(dissenting) :
I am constrained to adhere to a view of this case entirely opposed to that taken by the majority of the court, and shall review the cases presented in the petition for the appeal and as argued by counsel here.
The case was formerly before this court, at which time the court, without passing upon the merits of the case, decided that the court below should have directed the complainant to amend her bill so as to make The National Bank of Commerce a party defendant. 102 Va. 837, 47 S. E. 820. When the case went back the bill was so amended and the bank made a party. It answered, stating its connection with the note in question, which it had at one time held as collateral; denied knowledge *757of the fraud alleged, or that it received any part of the proceeds of the sale made by L. B. Allen, trustee. Depositions were taken, the ease reheard, and on February 25, 1905, the court held that there was no liability on the bank, and as to other parties made the same decree which was entered at the previous hearing. From this decree the case is again before us on appeal, but no error is assigned to the decree so far as it decides that there is no liability on the bank, and therefore the case upon its merits is the same as to the parties concerned, other than the bank, that it was on the former appeal.
It will be necessary to restate the principal facts of the case, which may be summarized as follows:
By deed bearing date on the 10th day of December, 1892, Samuel Wasserman and wife conveyed to L. B. Allen, as trustee, certain real estate in Norfolk, Virginia, in trust to secure to appellee, Sophia Metzger, two negotiable notes of even date with the deed, each for the principal sum of $1,250.00, and bearing interest at the rate of six per cent, per annum, from December 26, 1892, and payable, respectively, one and two years after date.
By deed dated March 20, 1893, the said Samuel Wasserman and wife conveyed the property to Louis Wasserman for certain considerations, part of which was the assumption by Louis Wasserman of the payment of the above-mentioned notes.
In January, 1902, one P. J. Morris, representing himself to be the holder of one of the above-mentioned notes, and the president of the National Bank of Commerce, representing that this note was held by it as collateral for an indebtedness of P. J. Morris to the bank, informed L. B. Allen, as trustee in the deed of December 10, 1892, that default had been made in the payment of the said note, and directed him to sell the prop*758,erty under said deed of trust, as thereby required, to satisfy the debts secured. .
The trustee, L. B. Allen,, having satisfied himself that the conditions had arisen tinder which he was required to execute the- trust, advertised, the property for sale, as required by the deed,= for at least ten days in the Norfolk Landmark, a newspaper of large circulation, printed in the. .city of Norfolk, and pursuant to. said advertisement, on the 21st day of January, 1902, at.the Beal Estate and Stock.Exchange of Norfolk,.sold the property at public auction, to the said P. J. Morris for $2,200 cash. .He accordingly conveyed the property to P. J. Morris by deed, bearing date the 21st .day of January, 1902, and acknowledged on the 23d day of January, 1902.
In this deed the trustee made the following recital: “And whereas the said S. Wasserman having made default in the payment of said notes, the holder thereof had directed that the said property be sold by said trustee, as .provided by said deed.”
The “said notes” referred to in this' recital were identified by the previous recital in the deed as the notes secured by the said deed of trust.
By deed bearing date the 25th day of January, 1902, P. J. Morris and wife conveyed the- property to certain trustees to secure to the Mutual Building Association of Norfolk $2,000, money borrowed. By deed bearing date the 30th day of January, 1902, P. J. Morris and wife sold and conveyed the property to David Ilalberman, as trustee for Bikchen Wasserman, for $2,400, she assuming as part of the purchase money the above-mentioned lien of $2,000. Mrs. Wasserman fully complied with the terms of her purchase, and her deed went to record on the 31st day of January, 1902.
The bill filed by Mrs. Metzger claims that she was the holder of one of the notes secured by the deed of trust to Allen, trus*759tee; that she had received from the trustee on the note only $995.47, .leaving a balance due as of February 20, 1902, of $334.93; that the note -which P. J. Morris and the Matronal Bank of Commerce represented themselves as holding had, in fact, been paid long before the trustee, Allen, had. been requested by them to sell; that she knew nothing of the sale, which .was therefore void as to her; and praying that .the series of deeds above mentioned since the trust deed of December 10, 1892, he set aside, and the property subjected t,o pay the balance due her.
The decree appealed from grants the prayer of the hill; that is to say, it sets aside as null and void all deeds made conveying the property in question since the deed to Allen, trustee, of December. 10, 1892, and subjects the property to the payment of the balance claimed by Mrs. Metzger as being due to her on the second note secured by said deed of trust.
