A TREATISE

ON

EQUITY JURISPRUDENCE,

AS ADMINISTERED IN

THE UNITED STATES OF AMERICA;

ADAPTED FOR ALL THE STATES,

AND

TO THE UNION OF LEGAL AND EQUITABLE REMEDIES

UNDER THE REFORMED PROCEDURE.

BY JOHN NORTON POMEROY, LL.D.

IN THREE VOLUMES.

VOL. II.

SAN FRANCISCO:

A. L. BANCROFT AND COMPANY,

LAW BOOK PUBLISHERS, BOOKSELLERS, AND STATIONERS.

1882.

Entered according to Act of Congress, in the year 1882, by JOHN NORTON POMEROY,

In the Office of the Librarian of Congress, at Washington.

TABLE OF CONTENTS.

§ 578. Rationale.

§ 579. Definition.

SECTION IV.

CONCERNING PERFORMANCE.

$580-583. I. Covenant to purchase and settle or convey.

$580. General rule: Lechmere v. Earl of Carlisle.

§ 581. Forms of covenant to which the rule applies.

§ 582. Special rules.

§ 583. Such covenant creates no lien.

$$ 584-586. II. Covenant to bequeath personal property.

§ 584.

§ 585.

General rule: Blandy v. Widmore; Goldsmid v. Goldsmid.

Limitations on the rule; covenant must not create a debt in life.

time of deceased.

§ 586. A legacy not a performance; distinction between "perform-

ance" and "satisfaction of legacy."

$587. Presumption of performance by trustees.

$$ 588-590.

$$ 589, 590.

§ 590.

Meritorious or imperfect consideration; theory of.

Defective execution of powers, relief of.

Requisites for such relief; a partial execution necessary.

§ 596. When shown by indirect evidence.

§ 597. What constitutes; rumors; putting on inquiry, etc.

$$ 598-602. Special rules concerning actual notice.⚫

§ 605.

$3 606, 607.

§ 608.

Jones v. Smith, opinion of V. C. Wigram.

When the presumption is rebuttable; due inquiry.

When it is conclusive.

§ 609. Species of constructive notice.

§ 625.

Whether the presumption is rebuttable or not.

Possession by a tenant or lessee.

SS 614-625.

§ 614, 615.

S$ 616-618.

§§ 610-613. 1. By extraneous facts; acts of fraud, negligence, or mistake;

general rule as to putting on inquiry; visible objects, etc.

2. By possession or tenancy.

General rules, English and American

Extent and effect of the notice.

§§ 623, 624.

3. By recitals or references in instruments of title.

General rules.

Nature and extent of the notice; limitations; instances, etc.

4. By lis pendens.

Rationale: Bellamy v. Sabine.

General rules; requisites.

To what kind of suits the rule applies.

What persons are affected.

Statutory notice of lis pendens.

5. By judgments.

6. By recording or registration of instruments.

(1) The statutory system; abstract of statutes.

(2) General theory, scope, and object of the legislation.

(3) Requisites of the record in order that it may be a notice.

(4) Of what the record is a notice.

(5) To whom the record is a notice.

Not to prior parties.

To subsequent parties holding under the same source of title;

effect of a break in the record.

(6) Effect of other kinds of notice in the absence of a record.

(7) What kinds of notice will produce this effect.

English rule.

Conflicting American rules; actual or constructive notice.

True rationale of notice in place of a record.

7. Notice between principal and agent.

Scope and applications.

Requisites of the notice.

(1) Notice must be received by agent during his actual employ-

ment.

(2) And in the same transaction; when in a prior transaction.
(3) Information must be material; presumption that it was com
municated to the principal.

Exceptions: Agent's own fraud.

True rationale of this rule.

SECTION VI.

CONCERNING PRIORITIES.

§ 677. Questions stated.

$$ 678-692. First. The fundamental principles.

§§ 679-681. I. Estates and interests to which the doctrine applies.

§ CS2. II. Equitable doctrine of priority, in general.