Page:Federal Reporter, 1st Series, Volume 8.djvu/613

 WaiGHT V. EANDEL. 509 �sion of a requeat by Eandel to the patent-office to issue the patent to Smith and Downer jointly with himbelf, or to Downer alone, en- abled Eandel to make a second transfer of the invention, and tb secure the issuing of the patent as it was issued. The Bandel Com- pany had no legal title to the patent when it was issued, and the most it could do was to claim and assert an equitable title. Gayler \..Wilder, 10 How. 477; Clum v. Brewer, 2 Curtis, 506. That title was prior in time to the legal title obtained by the co-defendants with Eandel. Can it be asserted as superior in right by reason of any notice, constructive or actual, with which the co-defendants with Eandel are chargeable ? �The assignments of September 19, 1876, and January 31, 1877, were not instruments, the recording of which was provided for by section 4898 of the Revised Statutes, which is coufined to assi'gn-' ments, grants, and conveyances of interests in patents after they are issued. Fees are prescribed by section 4934 for recording "every assignment, agreement, power of attomey, or oth«r paper;" but it does not follow from this that the record of every paper which may happen to be recorded is to be taken as constructive notice of its con- tents to every person subseqi e itly dealing with a party to it in respect to its subject-matter. The record of an instrument is not constructive notice to a subsequent purchaser unless the statute requires the instrument to be recorded. No assignment of an unpat- ented invention is required by section 4895 to be recorded, unless it is an assignment on which a patent is to be issued to the assignee ; and, in such case, the invention must be so identified in the assign- ment — by a reference to a specification, or an application, or other- wise — that there can be no mistake as to what particular invention is intended. The two assignments in question, so far as they relate to unpatented inventions of Eandel, already made, do not fall within section 4895 in either of the above partioulars, and it must be held. that the record of them was not constructive notice to the subsequent purchasers of the prior assignment by Eandel of said unpatented inventions. �As to actual notice, the burden is on the plaintiff to establish it. There is not sufficient proof to show that Haslehurst had notice before he became ahonafide purchaser for a valuable consideration. The contract was made March 28, 1877, expressing, as a considera- tion, that Cipperly and the two others were to pay the expense of procuring patents. They paid $3.50 towards prpeuring foreign patents April 18, 1877, and afterwarda paid mure for that purpose. ��� �