The proof in the cause discloses that Mrs. Metzger has been continuously living in Morfolk since the deed to Allen, trustee, was made, as'were her grown sons (who were business men), all during the period the property was being advertised by the trustee for sale and at the. time it was sold; she- did not, however, go upon the witness stand to prove she knew nothing about the sale or the advertisement. It is practically conceded that the note held by Morris had been paid prior to the direction to the trustee to sell the property; but it clearly appears from the proof that Mrs. Wasserman, the purchaser of the property from Morris, had no notice or knowledge whatever pf this fact, and before receiving such notice she had purchased for a valuable consideration, and had practically paid the entire purchase money and received a conveyance of the property. It further appears that while Mrs. Wasserman had been the wife of Samuel Wasserman, who, doubtless, participated in *760the fraud perpetrated by Morris when he caused the property to be advertised and sold by Allen, trustee, she had lived apart from him for many years, and finally and before any of the transactions connected with the sale and purchase of this property, had secured from him an absolute divorce. There is not the slightest evidence in the record that Mrs. Wasserman had actual notice of the fraud and wrong-doing complained of in this case, and as expressly found by the lower court as a fact “Mrs. Wasserman had no actual notice of the fraud of Morris and Sam Wasserman, nor of the irregularity of the sale.” She had employed counsel to examine the title, and counsel employed, after investigation, reported to her in favor of the title and she thereupon consummated the transaction.
It will be observed, therefore, that the fraud complained of is that the note on which the direction to Allen, trustee, to sell had been given, had in reality been paid; and the fact that the sale was made pursuant to the request of a holder of a paid note is the irregularity relied on by the complainants in the court below. It will also be observed that Mrs. Wasserman was not the purchaser from the trustee, but was the purchaser from that purchaser. Were the controversy here between Mrs. Metzger and P. J. Morris, the purchaser from the trustee, it would, be of easy solution, since the fraud of Morris is made so apparent that he would have no standing whatever in a court of equity.
The question, therefore, to be determined is whether a purchaser from a purchaser who bought at a trustee’s sale has com structive notice that the recitals made by the trustee in his deed to the purchaser are false. The court below practically held such to be the ease; and this is the only error assigned for a reversal of the decree appealed from.
Upon the face of the deed from Allen, trustee, to Morris there is nothing whatever to suggest irregularity in the sale by *761the trustee, or anything to suggest to a purchaser from Morris that the recitals made by the trustee in his deed were false. We, therefore, have a case where the purchaser from a purchaser at a trustee’s sale is a purchaser for value and without actual notice of fraud or irregularity in the sale made hy the trustee. It is a case of the highest importance to the security ■of titles in this State, and requires the gravest consideration .at the hands of the court.
It has been the law in this State since the case of Taylor v. King, 6 Munf. 365, 8 Am. Dec. 746, that a trustee in a deed to secure debts does not exercise a mere “naked power,” and ■that a deed of such a trustee passes the legal title, even though made in violation of the trust. The opinion in that case, decided in 1819, says: “With respect to the deed in this case, it is not at this day to he questioned that the deed of a trustee conveys a legal title. The trustee himself takes a legal, though defeasible title; and that title became absolute in his vendee hy the deed, in a court of law. We are also of opinion that in a ■court of law the vendee need not show that the conditions of the trust deed have been complied with.” See, also, Underwood v. McVeagh, 23 Gratt. 409; Sulphur Mines v. Thompson, 93 Va. 315, 25 S. E. 232, and authorities there cited.
The case is, however, different with respect to title attempted to he made hy a person clothed with a mere “naked power,” not ■coupled with an interest, for in such a case it is necessary for the person claiming the title to establish the fact that every requisite to the exercise of the power preceded it. Carrington v. Goddin, 13 Gratt. 601; Sulphur Mines v. Thompson, supra.
In the first class of cases mentioned—that of a title made hy a trustee in a deed of trust to secure debts—a Iona fide purchaser for value and without notice of the breach of the trust *762is protected; while in the last class mentioned—that of a sale under a “naked, power”—such a purchaser is not protected. .
It .is not' controverted that in Virginia the legal title passes •by deed of the-trustee, and hence the-title of the purchaser-.is ■perfect at law;-but it is contended that this principle does not govern in a court of equity, and it-has been so held in cases -where the title of the purchaser from a trustee was called in question. To this effect are the cases of Norman v. Hill, 2 P. & H. 676; Brown v. Lambert, 33 Gratt. 62; Loving v. Ashlin, 76 Va. 911.
But that is not the -case here. As remarked, if the controversy was between Mrs. Metzger and Morris it would be proper to set aside the conveyance obtained by Morris from Allen, trustee, because, if for no ofher reason, of the fraud of Morris. But the controversy here involves the right of Mrs. Wasserman to the property, who was in no way connected with or had, knowledge of the fraud of Morris.
