FIFTH DEPARTMENT, OCTOBER TERM, 1887. chaser from Warren of the improvement called the "Eureka bung,' of which Warren was the inventor, and what consequence may follow its determination. The invention of the projected apparatus was assigned by Warren to Bigelow February 2, 1885. The letters-patent were issued June sixteenth, and on June 19, 1885, Bigelow assigned to the defendant company. Prior to the assignment to Bigelow an agreement had been, made by Warren with the plaintiff which as between them gave to the latter rights which were violated by the assignment to Bigelow. These are assumed to be the facts upon the findings of the trial court for the purpose of this review, and it was there found that Bigelow had no notice of the agreement giving such right to the plaintiff until April 14, 1885, and that before then he had paid upon the agreement, pursuant to which the assignment was made to him by Warren, $983.76, and had incurred liability to pay others $653.87. These sums did not constitute the full amount Bigelow was required by the agreement to pay for the improvement. They were a part only of the purchase-price. The inquiry therefore arises as to the effect of partial performance only on the part of the purchaser, before notice of a prior equity or right of another in respect to the subject of the sale. It will be assumed that if Bigelow had, before he was chargeable with notice of such right of the plaintiff, paid the entire purchase-price his title would be protected. It is otherwise if he had such notice before his relation of bona fide purchaser was established. The trial court held that he was such at the time he was advised of the situation, although he had then paid a portion only of the purchase-money, and cites Weaver v. Barden (49 N. Y., 286). That case does not seem to support the proposition, nor do the cases cited by the defendant's counsel necessarily sustain his contention in that respect. The character of bona fide purchaser must be completed before his title will have protection as against an outstanding equity. And his payments or performance subsequent to the time he becomes affected by notice of it will be treated as in his own wrong, and not available as against such equity for any purpose. The better reason would seem to be in support of the doctrine that when a purchaser is advised of a prior claim of another which denies to the seller, as against him, the right to make the sale, he FIFTH DEPARTMENT, OCTOBER TERM, 1887. should desist from proceeding further to complete his purchase, or if he thereafter proceeds in performance of his contract, do so subject to the equities of such party in whom rests the prior right; otherwise such outstanding rights may be defeated with a facility seemingly unreasonable as well as unjust. It might be accomplished by the payment of any amount of the purchase-money before notice and in good faith. The view here entertained is that the character of bona fide purchaser is not completed unless the whole amount of the purchase-money is paid before the purchaser becomes chargeable with notice of the outstanding equity. While this rule may not have been distinctly declared by judicial authority in this State, there are cases here which bear in that direction and seem to support that proposition. (Warner v. Winslow, 1 Sandf. Ch., 430, 435; Merritt v. Lambert, Hoff., 166, 170; Jewett v. Palmer, 7 Johns. Ch., 65; Frost v. Beekman, 1 Johns. Ch., 288, 301; Jackson v. Cadwell, 1 Cow., 622, 631.) It has been so held in other States and in England. (Nantz v. McPherson, 7 T. B. Monroe, 597; 18 Am. Dec., 216; Dugan v. Vattier, 3 Black., 245; 25 Am. Dec., 105; Lewis v. Phillips, 17 Ind., 108; 79 Am. Dec., 457; Burton v. Reagan, 75 Ind., 77; Warner v. Whittaker, 6 Mich., 133; 72 Am. Dec., 65.) And this rule is applicable until the contract is fully performed. (Bush v. Bush, 3 Strob. Eq., 131; 51 Am. Dec., 675; Doswell v. Buchanan, 3 Leigh., 365; 23 Am. Dec. 280.) But so far as the part performance is made in good faith and no further he may have protection or indemnity for reimbursement and for that purpose a lien for the amount so paid. (Stalker v. McDonald, 6 Hill, 96; Pickett v. Barron, 29 Barb., 508; Everts v. Agnes, 4 Wis., 343; 65 Am. Dec., 314; Hoffman v. Strohecker, 7 Watts, 86; 32 Am. Dec., 740; Rhodes v. Green, 36 Ind., 10; Beck v. Uhrich, 13 Penn. St., 636; S. C., 16 id., 499; Juvenal v. Jackson, 14 id., 519; Paul v. Fulton, 25 Mo., 156.) The application of this doctrine permits no undue advantage and gives protection to the rights of the parties. And so far as these propositions may be applicable to the facts and situation of the parties as they may appear in this case they should govern its determination. This protection to the defendant company should cover the amount of the purchase-money for which Bigelow, by way of performance of his contract, had in good faith become legally liable to pay persons Fifth DeparTMENT, OCTOBER TERM, 1887. other than Warren, and the amount actually paid by him upon it before he became chargeable with notice of the plaintiff's claim. The plaintiff seeks by this action the assignment to him of one-half only of the patent that he may realize from it the advantages furnished by his contract with Warren. The other half it would seem the defendant company may, if it so desire, retain subject to the provisions of such contract. And whether it does or not so elect, further consideration by way of adjustment of rights may arise which it is unnecessary here to consider. The parties if so disposed may agree upon a modification of the judgment so as to accomplish the result. The judgment should be reversed and a new trial granted. Costs of this appeal to abide the final award of costs unless both parties consent and stipulate to modify the judgment so as to give effect to the views above expressed. And in that event the judgment be so modified and as modified affirmed, without costs of this appeal to either party. SMITH, P. J. and HAIGHT, J., concurred. So ordered. 