¶1On hearing, the motion was denied, and the following opinion, delivered by
¶2This case is again before us upon a motion of the plaintiff in error for a rehearing. The ground alleged is, that the court ought to have held Judge Lewis bound to inquire of Miss Eshleman personally in relation to her act in taking the mortgage, and this would have led him to a knowledge of the fraud alleged. We held that a knowledge of Bonsall’s agency in the collection of the debt affected Lewis with a knowledge of Miss Eshleman’s right to treat his purchase as a trust, or to elect to make him her debtor, and this led to the duty of inquiry. The subject of inquiry was therefore Miss Eshleman’s election. When no inquiry -is made, as in this case, the legal duty visits the party with' a knowledge of those facts only which belong to the subject of inquiry. The inquiry was whether Miss Eshleman treated the purchase as a trust, or waived it and accepted the purchaser as her debtor. The facts in evidence distinctly show that she did waive it, and accepted a mortgage as her security for the debt upon which she received interest for a time. Her act was then complete, and ended her apparent connection with the title. Had she been asked herself she could have disclosed no' more. The fraud she now alleges in the concoction of the mortgage is after-discovered, does not disprove her election in fact, but is used to displace'it, not because it was not, but because it ought not, to have been. But when the law imputed to Judge Lewis a knowledge of her right of election, and when the fact disclosed her election, in fairness and justice to purchasers, it would not impute further knowledge of an occult and hidden fact collateral to the inquiry, and which did not remove the fact itself, but must be used to avoid it. Hence with the fact of election,' which was a waiver of the trust,' the duty of inquiry ended and the purchaser would rest; because, beyond the elec*419tion, which dissolved connection with the title, no presumption in fairness can exist. If then these are facts which would avoid the effect of that election, their knowledge must be proved and not presumed. This is the doctrine of the opinion, only more elaborated; and we discover no reason for opening the case for a rehearing.
¶3The motion is denied.