If it were conceded that a purchaser from a trustee clothed with not merely a “naked power” to sell, but an absolute power, because coupled with an interest, must see to it that all of the prerequisites to the exercise of the power have been complied with, is this rule to be applied'to a purchaser from a purchaser from the trustee? And if so, would not the rule have to be extended to a purchaser of the same property, however far he may, by intervening conveyances, be removed from the original purchaser from the trustee ? Were such the established rule of law, it will be seen that our registry acts would be of little avail.
In Sulphur Mines Co. v. Thompson, supra, it was held that a trustee clothed only with a naked power, not coupled with an interest and, therefore, not absolute but conditional, would not by his deed invest a purchaser from him with, title unless the conditions existed upon which a sale was authorized, and the *763sale made in accordance with the trust; that the burden of proving these facts was upon the party claiming under the deed, and the recitals in the deed, unless, made so .by statute, were not prima facie evidence of . the existence of such facts. There is nothing, .however, in the opinion that can be construed as extending the rule to a • deed from a .trustee clothed with absolute, not conditional, power to sell; and the only inference to be drawn from the opinion is that where this power is in the trustee his deed invests a purchaser, from him with title, and the recitals in the deed that the prerequisites to the exercise of the power preceded it were to be considered as prima facie evidence of the existence of such facts. It is now so declared by statute, passed February 10, 1898, and amended March 7, 1900 (Code 1904, sec. 3333a), and the rule is made applicable to all deeds made in the execution of a deed of trust, mortgage or any judicial proceeding theretofore or thereafter made. I am not ■ unmindful of the well settled principles relied on by appellee, Mrs. Metzger, stated at p. 508, 23 Am. & Eng. Eney. L., and sustained in Wood v. Krebs, 30 Gratt. 714; Long v. Weller, 29 Gratt. 347, and other cases that might be cited, that a purchaser of real estate must look to the title papers under ■which he buys and is charged with notice of all the facts appearing upon their face, or to the knowledge of which anything there will conduct him; that he has no right to shut his eyes and his ears to the inlet of information and then say he is a bona fide purchaser -without notice; and whenever inquiry is a duty the party bound to make it is affected with knowledge of all which he would have discovered had he performed the duty. But the binding force of the principles maintained by these authorities is to be measured by the facts and circumstances of the particular case to which it is sought to apply the principles.
*764It is said by tbe court below, in its opinion made a part of the record, that although Mrs. Wasserman “had no actual notice of the failure of Mrs. Metzger to direct Allen to sell, she had constructive notice of the trust to Allen and of all of its provisions, and by reason of such constructive notice she knew that Allen could not sell without Mrs. Metzger’s direction, and it was her duty to ascertain by inquiry if such direction had been given.” In this view I cannot concur, and do not think that the authorities cited in support of it sustain the view. They are the authorities to which I have just adverted. If the view be correct as to Mrs. Wasserman the rule must be applied to a purchaser of property once conveyed by a trustee, no matter how far removed from the immediate purchaser from the trustee, and when it would be impossible for him to obtain the information that it is held that Mrs. Wasserman should have obtained before taking her conveyance from Morris. Such a rule, it seems to me, would be attended with baleful consequences to purchasers of real estate in this State.
There is nothing whatever upon the face of the deed from Allen, trustee, to Morris to suggest inquiry as to the validity of the title it conveyed, but let us, for the sake of the argument, admit that it became Mrs. Wasserman’s duty to inquire if the prerequisites of the power in Allen to sell the property preceded the exercise of the power. Of whom was she to make the inquiry ? Surely the inquiry was first to be made of Allen, the trustee, and can it be doubted that he would have told her that the recitals of his deed to Morris were correct? Should she then have doubted Allen’s statement and inquired further; and if so, of whom? Had she inquired of Morris, doubtless he would have told her the same that Allen did, and perhaps have shown her the note in question, either in his possession or Allen’s, past due and not marked paid, in the condition it was *765by reason of tbe failure of Mrs. Metzger to so mark it when she delivered it to Sam Wasserman or to some one for him.
In Carrington v. Goddin, 13 Gratt. 602, the opinion by Mon-cure, P., says: “A bona fide purchaser without notice, from one clothed with a mere power of sale, but who, in making the sale and conveyance, has pursued the terms of the power, is entitled to the same advantage and protection with a purchaser from a trustee invested with the legal title.”
