N.
M’CORMACK v. tunes; 19
gues in general a negligence so gross as to exclude sympathy for the suf-
ferer." 2 Minor, Inst. 988. But, if we shouldiconcede that the deed ,
of trust to Ward was not constructive notice to McCormack, the pur-
chaser, I think the weight of the testimony shows that he knew of the
existence of this lien at the time of his purchase. In no view of the
case can the court regard him as an innocent purchaser without notice,
and thus declare invalid the deed of trust, executed, acknowledged, and
recorded in conformity with all the requirements of law necessary to in-
surethe payment of the debt which the trust was given to secure. To
do so would be to set a precedent in this court that would sanction the
grossest negligence in a purchaser of lands, set at naught the solemn rec-
ords of our registry acts, by testimony resting on the uncertainniemory
of witnesses given 25 years after the record has been made, and to ren-
der uncertain and insecure the highest assurances that debtors can give
for the security of their creditors.
As to the second branch of the second exception, that "David E.
James was cognizant of and participated in the negotiations which cul-
minatedin the sale, and is therefore estopped by his conduct from as-
serting his lien by deed of trust," the charges thus made rest upon the
unsupported testimony of McCormack, plaintiff. The answer of David
E. James, which is re_sponsive to the allegations in the amended and
supplemental bill, denies that he participated in the negotiations for the
sale, and _asserts that McCormack had notice of the lien. The answer
of Hansford James, in response to allegations in the amended bill, says
McCormack had notice ofthe lien of David E. James. The testimony
of the other witnesses is too indefinite in time and circumstances, or
the time fixed as to conversations with McCormack on the subject of the
lien is too remote from the date of sale, to be entitled to much weight.
Fraud, actual or constructive, is the essential and central element (2
Pom. Eq. J ur. § 821) in an equitable estoppel. "Now, the principle oi
estoppel invoked by the appellants to preclude the appellees from setting
up in this case a title in themselves as heirs of Clark, discharged of the
trust, rests upon the ground of fraud." Judge J oYNEs in Bargamirn. v.
Clarke, 20 Grat. 552. Kerr, Fraud & M. 130; 1 Story, Eq. Jur. § 391.
"He who alleges fraud must clearly and distinctly prove the fraud he
alleges." , Kerr, Fraud & M. 382, 383. If the case here stood alone
uponthe testimony of the plaintii}`, McCormack, and the answer of the
defendant, 'James, the answer must prevail, and thecharge of fraud is
unsustained. Id. 398. Thelanguage employed by the defendant, David
E. James, during the negotiations between McCormack and Hansford
James, were we to admit that he used it, could not, we think, amount
to an estoppel, had the equity been a latent, instead of a recorded, lien;
for at that time David E. James had no interest whatever in the deed of
trust, hehavingassigned his interest therein to Henry Horne more than
12 months before. The language attributed to him by McCormack,
which is: " He asked me what was the reason Ijdidnot buy—Hansford’s
land. Said that I must buy it; it wouldenable him to ’buy the
Mitchell Scott land, and pay every dollar be owed in ~the—world%,>*?++-shows