the conveyance to Busti and Vanderkemp.
These declarations of Budd and Jones, and the facts they disclose, when brought distinctly into view, and when they are connected with the conveyance to Milby, present a gross and palpable case of fraud in Budd and Jones. First, the deed was concealed from its date until after the conveyance made to Busti and Vanderkemp, and a little previous to the conveyance to Milby; [153]*153and its origin, no doubt, was fraudulent. Secondly, Budd represented these lands as his own property, when he conveyed it to complainants. Thirdly, Jones knew of the conveyance to Busti and Vanderkemp, and therefore he did not record the deed, but he stood by and saw that conveyance made, or knew of it, without uttering a syllable against it; and with all this knowledge he had the hardihood to make a deed for these lands to Milby.
A conveyance obtained by fraud is the same in equity as if no conveyance had ever been made. 1 Vem. 443, 445. So if a person having a right to an estate, permit, or encourage a person to buy it of another, such purchaser shall hold against him who has the right. 1 Eq.Cas.Abr. 356, pl. 8, 10. Even a silent permission is sufficient for a court of equity to prevent such person from exercising his legal right. There is no principle better settled than that a court of equity will not permit a person who has stood by and seen or known a person to purchase property without objection, afterward to set up a claim to wrest that property from him. See the cases referred to in 1 Madd.Ch. 209, 210 etc.; Wendell v. Van Renselaer, 1 Johns.Ch. 344; Heginbotham v. Burnet, 5 Johns.Ch. 184.
Milby admits in his answer “that, before he made the purchase of said Benjamin Jones, he had been informed that a writing purporting to be a trust or mortgage deed from the said Budd and wife to the complainants for the lands and premises aforesaid, and purporting to bear date on the 21st July, 1817, had been placed on the record in the office for recording of deeds in and for Sussex County; but he says that at the time of his purchase he was ignorant of the manner in which complainants allege that Jones obtained the deed of Budd of the 31st March, 1817, and that if the same remained in possession of Budd after its date, he was never informed of it until he found it so stated in the bill of complaint, and therefore he says that he is a purchaser for a valuable consideration without notice.
Milby has not denied that he had notice of the trust deed; but suppose he had only been informed that a writing purporting to be that deed had been recorded, as he states, in Sussex County, — that was enough. It was sufficient to put him upon an inquiry. In Smith v. Low, 1 Atk. 489, Lord Hardwicke says, what is sufficient to put the party upon an inquiry is good notice in equity. And in Sterry v. Arden, 1 Johns.Ch. 261, Chancellor Kent delivered the same opinion. As to Milby’s ignorance of the manner in which the complainants allege that Jones obtained the deed of Budd of the 31st March, 1817, and that if the same remained in the possession of Budd after its date, he was never in[154]*154formed of it until he found it so stated in the bill of complaint, it was of no consequence that [he] should have been previously informed how, or in whatever the complainants alleged these facts. The facts themselves were the important matters, and when Milby was apprised that Budd’s deed to the complainants was recorded in Sussex County, he had all the information necessary for a prudent man to search into the title and to guard against that deed, if he chose to make the purchase. He took his title under Jones, vitiated with the fraud of concealment and of the knowledge Jones had of the conveyance to Busti and Vanderkemp, and with Jones permitting them to take that deed without any objection, or even intimation to them that he had title to. said lands by a prior, good and subsisting conveyance; whereas he might have avoided the purchase, if he had made the inquiry which the information he received should have led to, and which a prudent man, not speculating in titles, would have done.
I have not noticed all that the depositions state of Milby’s. knowledge of this transaction. Much of it is hearsay and therefore has not been taken into consideration. What the witnesses, prove of their own knowledge of the declarations of Budd and Jones, as to facts stated by them in relation to themselves, is competent testimony.
Let the decree direct Tufft to convey to the complainants two. undivided third parts of said lands and premises in Sussex County; that Milby convey to complainants all his estate in said lands and premises; and that he account for the rents and profits since March 19,1817, and for all wood, timber and trees cut upon said premises and sold or carried off for sale since the day aforesaid; and that he state and show in said account all payments made by Tufft and Budd, or by either of them, on account of the purchase of said lands and premises, and the balance still due to him. of the purchase money, if any. (Was any coal burnt?)
The decree is to reserve to the Chancellor to make further and other decree, etc. This may be to deliver possession. The land must be held as security for any balance of purchase money that may be found due to him.