That case is clearly authority for the position that a bona fide purchaser from the trustee invested with a legal title and with an absolute power to sell would be protected, even though' the trustee did not pursue *the terms of his power, and this on the principle that the plaintiff who seeks to upset the title must resort to equity to do so, and equity will withhold its hand whenever the defendant has equal equity and will permit the law to prevail. A court of equity will not disarm a bona fide purchaser for value of his legal estate in favor of one who has a prior equity in point of time.
In Fletcher v. Peck, 6 Cranch (U. S.) 87, 3 L. Ed. 162, Marshall, C. J., says: “If a suit be brought to set aside a conveyance obtained by fraud, and the fraud be clearly proved, the conveyance will be set aside as between the parties, but the rights of third persons, who are purchasers without notice, for a valuable consideration, cannot be disregarded. Titles, which, according to every legal test, are perfect, are acquired with that confidence which is inspired by the opinion that the purchaser is safe. If there be a concealed defect, arising from the conduct of those who had held the property long before he acquired it, of which he had no notice, that concealed defect cannot be set up against him. He has paid his money for a title good at law, he is innocent, whatever may be the guilt of others, and equity will not subject him to the penalties attached *766to that guilt. All titles would be insecure and the intercourse between man and man would be very seriously obstructed, if this principle be overturned.” See also Snyder v. Grandstaff, 96 Va. 477, 31 S. E. 647, 70 Am. St. Rep. 863.
In McClanachan v. Siter, 2 Gratt. 280, the opinion says: “The doctrine that whatever puts a party upon inquiry amounts to notice is inapplicable to the provisions of the statute in regard to both registered and unregistered conveyances. The' registry is not intended to put subsequent purchasers and incumbrancers upon inquiry, but to put an end to the necessity for. all inquiry. It is notice in point of law to all persons of the contents, import and legal effect- of Hie registered instrument; but not of other matters connected with the subject, not apparent upon the face of the instrument. The statute contrasts this notice in point of law with notice in point of fact óf any title' or claim not disclosed by a registered instrument.1 The notice in point of fact must be such as'-to affect the con-' science of the subsequent purchaser or incumbrancer. It may he1 either actual, in other words direct and positive, or it may be circumstantial and • presumptive. But it is not sufficient if it merely puts the party upon inquiry. It must be so strong and clear as 'to fix upon him- the imputation of mala fides. Day v. Durham, 2 Johns. Ch. (N. Y.) 182.
“It is not enough that an ovér-prudent and cautious person, if his attention has been called to the circumstance in question would have been likely to' seek an explanation of it. There must be spme clear neglect to inquire, after actual notice, that the title is in some way defective, or some fraudulent or willful blindness, as distinguished from mere want of caution.” Briggs v. Rice, 130 Mass. 50; Grunders v. Reid, 107 Ill. 304; Woodward v. Page, 5 Ohio St. 70.
• The' reasoning of the learned judge below in his written' *767opinion, and of- the argument here for Mrs. Metzger is that the deed of trust to Allen was a part of the record title, and as it provided that he was to sell when directed by a holder of one of the notes secured, this put upon any person who dealt with the property at any time within the period of the statute of limitations on inquiry, and if the trustee committed a technical breach of his trust, although misled by fraud, any person dealing with the property within the period mentioned has constructive notice of the breach and ■ must bear its consequences. This proposition clearly denies the' whole doctrine of innocent purchaser for value as applied to the acts in pais of ■ such a trustee, and according to it every' such purchaser must be affected with constructive notice of the breach of the trust. - Ho distinction is made in the argument for that proposition between a purchaser from the trustee and derivative pur-' chasers; so that any purchaser of the property within the period of the statute must, at his own peril, inquire into and establish • the' fhot, not by prima facie, but by conclusive • proof, that everything' mentioned in the deed as a direction to the trustee-has'in fact been followed. Of the two classes of requirements made by deeds to secure the payment of a debt, one calls for' acts on the part of the- trustee which necessarily involve public notoriety, such as advertising in a prescribed way and for a prescribed time, and that the sale shall be on certain terms of cash or - credit. The other class embraces acts that do not involve notoriety, are essentially private in their nature ‘ and • cannot be inquired into and ascertained, if at all, without the greatest inconvenience in many instances, among which is whether'the holder of the debt has actually directed the sale to' be made. As to the first class of requirements, there seems'to be nothing unreasonable in holding, as was held in the' recent' case of Preston v. Johnson, ante, p. 238, 53 S. E. 1, and-other *768cases, that the purchaser at the trustee’s sale has constructive notice of these requirements, and must see that the advertisement of the sale at which he is bidding conforms to the requirements of the deed, and that the terms of sale are those prescribed by the deed, and there is no hardship on him, nor inconvenience to the public interest, in requiring this simple act of reasonable prudence on his part, the neglect of which would be gross negligence. But these cases go no further than that, and are certainly not authority for the proposition that a subsequent purchaser of this property is to be charged with constructive notice that the creditors secured had not directed the trustee to make the sale he made, or that the debt secured had in fact been paid.
