The  distinction,  which  is  taken  in  terms  by  Sir  Edward  Sugden,  (1  Vend.  &
Pur.  vol.  3,  p.  4  72,  ed.  10,)  is  fully  borne  out,  by  the  cases  which  decide  that  a
person  purchasing  without  obtaining  the  title-deeds,  is  not  affected  by  notice  of
an  equitable  mortgage  ;  Plumb  v.  Flint,  Bicknell  v.  Evans ;  by  Lord  Thurlow's
judgment  in  Cothoy  v.  Sydenham ;  by  a  judgment  of  Lord  Hardwicke  and
other  cases  referred  to  in  the  judgment  in  Jones  v.  Smith.  If  that  distinction
be  not  admitted  in  a  case  like  Jones  v.  Smith,  the  unavoidable  consequence
must  be  that  a  man  who  mortgages  a  fraction  of  his  estate,  will  thereby  throw  a
cloud  upon  the  title  to  the  rest  of  his  estate ;  and  a  devise  of  a  single  acre  of
land  by  a  will,  which  does  nothing  more,  will  throw  a  cloud  upon  the  title  of  an
heir  at  law  to  his  descended  estates ;  for  it  is  clear,  that  neither  the  mortgagor
in  the  one  case,  nor  the  heir  in  the  other  can  command  the  production  of  the
mortgage-deed  or  will ;  and  it  is  equally  clear  that  nothing  but  the  production
of  the  original  itself  would  be  sufficient,  if  a  representation  such  as  Smith  relied
upon  be  not  sufficient.  Similar  observations  would  apply  to  a  codicil  partially
revoking  a  will,  and  to  every  deed  executed  after  the  date  of  a  will.  In  short,
let  the  doctrine  of  constructive  notice  be  extended  to  all  cases,  in  which  the
purchaser  has  notice  that  the  property  is  affected,  or  has  notice  of  facts  raising
a  presumption  that  it  is  so,  and  the  doctrine  is  reasonable,  though  it  may  some-
times operate  with  severity.  But  once  transgress  the  limits  which  that  state-
ment of  the  rule  imposes — once  admit  that  a  purchaser  is  to  be  affected  with
constructive  notice  of  the  contents  of  instruments  not  necessary  to,  nor  pre-
sumptively connected  with  the  title,  only  because,  by  possibility,  they  may  affect
it  (for  that  may  be  predicated  of  almost  any  instrument)  ;  and  it  is  impossible,
in  sound  reasoning,  to  stop  short  of  the  conclusion,  that  every  purchaser  is
affected  with  constructive  notice  of  the  contents  of  every  instrument  of  the


334.
