The

bona fide purchaser for a valuable consideration would afford Lim a full protection against an equitable claim of which he had no previous notice. In the case under consideration the legal estate was absolutely vested in Carter by the deed of July, 1830, and although by the executory agreement to reconvey, such deed, in equity, was nothing but a mortgage as to the north half of lot No. 54, yet a bona fide purchaser from the holder of the absolute deed would have been protected, both at law and in equity, if no recording act had ever been passed: Whittick v. Kane, 1 Paige, 202. Therefore, as to the equitable claim of this complainant, it was perfectly immaterial whether the deed from him to Carter was recorded or otherwise. only benefit to be derived from the recording of that deed would be to protect the purchaser, claiming under the same, against a subsequent grantee of the complainant, who might, perhaps, become a purchaser of the property without notice of the existence of such a deed. If that deed could be considered as coming within the provisions of the third section of the recording act, 1 Rev. Stat. 756, so as to constitute the relation of mortgagor and mortgagee between the complainant and Carter, no benefit could be derived from the recording thereof, because it was not recorded in the book of mortgages. Neither was the writing explanatory of its being designed only to have the effect of a mortgage recorded with it, and at the same time. The object of that section of the statute was to protect bona fide purchasers from the mortgagor. It is therefore the duty of the person who receives such a mortgage to have the defeasance recorded with his absolute deed in the book of mortgages; otherwise he derives no benefit from the recording of such deed. But the rights of the mortgagor are the same whether the deed and defeasance which constitute the mortgage are recorded or not.

I apprehend, however, that at law this must be considered as an absolute and valid conveyance of the whole lot, with an agreement to resell and reconvey the north half upon the terms and conditions specified in the contract. And such an agreement, being a mere equitable claim upon the estate which could not affect the title of a bona fide purchaser without notice, is expressly excepted from the provisions of the statute requiring conveyances to be recorded: 1 Rev. Stat. 762, sec. 38.

This is undoubtedly a hard case for the purchasers, who supposed they were getting a good title. But, as the complainant was not aware of their negotiation for the purchase of the

property, and therefore had no opportunity to apprise them of his equitable claim to a reconveyance of the north half of the lot, it would be equally hard to deprive him of his property without consideration. Seymour and Welles were informed he was in possession, which by the settled law of the land was sufficient to put them on inquiry, and to deprive them of the defense of bona fide purchasers without notice of his rights. And they, in the language of Lord Eldon, having neglected to take the obvious precaution of inquiring as to the nature and extent of the tenants' interest in the property, they must suffer the consequences of their neglect.

The order appealed from must be reversed, with costs; and the injunction must be retained until the hearing. But it must be without prejudice to the right of the respondents Seymour and Welles, to bring an ejectment suit, and to proceed to judg ment therein, unless the complainant shall within thirty days stipulate to deliver up the peaceable possession of the property. to them, and pay the value of the mesne profits to be ascertained by a master under the direction of the court, if he does not succeed in establishing his equitable right to a reconveyance upon the final hearing of this cause.

NOTICE FROM CIRCUMSTANCES PUTTING ONE ON INQUIRY, is discussed in the note to Lodge v. Simonton, 23 Am. Dec. 47; Reeder v. Barr, 22 Id. 762. Recitals in title deeds put a purchaser on inquiry: Acer v. Westcott, 46 N. Y. 392. Suspicion of notice is not sufficient: Fort v. Purch, 6 Barb. 78.

Judge Selden, in Williamson v. Brown, 15 N. Y. 360, does not consider the use of the terms legal, implied, and constructive notice in the principal case as conclusive, and goes to some length in drawing what he conceives to be the true distinction.

POSSESSION AS NOTICE OF OCCUPANT'S RIGHTS.-See Tuttle v. Jackson, 21 Am. Dec. 306, and note. It makes a purchaser trustee for the equitable owner: Lamont v. Cheshire, 65 N. Y. 42. The possession must be notorious: Brown v. Volkening, 64 Id. 83; and will charge with notice of what would have been learned on inquiry regarding it: Goodenough v. Spencer, 46 How. 353; S. C., 15 Abb. (N. S.) 255; 2 N. Y. S. C. (T. & C.) 255; Williams v. Birbeck, 1 Hoff. 373; Moyer v. Hinman, 13 N. Y. 189; Newton v. McLean, 41 Barb. 288.