The authorities do not hold it sufficient to affect a person with constructive notice that he might have acquired the information, but that he ought to have acquired it, and would have done so hut for gross negligence on his part.
Says the opinion in Wilson v. Wall, 6 Wall (U. S.) 91, 18 L. Ed. 727: “A chancellor will not be. astute to charge a constructive trust upon one who has acted honestly and paid a full and fair consideration without notice or knowledge. On this point we need only to refer to Sugden on Vendors, where he says: ‘In Ware v. Lord Egmond, the Lord Chancellor Cram worth expressed his entire concurrence in what, on many occasions in late years had fallen from judges of great eminence on the subject of constructive notice—namely, that it was highly inexpedient for courts of equity to extend the doctrine. When a person has not actual notice, unless the circumstances are such as enable the court to say, not only that he might have acquired, but also that he ought to have acquired it but for his gross negligence in the conduct of the business in question. The question, then, when it is sought to affect a purchaser with *769constructive notice, is not whether he had the means of obtaining and might by prudent caution have obtained the knowledge in question, but whether not obtaining it was an act of gross or culpable negligence.’ ”
It is, of course, not to be lost sight of that “means of knowledge, with the duty of using them, are in equity equivalent to knowledge itself”; but means of knowledge are not sufficient. There must, in addition, be the duty of using them.
This court has often declared the principle as to what is required to make it the duty of a person to use his means of knowledge to ferret out undisclosed facts to be that the person must have “knowledge of facts and circumstances which are naturally calculated to excite suspicion in the mind of a person of ordinary care and prudence. Fisher v. Lee, 98 Va. 163, 35 S. E. 441, and authorities cited.
In Williams v. Jackson, 107 U. S. 482, 2 Sup. Ct. 814, 27 L. Ed. 529, there were two deeds of trust to secure debts. The first gave to the trustees power to release the land on payment of the notes. secured, but the payment of the notes was a condition precedent to their power to release. The notes were assigned to a third party by the payee, and, after this was done, the original payee and the trustees united in a release deed. Being assured that the record was clear as to the title of the property which was conveyed in the first deed and which he purposed to loan money upon, Williams loaned the money, taking the second deed upon the property to secure the loan. He had no actual knowledge of the facts connected with the release of the first deed, and the question was whether he had constructive notice, or was entitled to the position of a bona fide purchaser for value without notice. The opinion of the court, citing a number of authorities to sustain the conclusion reached, says: “To charge Williams with constructive notice of the fact *770that the notes (secured by first deed) had not been paid, in the absence of any proof of knowledge, fraud, or gross or willful negligence on his part, would be inconsistent with the purpose of the registry laws, with the settled principles of equity, and with the convenient transaction of business. . . The equity of Williams being at least equal with that of the plaintiffs, the legal title held for Williams must prevail and he is entitled to priority.”
That ease is quoted from and approved in Evans Bros. v. Roanoke Savings Bank, 95 Va. 301, 28 S. E. 323, where there was a release by a marginal entry on the deed book by the original payee of notes secured by a first deed of trust after the transfer of the notes and before they were paid. The question was between the innocent transferee of these notes and an innocent lender of money upon the faith of the record, taking in good faith a trust deed upon the property to secure the money loaned. Held: That the trustee in this second deed obtained the legal title for the benefit of the lender of the money secured, and the lender had a right to rely upon the public record as to the title to the property conveyed; that to charge him with constructive notice that the notes secured by the first deed of trust had not been paid, in the absence of any proof of knowledge, fraud or willful negligence on his part, would be inconsistent with the purpose of the registry laws, with the settled principles of equity, and with the convenient transaction of business.
Since it is conceded in the case at bar that Mrs. Wasserman had no actual knowledge of the failure of Mrs. Metzger to direct Allen to sell, or that her first note had been paid, and especially in view of the fact that both notes secured by the deed to Allen were long past due, what was said in the cases just adverted to applies with equal -force to this case. The *771deed from Allen did not give Mrs. Vasserman notice that the note in question was paid; on the contrary, it advised her that the note was unpaid. So there is nothing whatever upon the face of the deed from Allen, or by way of proof in this record, upon which to rest the imputation to Mrs. Vasserman of means of knowledge to ferret out the undisclosed fact that the note was unpaid, which it was her duty to use, and the neglect to make use of which was gross or culpable negligence, and such negligence is essential to constructive notice. Wilson v. Wall, supra; Williams v. Jackson, supra; Evans Bros. v. Roanoke S. Bk., supra; Bank v. Hannan, 75 Va. 608; McClanachan v. Siter, supra.
