Atl. Rep. 940). Upon an assignment by a debtor to an assignee, under the insolvent debtor's act, of real estate which has been held by the assignor under a written lease, the terms of which have not expired, the assignee has a reasonable time in which to determine whether or not he will adopt the terms of the lease, and whether or not such leasehold can be made available for the benefit of creditors. Where he adopts the terms of the lease he is chargeable with rent for the time he cccupies the premises. Rand v. Francis, 168 Ill. 444 (48 N. E. Rep. 159). Where an assignee has property bid off at his sale in the name of another without the latter's knowledge or consent, and by a subsequent speculation with him and others realizes an advance on the property, he will be held chargeable to the estate for the profits so realized. In re Allison's Estate, 188 Pa. St. 555 (38 Atl. Rep. 1036). A defeasible fee held by a debtor may be sold at his assignee's sale. Trimble v. Shawhan, Ky. (41 S. W. Rep. 546). Ohio Rev. Stat. § 6351-sale by assignee-payment of liens and distribution of proceeds-amended, Laws 1898, p. 132.

Sec. 89. Right of purchaser at an assignee's sale to assail prior incumbrance for fraud. The grantee of a purchaser at an assignee's sale in insolvency proceedings cannot avoid a mortgage placed upon the property before the assignment by the insolvent debtor, upon the ground of fraud or want of consideration in the inception of the mortgage, where the assignee advertises the property for sale subject to the mortgage, accepts bids on such condition, and by consent of the court sells accordingly. New Prague Milling Co. v. Schreiner, 70 Minn. 125 (72 N. W. Rep. 963). The court say: "The creditors of the insolvent are not complaining, and, if the mortgage is to be avoided, it would seem a matter of justice that they should be the ones to have the proceeds, and not a mere purchaser who took with notice of the incumbrance and that the property was sold subject to it. It seems to us as a sound principle of public policy that such purchasers at an assignee's sale ought not to be permitted to speculate upon claims of this kind; that the assignee should not allow the interests or rights of creditors to be jeopardized by an uncertain method of notice of sale, whereby he might sell valuable

property of the insolvent for a mere trifle, with fraudulent incumbrances thereon, and then let the purchaser avoid the sale and enjoy the proceeds, with but little consideration paid therefor, and creditors be thereby deprived of their just dues. From the facts appearing in this case it seems clear that the assignee elected to treat the mortgage as a valid lien notwithstanding its fraudulent character as to the creditors of the mortgagor, and, having thus affirmed it, it stands good as between the parties to it. See Freeland v. Freeland, 102 Mass. 477; Twite v. Stephens, 98 Mass. 307; Bean v. Brackett, 34 N. H. 122; Taylor v. Taylor, 74 Me. 582. The purchaser at the assignee's sale under the notice of sale took the land charged with the incumbrance of the mortgage as expressly as though he had the payment of the debt himself. While not personally liable for the debt, the land is chargeable with the incumbrance, and he cannot be allowed to set up a defense as to its validity. Jones, Mortg. (4th Ed.), § 736."

BONA FIDE PURCHASER.

EPITOME OF CASES.

Sec. 90. As to what constitutes-General principles. A purchaser of land has a right to rely upon a recorded title and takes the land free from any other equities of which he has no notice. Hume v. Hopkins, 140 Mo. 65 (41 S. W. Rep. 784). Where a claim to real estate can be sustained only upon the ground that the person asserting it is a subsequent purchaser in good faith such person is required to show affirmatively that he purchased without notice of the equities of another, and relying upon the apparent ownership of his grantor. Pfund v. Valley Loan & T. Co., 52 Neb. 473 (72 N. W. Rep. 480). One claiming protection against prior equities as a bona fide purchaser must show that he acquired his title and parted with his money before he received notice. of the equity of his adversary. Peay v. Seigler, 48 S. C. 496

(26 S. E. Rep. 885; 59 Am. St. Rep. 731). A bona fide mortgagee has all the rights of a bona fide purchaser. Kentucky Bldg. & Loan Ass'n v. Kister, Ky. (41 S. W.

Rep. 293). One who takes a mortgage to secure a pre-existing debt is not a bona fide purchaser, but one who takes a conveyance in satisfaction of a pre-existing debt is a bona fide purchaser. Adams v. Vanderbeck, 148 Ind. 92 (45 N. E. Rep. 645; 47 N. E. Rep. 24; 62 Am. St. Rep. 497). Where a deed of trust is given to secure a debt, in consideration of a definite extension of the time of its maturity, the grantee will be treated as a bona fide purchaser for value as to prior equities of which he had no notice. Randolph v. Webb, 116 Ala. 135 (22 So. Rep. 550). Ga. Code § 5355, construed and appliedright of bona fide purchaser in possession for four years to relief from judgment liens. Hale v. Robertson, 100 Ga. 168 (27 S. E. Rep. 937).

