concurring.
When this question was first presented I was strongly inclined to the opinion that by the words “ bona fide” in this section of the Code, we must understand, not only “really” and “honestly,” but without notice of the judgment. I was led to this by the consideration that equity will not permit one who buys with notice of an incumbrance, to hold the estate free from it. FTo man can be said to act bona fide who» knowing of a lien, seeks to take advantage of the incumbrance by. getting the legal title. It is a species of fraud, an attempt to get property from one who the buyer knows has not, in good conscience, the right to sell it.
But upon further reflection, I am satisfied that the equitable doctrine I have referred to has no application to the case provided for by this section of the Code. The words bona fide, as here used, must be taken in their ordinary signification, and to interpolate into the language used, the words “ without notice,” is a violation of the spirit and *261meaning of the law. If it were provided that a bona fide purchaser of property under .a judgment lien should take it free from the lien, if a bona fide purchaser for value acquired by his purchase an unincumbered title to the property, then the words bona fide might be fairly understood to include within their meaning “ without notice;” since it would be grossly unjust, and would be aiding in a fraud- to permit a purchaser with full notice of a judgment to buy free from its lien. But this section of the Code makes no such provision. By our law, a purchaser, with or without actual notice, takes nothing by his purchase as against any judgment liens upon the property. He always buys subject to such liens, whether he knows of them or not. The law presumes notice from the record, and it is absurd to say that a purchaser of such property is not bona fide unless he buys without actual notice, since, so far as the judgment creditor’s right to sell the property is concerned, it is wholly immaterial whether the purchaser is without actual notice or not. The holder of the judgment has the same right to levy and sell as before, even if the purchaser be wholly ignorant of the lien. Indeed, to interpolate the words “without notice” into this section of the Code, as explanatory of the words bona fide, is to make the statute wholly nugatory; since in this sense of the words bona fide there can be no such a purchaser of property subject to a judgment lien. The law presumes notice, and it is, by the equitable rule we have alluded to, just as much mala fides to buy without inquiring at the record office as to buy with actual notice. The object of this section is not to alter in the least the right of the judgment creditor; his lien is as good as ever it was. The purchaser has not hurt him, and there can, therefore, be no mala fides as to the judgment creditor in the matter. Notice of the judgment has, therefore, nothing to do with it, one way or the other, unless, perhaps, it may be used as evidence, to give color to other acts, and *262show that the purchase was a sham or not a purchase at all, of the entire property.
The only effect of this section of the Code upon the creditor is not to alter in the least his right of lien, but to say to him, if the debtor, really, bona fide, sell the property for a valuable consideration, and the purchaser takes possession, you must assert your lien within four years, or lose your lien. You shall not stand by, knowing that one has really bought the property, (and his possession is full notice) and wait until the seller has become insolvent, and the purchaser has no means of indemnifying himself, and then assert your lien.
The object of the section is not to prevent the fraudulent purchase of property subject to judgments, (that cannot be done in this State) but to prevent the holders of judgment liens from using them to defraud third persons. Indeed, that was in substance the declared intent of the Act of 1822, for which this section is a substitute; and the object of the Act is the key to the meaning of these words. The purchase must be bona fide. It must be real, not a sham. It must be a purchase of the whole. The buyer must think he is getting the estate without any real drawback. It must be a purchase of the property entire, and not a purchase avowedly with the burden of the lien to follow it. The purchaser, too, must.take possession, let the world know that a claim adverse to that of the defendant is set up. Unless this be done the lien of the judgment continues indefinitely, as though there had been no sale.
It is a matter of common observation, that this sort of purchases are an every day occurrence. Defendants in judgments are often persons of large means; and nothing is more common than to buy property knowing that there are judgments against the defendants, and yet, with the utmost good faith, to pay a full price, without any thought of the judgment. As it is a general lien in this State upon all the property, real and personal, wherever found, of the defendant, *263one feels that, if he leave abundance in the hands of defendant to pay the judgments, he may safely buy; and men do this, as we all know by every day’s observation, without the least fear, and without a thought of mala fides as to the judgment creditor.
It is significant, too, that in this section the words “ bona fide ” only are used, while it is almost invariably true that the Codifiers, when they mean to make notice an element in the matter, are careful to add to the words bona fide the other words and, “ without notice,” (see sections 1765, 1768, 1942, 1949, 2228, 2303, 2323, 2590, 2548, 2589, 2608, 2620, 2697, 2743, 3037, 3064.) Whilst there are, so far as I have observed, but two instances in which they have used the words in the sense which includes “ without notice,” to-wit: 2597, 2748; and both these sections refer to negotiable securities, in reference to which the words “ bona fide ” has acquired a technieal signification by common usage.