Our statute, supra, provides that the recitals made by a trustee in his deed of conveyance “shall be prima facie evidence that such sale was regularly made, and that the other recitals in such deed or conveyance are true.” Is a purchaser from a purchaser from a trustee to be required to disregard the statute and treat the recitals in the trustee’s deed as not prima facie evidence that his sale was regularly made and the other recitals untrue, and if he fails to ascertain all the facts behind the record to be held guilty of gross or willful negligence? I think not. The principle upon which a purchaser for value without notice is protected in a court of equity has its origin in the necessity for one of two innocent persons to suffer, the question being which one. Leaving entirely out of view the fact that Mrs. Metzger made it possible for Morris and Sam Vasserman to defraud her by delivering to one of them the note in question without cancelling it, to hold that Mrs. Vasserman was a purchaser for value without notice would he no greater hardship upon Mrs. Metzger than had to be borne by the losing parties in the cases to which I have referred.
The distinction between the original purchaser at the sale *772under the deed of trust or mortgage and a subsequent purchaser is well recognized in the authorities, and the latter is held to be entitled to protection in the absence of actual notice.
In Wilson v. So. Park Com’rs, 70 Ill. 46, the opinion says: “In this case there are innocent purchasers, and where there are such and the deed executed by the trustee recites a compliance with all such requirements, they are not bound to go behind the deed to ascertain whether or not the recitals are time. This rule is announced in the cases of Reese v. Allen, 5 Gilm. (Ill.) 236, 48 Am. Dec. 336; Cassell v. Ross, 33 Ill. 244; 85 Am. Dec. 270; Hamilton v. Lubukee, 51 Ill. 415, 99 Am. Dec. 562. In such a case the remote purchaser affected must be chargeable with notice. In such cases the person executing the trust deed selects his trustee, and usually conveys to a person in whom he reposes confidence, both as tó his integrity and business capacity, and having reposed the confidence and conferred the power on him to act, if it is abused, he must be held responsible for the improper selection. Even where he authorizes the assignee to execute the power, he must be equally responsible, as he confers the power, and if improvidently done, the innocent must not suffer for his want of prudence, unless they can be charged with notice of the abuse of the power. It would be highly inequitable and imjust to hold otherwise, and would lead to ruinous sacrifice of the trust property, as none but the speculator would purchase, and he at low rates, if the remote purchasers, at every step in the chain of titles, were compelled to collect and preserve the evidence of the regularity of the trustee’s sale.”
To what was there said as to the responsibility of the grantor in a deed of trust, with reference to the character and business capacity of the trustee he selects it may be added, according to the rule prevailing in this state, that the trustee in a deed *773of trust to secure the payment of debt is to be as acceptable to the creditor secured, both with respect to his integrity and business capacity, as to the grantor.
In Hamilton v. Lubukee, supra, it is said: “It is certainly true that the record of the mortgage was notice to them (subsequent purchasers), and that it informed them only of the facts stated in it. It gave them no information of the kind of notice published for the sale of the mortgaged premises, nor of any irregularities which might have been committed in it, nor that the price paid was inadequate. All those were matters in pais, and must be brought home to their knowledge on a proper case made, sustained by proof.”
As opposed to the views taken in the cases above cited, counsel for Mrs. Metzger rely upon a class of cases to which belong Burwell v. Fauber, 21 Gratt. 463, and Long v. Weller, supra, but those cases are easily to be distinguished from the case here. In one of them the purchaser traced his title to a will, and it was held that he was chargeable with constructive notice of that will and what it, disclosed; and in the other the purchaser bought from a special commissioner and he was charged with notice of the decree directing the sale.
So in Wood v. Krebs, supra, it was held that the purchasers under a decree of a court were bound to know all that the suit in which the decree was made disclosed, and could not rely on the certificate of the clerk, that the records of his office disclosed no liens or incumbrances on the property, as sufficient to entitle them to the defense of bona -fide purchasers without notice. In that case, as in Briscoe v. Ashby, 24 Gratt. 454, the purchaser was claiming title under a decree in a chancery cause, and it was held that the case did not come within the registry laws, and that the purchaser was chargeable with notice of what the record in the chancery cause disclosed.