46h 22 57ad519 WILLIAM B. STERRETT AND OTHERS, RESPONDENTS, v. THE Firm when deemed to be insolvent, although the amount of its assets exceeds its liabilities — the right of a sheriff to lery upon the interest of one partner in firm assets and sell the same is not settled. The plaintiffs, who were engaged as partners, in carrying on the business of producers of and dealers in petroleum oil at Titusville, in the State of Pennsylvania, in September, 1882, gave their notes for $7,500 and $2,000, respectively, to the defendant bank, and as collateral security deposited pipe line certificates. On the 8th day of December, 1882, the defendant, which then held twelve of these certificates, each representing 1,000 barrels of oil, caused an attachment to be issued against the property of the plaintiff Sterrett, and a levy to be made thereon, in an action brought by it against Sterrett upon his individual note, and thereafter recovered a judgment therein and caused an execution to be issued thereon under which the pipe line certificates were sold. On December eleventh the plaintiffs paid their notes and demanded the possession of the certificates of the defendant, which refused to deliver them. The fact in controversy upon the trial of this action, brought by the plaintiffs to recover damages for FIFTH DEPARTMENT, OCTOBER TERM, 1887. the conversion of the certificates, was whether or not the firm was, at the time of the attachment, solvent or insolvent, it being conceded that if it was then insolvent Sterrett had no leviable interest in the certificates. Upon the trial evidence was given tending to prove that the partnership debts on the 8th and 11th days of December, 1882, amounted to $100,085.35, and its assets consisted of 89,000 barrels of petroleum oil and $221.24 in accounts, and that nearly, or quite all, the certificates for the oil were hypothecated as security for the payment of its debts. The lowest price of oil on the eighth and the highest on the eleventh of December would have made the value of the oil about equal to the firm liabilities, but after that, during the month, the prices would have made it less. Held, that as the amount in which the firm assets, if sold on the day of the levy, would have exceeded their liability, was comparatively small and fluctuating from day to day; and as even this sum was not available to the firm, as the certificates were held by various banks as collaterals on account of the commercial paper of the firm, that the firm should not be treated as solvent so as to furnish an interest in Sterrett, subject to and sufficient to support the levy of the attachment. A person is deemed insolvent who, at the time in question, is unable to pay his debts in the ordinary course of business (Per BRADLEY, J) Shone v. Lucas (3 Dow. & Ry., 218); Thompson v. Thompson (4 Cush., 127); Lee v. Kilburn (3 Gray, 594-600); Herrick v. Borst (4 Hill, 650), cited. This court then stated that it had proceeded to the above conclusion upon the merits of this case, upon the theory of the parties upon which the action was tried at the circuit and argued at the General Term, that if the firm was shown to have been insolvent on December 8, 1882, the plaintiffs were entitled to recover, otherwise not, without expressing what views might otherwise have been entertained in respect to the remedy sought by the action, and added that it was proper to say "that, for the purposes of an action like this one and in its support, the question is not satisfactorily settled by authority." (Per BRADLEY, J., who cites, examines, distinguishes and criticises the cases in this and other States bearing upon this question.) APPEAL by the defendant from an order of the Circuit Court of Erie county, denying a motion for a new trial made upon the minutes. The cause of action alleged was for the conversion of four certificates of the United Pipe Line Company, each representing 1,000 barrels of patroleum oil. The answer puts in issue the material allegations of the complaint and alleges, by way of justification, the levy of an attachment upon the interest of the plaintiff Sterrett, the recovery of a judgment against him and a sale by virtue of an execution issued thereon. It appeared that the plaintiffs were partners engaged in the business of producers of and dealers in petroleum oil at Titusville, in the State of Pennsylvania; that in September, 1882, they gave their notes for $7,500 and $2,000, respectively, FIFTH DEPARTMENT, OCTOBER TERM, 1887. to the defendant, and as collateral security for their payment deposited with it Pipe Line certificates, that on the 8th day of December, 1882, the defendant held as such collateral twelve of those certificates representing 1,000 barrels of petroleum oil each. On that day the defendant caused the levy thereon of an attachment against the property of the plaintiff Sterrett issued in an action in its behalf against him upon his note; on December eleventh the plaintiffs paid their notes held by the defendant and demanded of it the possession of the twelve certificates, which the defendant refused to deliver. And on the fifteenth day of December eight of the certificates were delivered to the plaintiffs pursuant to an arrangement then made, whereby it was agreed that the interest of Sterrett in the twelve should be treated as embraced in the four certificates not delivered, without prejudice to any rights of the plaintiffs in respect to the latter. The defendant afterwards recovered judgment in its action against Sterrett and caused the four certificates to be sold by the sheriff by virtue of execution upon such judgment. This action was brought for the alleged conversion of those certificates and on the trial the plaintiffs recovered judgment for the damages resulting from such conversion. Adelbert Moot, for the appellant. C. D. Murray, for the respondents. BRADLEY, J.: The proposition in controversy at the trial was whether Sterrett had any interest in the certificates in question at the time the attachment was levied, which depended upon the question of fact submitted to the jury whether the plaintiffs' firm was solvent or insolvent. Because the copartnership as such had rights and interests distinct from those of the several members, and they severally had no individual interest except in a surplus that should remain after adjustment and settlement of the partnership affairs. And if the firm was insolvent, the member Sterrett had no interest in the firm property. (Staats v. Bistow, 73 N. Y., 264; Menagh v. Whitwell, 52 id., 146; Morss v. Gleason, 64 id., 204; Tarbell v. West, 86 id., 280.) And the right of property for the purpose of paying the partnership debts, as against the appropriation of it to |