PLEA OF BONA FIDE PURCHASER MUST AVER, WHAT: Nantz v. McPherson, 18 Am. Dec. 216.

BONA FIDE PURCHASERS, WHO ARE: Blight v. Banks, 17 Am. Dec. 136; Jackson v. McChesney, Id. 521; Coleman v. Cocke, 18 Id. 757; Durell v. Haley, 19 Id. 444; Tuttle v. Jackson, 21 Id. 306; those who buy without notice of a prior equity and for value: Mahattan Co. v. Evertson, 6 Paige, 463; Brico v. Brice, 5 Barb. 548.

RECORDING DEED INTENDED AS MORTGAGE.-See note to James v. Morey, 14 Am. Dec. 475, and note 513. In Gomez v. Kamping, 4 Daly, 80, and

Saxton v. Hitchcock, 47 Barb. 226, Grimstone v. Carter is referred to upon the importance of the intention of parties in learning whether an instrument is a mortgage. Cited in applying the principle that where the equities are equal, the law will prevail to a sale of bank stock: Crawford v. Dox, 5 Hun, 511.

EGBERTS v. WOOD.

[3 PAIGE CH. 517.]

WHERE THERE ARE SEVERAL CREDITORS OR LEGATEES who have a common interest, and are entitled to share in a fund insufficient to pay all in full, they should be made parties, or the suit should be brought by some on behalf of themselves and of all others similarly situated, and it should be so stated in the bill.

AN EXPRESS TRUST CREATED FOR THE BENEFIT OF CREDITORS without any authority to the trustee to give a preference to any, is, both at law and in equity, a trust for each of the creditors ratably.

WHERE A CREDITOR SEEKS THE PERFORMANCE OF AN IMPLIED TRUST for the benefit of creditors, chancery will follow the maxim, equality is equity, except in cases where the creditor has a specific lien, or is entitled to a preference.

COPARTNERSHIP EFFECTS UPON THE FIRM'S INSOLVENCY are in equity consid ered a trust fund for the payment of the partnership debts.

EITHER OF THE PARTNERS BEFORE THE DISSOLUTION OF THE FIRM, or all of them afterwards, may appropriate the partnership funds to the payment of one creditor in preference to another.

AN INSOLVENT PREFERRING A CREDITOR is, under the revised statute, deprived of the benefit of the insolvent laws.

UPON A DISSOLUTION OF A FIRM BY THE DEATH of one of the partners, the survivors may give a preference with the consent of the personal representative of the decedent.

WHETHER ONE OF THE PARTNERS, during the existence of the partnership, may, against the consent of his copartners, assign the partnership effects in the name of the firm for the payment of a firm debt, whereby a prefer. ence is created, quære.

EFFECT OF DISSOLUTION OF PARTNERSHIP BY DEATH of one of the members, is to vest the legal title to the choses in action and the debts in the surviving partners as joint tenants under the law merchants.

JUS ACCRESCENDI AMONG PARTNERS means that the survivor holds the partnership funds for the settlement of the partnership concerns, and the balance for equitable distribution among the personal representatives of the decedent and the survivor.

A DECEASED PARTNER'S REPRESENTATIVE may insist that the partnership effects shall be applied to the debts of the firm.

A DECEASED PARTNER'S REPRESENTATIVE has no interest in the question as to what debts shall be paid first, where the partnership funds are insufficient to pay the whole.

ON THE DISSOLUTION OF A FIRM BY DEATH of a member, neither survivor can, without the co-survivor's consent, assign the whole interest in the partnership effects to trustees for the benefit of preferred creditors.

AN ASSIGNMENT BY A SURVIVING PARTNER of the partnership effects transfers to the assignee that partner's interest, and makes the assignee a tenant in common with the other surviving partner.