*774Counsel for Mrs. Metzger cite also cases in •which it was held that a conveyance by a trustee in a deed, after the debt it secured was paid, conveyed no title to the grantee, and the principal case is Shippen v. Whittier, 117 Ill, 282, 7 N. E. 642, cited as Temple v. Whittier (Ill.) 7 N. E. 645. It would unduly extend the length of this opinion to state that case fully. Suffice it to say, the opinion shows that the decision turned on three propositions: (1) That there had been a conveyance of the mortgagor’s estate to the mortgagee, and the grantee in that conveyance had extinguished the first deed of trust debt, which • in equity had the effect of a merger; (2) that the trustee who sold and conveyed the property was clothed with only a “naked power,” and a purchaser under a mere “naked power” purchases at the peril of the sale being void if a material condition precedent to the existence of the power does not exist; and (3) that the express provision in the deed, that it should be void if the note it secured was paid, was, in view of the limited power in the trustee to sell, sufficient to impose upon a purchaser of the property the duty of showing the existence of the debt at the time of the trustee’s sale. The court does not evince a disposition to impair as authority its older decisions, which I have cited, and others, and does not even allude to them. On the contrary, the opinion says: “This case is not analogous to those where a title passes which is subject to be defeated on the ground of the fraudulent act of the parties, and in which it is held that a bona fide purchaser without notice is to be protected. In this case no title passed! What appears to be a conveyance is not a conveyance, any more than a deed of a person in no wise connected with the title to the property.”
It is suggested, both in the opinion of the learned judge below and in the argument for Mrs. Metzger here, that the weight of the decisions by the Illinois court is to be lessened by the fact *775that they were actions in ejectment. This is true as to some of them, but not as to all, notably the case of Gunnell v. Cockerell, 79 Ill. 79, which was a bill in equity and a case in point. There the trustee was empowered to sell on demand of one-fourth of the creditors, and was required to give notice of the time, place and terms of the sale. He violated the trust by selling privately to one Caswell, who afterwards sold and conveyed to Howell & Lord. Held: That while a purchaser under a trust deed containing a power of sale is chargeable with notice of defects and irregularities attending the sale and their effect cannot be evaded by him, the rule is different as to remote and subsequent purchasers; that if there is nothing upon the face of a deed from the trustee in a deed of trust to the purchaser showing that the sale was made in violation of or contrary to the power contained in the deed of trust, a subsequent purchaser who has no notice in fact of any irregularity in the sale by the trustee, will be protected as an innocent purchaser. See, also, the more recent case in point, decided by the same court in 1901, of Tennart v. Quilty, 60 N. E. 913.
We are also cited by the learned counsel for Mrs. Metzger to the cases of Kenney v. Jefferson Bank (Colo. App.) 54 Pac. Rep. 404; Bent Oteer Co. v. Whitehead (Colo. Sup.) 54 Pac. Rep. 1023; Penny v. Cook, 10 Iowa 539; Wells v. Estes (Mo.) 55 S. W. 225; and Walker v. Beauchler, 27 Gratt. 511, as sustaining the view taken by the lower court of this case; but I do not consider these cases as authority for that view. In the first named, the purchaser asking protection as an innocent purchaser without notice was clearly not such a purchaser. The second was a case of an immediate purchaser. The third was a case in which the controversy was between the beneficiary in the deed of trust and the grantor, the beneficiary being also the purchaser of the property, and had all possible notice that the *776sale was wrongful. In the fourth, the case was also between the grantor in the deed of trust and a purchaser from the trustee, who was also the beneficiary in the trust deed, and was plainly not a bona fide purchaser. In the fifth, it was merely held that where the debtor was within the Confederate lines and the creditor within the Union lines during the civil war, the former could not pay nor the latter receive the debt, and, therefore, the deed of trust could not be enforced and a sale under it was invalid; that the purchaser from the purchaser at the trustee’s sale could stand in no better condition than the purchaser at the sale, as he was present at the sale and knew as well the circumstances as did the first purchaser; but the decree protected the last purchaser in all respects by restoring the status quo without loss to any one.
In none of the cases to which we have been referred, or that I have been able to find, is the strength of the decisions of this court and others which I have mentioned, and which maintain the principle that in order for Mrs. Metzger to succeed in this' case, upon the proposition under consideration, she must convict Mrs. Wasserman not only of gross negligence, but of bad faith, in the least impaired. The record failing to so convict Mrs. Wasserman, she is in equity as at law to be considered a bona fde purchaser without notice, and as such entitled to protection.
It is contended, however, that she is not a complete purchaser, inasmuch as she has not paid the debt of the Building Association, which she assumed, nor has she the legal title.
