On. the 6th day of December, 1889, when the Outtersons entered into the contract with Dilts ior the purchase of the machinery, and placed the same upon the premises, they became obligated to pay therefor, and their liability or debt accrued'on the close of that contract. When the machinery was delivered and the contract fulfilled, in September, 1890,'their obligation to pay for the machinery, as purchasers thereof, became absolute. True, Andrew had agreed to give a first mortgage, and had also stipulated that the title to the property might remain in the vendor as security for the obligation or debt assumed in the purchase of the property; but, according to the finding, it was to remain in Dilts until the arrangement for a mortgage was consummated. Apparently, when the arrangement for a mortgage was consummated, the legal title to the machinery passed from the vendor, and to that extent it may be said that there was a surrender of the title by the vendor at the time of receiving the mortgage of $8,700; and to that extent he “actually parted with some value or some right upon -the faith of the” mortgage. Cary v. White, 52 N. Y. 141. And in taking the mortgage it may be said that he parted with a prior security, to wit, the legal title of the property furnished in pursuance of the contract. Weaver v. Barden, 49 N. Y. 294.
It is found' in the twenty-first finding of fact “that said Frank Diltswas not a bona fide purchaser for a valuable consideration as to his mortgage of $8,700;” and in the third conclusion of law it is found “that defendant Dilts is not a bona fide purchaser for a valuable consideration, without notice of either of said mortgages, executed to secure the payment of $900 and $1,000, respectively, as to his $8,700 mortgage.” Inasmuch as the trial- judge found that there was no actual notice, and based his decisión on the fact that there was no consideration parted with lor the $8,700 mortgage at the time it was taken, as to which we-*165think he was in error, a new trial should be ordered. Judgment reversed, and a new trial ordered, with costs to abide the event. All concur.