Sec. 91. As to what constitutes-Particular cases. A purchaser of negotiable bonds, issued by a corporation and secured by a trust deed of its property, who has no notice of any defect in its title, will be treated as a bona fide purchaser, as against a creditor of the grantor of such corporation who has the conveyance to it set aside as fraudulent. Lebeck v. Ft. Payne Bank, 115 Ala. 447 (22 So. Rep. 75). Where it is agreed between a plaintiff in a divorce proceeding and his attorney, that the latter is to have one-half of the alimony recovered, for his fee, a mortgage taken by such attorney, after the decree, on land awarded the plaintiff as alimony, to secure the performance of such contract, does not make the attorney a bona fide purchaser, as against the defendant in the divorce proceedings, who afterwards has the decree for alimony set aside for fraud. Klaes v. Klaes, 103 Ia. 689 (72 N. W. Rep. 777). Where an original progenitor of a manufacturing enterprise, who agreed with the citizens of a town to erect a manufacturing plant of a certain capacity in consideration of the donation of certain lands and money by them, subsequently as a stockholder in a corporation organized to carry out such agreement, takes a mortgage upon the donated real estate to secure the repayment of money claimed to have been advanced by him, he is not a bona fide purchaser, but

takes subject to the conditions upon which title to the land was to be acquired. Fay & Egan Co. v. Brown, 96 Wis. 434 (71 N. W. Rep. 895). One purchasing land and taking a quitclaim deed therefor from a former owner while the land is in the adverse possession of another, against whose title there is nothing inconsistent upon record, is not a bona fide purchaser as to such adverse claimant. Jones v. Brenizer, 70 Minn. 525 (73 N. W. Rep. 255). Particular case in which one is held to be a bona fide purchaser as to a prior claim of homestead. Weaver v. Saffold, 101 Ga. 150 (28 S. E. Rep. 118).

Sec. 92. Purchasers at execution or judicial sales. A judgment creditor who purchases in good faith at a sale made under his judgment, will be treated as a bona fide purchaser. Sternberger v. Ragland, 57 O. St. 148 (48 N. E. Rep. 811). Citing, Foorman v. Wallace, 75 Cal. 552; Evans v. Mc Glasson, 18 Ia. 150; Butterfield v. Walsh, 21 Ia. 97 (89 Am. Dec. 557). A stranger who in good faith purchases at a judicial sale, made under a judgment regular on its face, will be treated as a bona fide purchaser, and the sale is not avoided by a subsequent reversal or setting aside of the judgment. Branley v. Dambly, 69 Minn. 282 (71 N. W. Rep. 1026). The assignee of a certificate of sale issued to a purchaser under a judicial judgment or decree, is not a bona fide purchaser. Bruschke v. Wright, 166 Ill. 183 (46 N. E. Rep. 813; 57 Am. St. Rep. 125). An assignee or vendee of one who purchases under an erroneous decree in his own favor, stands in the position of his vendor, and a subsequent reversal defeats his title. Such assignee or vendee is not entitled to protection as a bona fide purchaser without notice and for value. Singly v. Warren, 18 Wash. 434 (51 Pac. Rep. 1066; 63 Am. St. Rep. 896). Citing, Bryant v. Fairfield, 51 Me. 145; Marks v. Cowles, 61 Ala. 299; Corwith v. Bank, 15 Wis. 317. One who purchases land at a foreclosure sale in good faith, pays the price, and takes a certificate of sale, is not affected by the subsequent notice of adverse rights though received before the execution of the sheriff's deed. Duff v. Randall, 116 Cal. 226 (48 Pac. Rep. 66; 58 Am. St. Rep. 158). Applying Tex. Laws 1876, p. 114, § 85, providing that

an executor or administrator's conveyance shall vest in the purchaser the right and title that the testator or intestate had, it is held that a purchaser at an administrator's sale holding under a conveyance of "all the right, title and interest" of the estate in certain described lands, without warranty, is a bona fide purchaser for value, as against the holder of the unrecorded title. White v. Dupree, 91 Tex. 66 (40 S. W. Rep. 962). Particular evidence held competent and sufficient to show that one claiming as a purchaser under an execution sale was not a bona fide purchaser. Cottle v. Simon, 153 N. Y. 403 (47 N. E. Rep. 815).

Sec. 93. Pendente lite purchasers. A defendant in an action for partition, who purchases the interest of other defendants having notice that the plaintiffs were claiming advancements had been made to his grantors, takes the land subject to set off on account of these advancements. Finch v. Garrett, 102 Ia. 381 (71 N. W. Rep. 429). Applying Cal. Civ. Code, §§ 2925, 2950, it is held that a purchaser from one holding under an absolute deed which is rendered a mortgage by his separate defeasance, the latter not being recorded, without notice that the grant was intended as a mortgage, acquires the title free from the equity of the original grantor; and the fact that foreclosure proceedings have been begun under such deed, does not constitute constructive notice to such purchaser where no lis pendens has been filed, in view of Code Civ. Proc. 726, providing that in foreclosure cases no lien is created by the proceedings until the docketing of a deficiency judgment. Carpenter v. Lewis, 119 Cal. 18 (50 Pac. Rep. 925). See Liens.

Sec. 94. Purging equities-Knowledge sufficient to put one on inquiry. A bona fide purchaser may transfer a good title to one having notice of equities affecting it. Paul v. Kerswell, 60 N. J. L. 273 (37 Atl. Rep. 1102); Buck v. Foster, 147 Ind. 530 (46 N. E. Rep. 920; 62 Am. St. Rep. 427). Where a fraudulent grantee has been deprived of his title by an execution sale, he may acquire a good title by a subsequent purchase from the purchaser at such sale. Dimock v. Ridgeway, 169 Mass. 526 (48 N. E. Rep. 338).