The view taken by the majority of the court is, that w’hile the Building Association, to the extent of its lien, is a complete purchaser, having loaned Morris that amount of money and caused the legal title to be conveyed to the trustees in the deed of trust seeuring its debt, and therefore giving it priority *777over Mrs. Metzger’s debt, Mrs. Wasserman cannot be regarded as a complete purchaser because it does not appear that she has paid more than one-sixth of the purchase price she agreed to pay-
I fully agree that to the extent of its lien the Building Association is a complete purchaser, with priority of right over Mrs. Metzger to have its lien satisfied out of the property in question, but cannot agree that Mrs. Wasserman is to be regarded as having paid only-sixth of the purchase money she agreed to pay Morris, and for that reason not entitled to protection as a complete purchaser. True, Morris conveyed to her only an equity of redemption, but in my view this carried with it the right to call for the legal title from the trustees of the Building Association, who, after the (conveyance from Morris to Mrs. Wasserman, held the legal title for her benefit, subject only to the lien in favor of the Building Association. Upon the payment of this lien and its release on the record, the release would not enure to the benefit of Morris or anyone •else other than Mrs. Wasserman. As between her and Morris, her grantor, clearly she stands in the same position as if she had paid him the whole of the purchase money in cash. Moore v. Holcomb, 3 Leigh 527, 24 Am. Dec. 683, 23 Am. & Eng. Enc. L. 489; Jackson v. Glover, 9 Cow. (N. Y.) 13; Partridge v. Chapman, 81 Ill. 137.
Payment in actual cash is not indispensable. It is enough that there is an absolute change of the purchaser’s legal position for the worse. Such a condition is brought about by the undertaking of the purchaser to pay a debt due from his vendor to a third person, in such a manner that he is absolutely substituted as the debtor in the place of his vendor. 2 Pom. Eq., see. 751 and notes.
It is conceded, as it would seem from the argument, that if *778Mrs. Wasserman liad paid in cash,-before notice of Mrs. Metzger’s claim, the whole of the purchase money to Morris, or had she so |>aid the Building Association’s debt assumed by her, she would be entitled to absolute protection as a complete purchaser for value, and I am unable to see that she would have been, in either of those positions, any more entitled to protection than she is now, occupying the position of an innocent purchaser who has paid the purchase price, so far as her vendor is. concerned, and cannot hold the property without the payment of the debt of the Building Association, it not being questioned that the amount she actually paid Morris and the amount of the debt she assumed was a full and fair consideration for the' property.
But let it be conceded, for the sake of the argument, that Mrs. IVasserman cannot be regarded as a complete purchaser: Which has the better equity, Mrs. Metzger or Mrs. Wasserman?' I am of opinion that the equity of the latter is superior to that of the former. Is the manner in which Mrs. Metzger has dealt with her equity to be left out of view ? Surely not. By delivering up the first of the two notes she held when it was paid, without canceling it by endorsing thereon “Paid,” Mrs. Metzger made possible the fraud of Morris, resulting in injury to Mrs. Wasserman, who, as is conceded, is innocent of that fraud; and it needs no citation of authority for the proposition that in such a contest as is here between Mrs. Metzger and Mrs. Wasserman, where one of the two parties is to suffer, the one guilty of no neglect or wrong-doing must be regarded as having an equity superior to that of the other party. It is only where equities are equal that the maxim, “Prior in time, prior in right,” has application. Whether negligence is to be regarded as gross or not, is to be measured by its resulting injury to the party affected. Hot only was Allen, trustee, Mrs. Metzger’s*779agent, for whose acts Mrs. Wasserman was in no way responsible, but had Mrs. Metzger herself not been negligent Mrs. Wasserman would not be in the position she now occupies and have to suffer to the extent, at least, of the amount of the claim asserted by Mrs. Metzger. In my view, the negligence of Mrs. Metzger cannot, under the circumstances, be regarded by a court of equity other than gross, and, therefore, the equity she asserts should not be preferred over that of Mrs. Wasserman.
With reference to the remaining contention of appellants that Mrs. Metzger should be held to have ratified the sale of Allen, trustee, to Morris, by accepting from the trustee a part of the purchase money as a payment on the note she then held, I agree with the opinion of the court that the conduct of Mrs. Metzger, as disclosed in the record, was not such as should estop her on this ground to assert her right to payment of the balance due on that note.
For the reasons stated, I am of opinion that the decree appealed from should be reversed and annulled, and that this court should enter the decree the lower court ought to have entered, dismissing the bill of Mrs. Metzger with costs to appellant.