PARTNERSHIP CREDITORS ARE ENTITLED TO PRIORITY OF PAYMENT out of the partnership effects, and the separate creditors of the individual partners may claim a priority of payment out of their separate assets. APPLICATION on the part of the defendants, D. and B. R. Woods, to dissolve an injunction on bill and answer. The bill alleged that the firm of Edwin Jessup, composed of Lush, C. Jessup, and Vandenburgh, became dissolved December 11, 1828, by the death of Lush; that I. Keeler was appointed his administrator; that Jessup and Vandenburgh carried on the firm business without any new or other agreement than that which had previously existed, until about January 1, 1829, when they stopped payment, declaring themselves insolvent; that on the eighth of January, 1829, Jessup assigned all the debts, choses in action, and securities of the firm to D. and B. R. Woods, in trust, to pay certain preferred creditors; that the assignment was made without the knowledge or consent of Vandenburgh, or of Lush's personal representatives; that complainants were judgment creditors of Jessup and Vandenburgh, as surviving partners of Lush, deceased; and that the executions issued on their judgments had been returned unsatisfied. The complainants further alleged that the assignees had paid the preferred creditors forty-two per cent. of their demand, and had some funds still on hand; and that Lush's estate was insolvent, and that Vandenburgh had been discharged under the insolvent act. They therefore insisted that the assignment to D. and B. R. Woods was illegal and void, or that it would only transfer Jessup's interest in the firm assets after paying the partnership debts; and prayed that the assignment be declared void; that a receiver be appointed; that the assignees be restrained from making further payments, and for general relief.

By the answer, the assignees admitted all the facts stated in the bill, except that they denied that the assignment was made without the knowledge or consent of Vandenburgh, or of Keeler, or that the copartnership as between the surviving partners was dissolved by Lush's death; and alleged, on the contrary, one upon knowledge, the other upon information and belief, that both Vandenburgh and Keeler assented to the assignment, and that Vandenburgh did not execute it, because it was thought to be unnecessary.

A. Van Vechten and J. Edwards, for the complainants.

B. F. Butler and B. R. Wood, contra.

The CHANCEllor. Several questions were raised on the argument of this case, which probably are not material to the decision of the present motion. It is urged, in behalf of these complainants, that upon the dissolution of a copartnership by the death of one of the partners, the survivors became trustees for all the creditors of an insolvent firm, and have no right to pay one creditor to the exclusion of another, but that all must be paid ratably. If the principle contended for is correct, this suit is not properly instituted for the purpose of carrying that principle into effect. It is alleged in the bill that there were other creditors, not provided for in the assignment, to the amount of twenty-five thousand dollars, including what is due to these complainants. To have enforced the principle of equality among creditors, it would therefore have been necessary and proper that this bill should have been filed by the complainants in behalf of themselves and of all other creditors of the firm who might choose to come in under the decree. But this suit is instituted by the complainants in behalf of themselves alone, as judgment and execution creditors of the surviving partners; and if they can reach the assigned property in this suit, they will probably be entitled to so much thereof as is sufficient to satisfy their judgments, to the exclusion of all other creditors of the firm. Where it appears upon the face of the bill that there will be a deficiency in the fund, and that there are other creditors or legatees who are entitled to a ratable distribution with the complainants, and who have a common interest with them, such creditors or legatees should be made parties to the bill, or the suit should be brought by the complainants in behalf of themselves and all others standing in a similar situation; and it should be so stated in the bill: Baldwin v. Lawrence, 2 Sim & Stu. 18; Leigh v. Thomas, 2 Ves. sen. 311; Fish v. Howland, 1 Paige, 20. But as this objection might be obviated by an amendment of the bill, as was done in

the case of Good v. Blewitt, 13 Ves. 397, it may be proper to inquire whether any such principle as is contended for does in fact exist.

Where an express trust is created for the benefit of creditors, without any authority to the trustee to give a preference to any, it is, both at law and in equity, a trust for each of the creditors ratably. And even in the case of implied trusts, where one of the creditors comes into this court to enforce the performance of the trust, except in those cases where he has