HYNDMAN-JONES CJ

In this suit the plaintiffs asked (a) for a declaration that the first plaintiff or the second plaintiff on his behalf and their executors administrators and assigns are entitled to a right of way along a road and bridge on lot marked No. 18 in the tracing put in; (b) for an order that the defendant do execute a deed of grant of a right of way in favour of the first plaintiff over the said road and bridge; (c) for an injunction to restrain the defendant from doing any act whereby the persons entitled to exercise the said right of way may be hindered or obstructed in the exercise of such right; (d) for such further and other relief as the nature of the case may require.

I understood counsel for the plaintiffs to say that he would be satisfied if he were to obtain the relief asked for in paragraphs (a) and (c).

The agreement of the 15th November 1902 (referred to in paragraph 2 of the Statement of Claim) was put in evidence, as also the draft deed of grant of the 2nd August 1904 approved by the solicitors for LIM CHIN SWEE are also now solicitors for the defendant.

On the 24th August 1904 LIM CHIN SWEE mortgaged the land to two Chitties for whom Messrs. Sission & Delay were also solicitors; and the mortgagees on the 18th July 1905 in exercise of their power of sale, put up the said piece of land for sale, and the defendant became the purchaser.

Copies of correspondence between the plaintiffs' solicitors and the solicitors for the defendant were also put in, and among that correspondence was a letter dated the 21st July 1905 from Messrs. Donaldson & Burkinshaw, the plaintiffs' solicitors, in which they gave notice to the defendant of the existence of the alleged right of way. Subsequently to this notice, the land was on the Ist November 1905 conveyed by the mortgagees to the defendant.

The plaintiffs alleged that the mortgagees before they accepted the mortgage had notice of the plaintiffs' rights under the agreement of the 15th November 1902, both personally and through Messrs. Sisson & Delay; because the knowledge of the solicitor is notice to his client. They also set up the letter of the 21st July 1905, and the receipt of that letter was admitted. The allegations as to notice were denied in the Statement of Defence; and an amendment of the Defence was applied for and allowed claiming priority for the defendant, by virtue of s. 16 of the Registration of Deeds Ordinance 1886, to any deed which might have been registered by the plaintiffs.

I proceed to deal with the question of notice first, and with regard to the Chitties being affected with notice through their solicitors I may say at once that, in my opinion, and having regard to the Conveyancing Ordinance 1886, section 77, the contention fails, first because, after hearing Mr. Delay's evidence, I am unable to impute to him the necessary knowledge, and secondly because, if I could, it would not be "in the same transaction."

With regard to the notice to the Chitties personally, it is necessary to go into the matter somewhat more at length. I had an opportunity of inspecting the locus in quo; and (judging from my own observation and from the viva voce evidence which was put before me in this Court) there are very apparent indications on the land (viz., the substantial road and bridge and a constant passing and repassing of people) which could not fail to be forced on the attention of the most casual observer - much more so of an intended mortgagee or purchaser: and I find therefore that the mortgagees (one of them I must infer was the Chitty alluded to by NEO CHOO HONG) had knowledge of these appearances. It seems to me that if they had this knowledge, they ought as reasonable men to have gone further and made enquiries, and that if they had done this, the circumstances connected with the Agreement by LIM CHIN SWEE would have been brought to light. I hold therefore that they are affected with constructive notice of the agreement. Harvey v. Smit