Eversdon

I dissent from the conclusion that the defendant had notice, actual or constructive, of plaintiff’s equity at the time of his purchase. Upon this point the evidence in the record before us differs materially from that presented on the second appeal. ( 65 Cal. 167 .) And I do not understand it to have been held in that case that constructive notice of the deed to plaintiff’s mother, and of Wasson’s application *11 for patent, was imputed to defendant by reason merely of their existence as records. It was, as I understand the opinion, decided that he bad actual knowledge of these records, and that this was sufficient to put him on inquiry, which would have informed him of plaintiff’s rights. In this record, evidence of actual notice of the deed and application is wanting.

The judgment and order should, in my opinion, be reversed.

This case was affirmed in Department One, and a rehearing granted. We have again given it our careful attention, and are satisfied that the correct conclusion was reached on the former hearing, for -the reasons stated in the opinion of Commissioner Hayne. It was claimed in the petition for a rehearing that the statute of 1868 (Stats. 1867-68, p. 489), referred to and relied upon in the opinion of the learned commissioner *5 as affording notice to the defendant of the plaintiff’s title, was not the one under which the deed of the county judge to Wasson was made. We think counsel are right in this contention, and that the wrong statute was referred to by mistake. But in our opinion this does not materially affect the question of notice. There was a deed of record from one Stafford to Mrs. Wasson, by the name of Ann Watson, before her marriage. This deed showed the conveyance of the property to another than the defendant’s grantor, Wasson, and was sufficient to put him upon inquiry as to the true condition of his title. And the evidence clearly shows that a very slight degree of inquiry and diligence: would have apprised him of the fact that the plaintiff was the equitable owner of…