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 *11for 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.