#### MILO C. OSBORN, Respondent, v. ASHER MERWIN, Appellant.

*Statute*foreclosm'e— *aba/r though no affidavits are made*— In *default of affidavits, sale how proved,*— Pa/rol *agreement to sell, change of possession, etc. —effect of.*

A sale liad under a foreclosure by advertisement, pursuant to the statute, bars tbe equity of redemption, although, no affidavits are made, tn default of such affidavits, the sale may be proved, as against the mortgagee, by secondary evidence, which would include the entries relative to the sale in the register of the attorney who conducted the proceedings; an entry made in his book, in the due course of business, by the printer of the paper in which the notice was claimed to be published, charging the attorney with the expenses of such advertisement, as tending to show that the advertisement was made; and, also, evidence of a parol agreement by which the mortgagee, with the assent of the mortgagor, purchased the mortgaged premises for the amount of the mortgage, and the subsequent taking possession thereof by the mortgagee* In such case a verbal agreement between the mortgagor and the mortgagee for the sale of the property for the amount of the mortgage, possession being delivered and improvements being made, would be valid.

Appeal from a judgment entered upon a verdict in favor of the plaintiff at the Washington Circuit.

This action was brought to recover the deficiency on a bond after a foreclosure of the mortgage by advertisement. The foreclosure took place in July, 1859, and the assignee of the mortgage was the purchaser. The obligor set up, as a defense, that before that time, *333and in August, 1855, the same assignee foreclosed the mortgage by advertisement, bought the property for the whole amount of the mortgage debt, and went into possession.

The defendant testified that, in 1855, a notice was served on him by the plaintiff, by mail, of the foreclosure of the mortgage in question for the 13th of August, 1855. He testified that he had lost the notice, but he gave its contents; that he attended the sale on that day. Another witness testified that he saw the notice stuck up on his office door, and saw the notice in the Eagle, a newspaper. The printer of the newspaper testified that he published a notice of a mortgage sale, in which the plaintiff was assignee, in 1855. He testified that he could find no file of his paper. The charge for the services was in June.

The defendant offered in evidence the register of a deceased attorney, who it was claimed conducted the foreclosure of 1855, but this was excluded. He offered to show, by parol, the contents of the notice of sale published in the Eagle, and of the notice stuck upon the office door, but this was excluded.

The defendant then offered lto show a sale of the premises on the 13th of August, 1855, for more than enough to satisfy the mortgage, but this was excluded. The defendant then proved that the plaintiff took possession shortly after that time.

*James B.*OT/ney, for the appellant.

*J. J. Werner,*for the respondent.

Learned, P. J.:

In *Tuthill*v. *Tracy*(31 N. Y., 157), it was held that a sale pursuant to the statute bars the equity of redemption without any affidavits being made. This ease is cited in the recent case of *Mowry*v. *Sanborn*(MS., Ct. App.), without criticism, and must, therefore, be the law.

If there were no affidavits, then, of course, there was no reason for the exclusion of other proof of the facts, if such proof was otherwise proper.

The service of the notice of sale on the defendant was proved without dispute. As to the publication in the Eagle, Mr. Ives tes*334tiffed that he knew of a foreclosure commenced by one Watson Osborn for the plaintiff against the defendant’s property; that it was commenced in 1855, he thinks, in May, and that he- saw the notices. The printer testifies that he cannot find any files; that he published a notice of mortgage sale, in which the plaintiff was the assignee ; that the notice was brought to him by Mr. D. 3L Olney. The register of Mr. Olney, who is deceased, is offered in evidence, and excluded. It contains the title of the case, a statement that he is counsel, and W. Osborn attorney, and, among other things, these entries : “ Prepared advertisement and put in the Eagle, May 16, 1855 “Posted notice of sale on court-house door — done by me.”

In the case of *Hawley*v. *Bennett*(5 Paige, 104), which also is cited approvingly in *Mowry*v. *Sanborn (ut supra),*it was held that entries in an attorney’s register of a sale on the day mentioned in the notice were admissible in evidence. It is true that this was before the act of 1808, which made the affidavits *prima facie*evidence. But we have already seen, in *Tuthill*v. *Tracy,*that it is not necessary, in order to cut off the equity of redemption, to make any affidavits. In the present case, if any affidavits were 'made, the plaintiff was notified to produce them; and, failing to do so, secondary evidence was admissible. If no affidavits were ever made, then it was necessary and proper to introduce ordinary common-law proof. And, as such, these entries were admissible.

So the printer testified that, aside from his book, which was produced in court, he could not remember that he published the notice thirteen weeks. The defendant offered in evidence an entry on the book, and the court excluded this and also, the evidence in regard *to*it. It does not distinctly appear what this entry was. It seems to have been a charge against Mr. Olney for printing this advertisement. Mr. Olney’s register would have shown him to be the plaintiff ’s agent in this business of foreclosure. So that this entry by the printer would seem to have been a charge against the plaintiff’s agent for doing certain work in his behalf. And the question is whether this was admissible in evidence that the work had been in fact done, that is, that the printer had actually published the advertisement for which he made a charge.

It seems to me that this comes within the doctrine of *Guy*v. *335
      *Mead*(22 N. Y., 462). From wbat appears, tbe memorandum must bave contained, or implied, a statement tbat this advertising bad been done. The witness testified tbat it was made in tbe ordinary course oi business, and would not bave been made if it bad not been true. And certainly (aside from tbe former strict rule of evidence), such a charge, made at the time, is more convincing than tbe memory of a witness as to a matter nearly twenty years old.

There is another consideration. A sale under such proceedings as these is made by virtue of tbe power given by tbe mortgagor to tbe mortgagee. Tbe mortgagee is by statute permitted to be a purchaser, but be sells by virtue of tbe mortgagor’s authority, just as if tbe mortgagor sold tbe property himself. Tbe statute regulations as to notice, etc., are for tbe benefit of tbe mortgagor. Now, tbe defendant offered to prove tbat, at tbe time fixed by tbe notice served on him, viz., August 13, 1855, tbe plaintiff did sell tbe property to himself for more than enough to satisfy tbe mortgage, and tbat tbe defendant was present; be proved tbat tbe plaintiff told the defendant be bad bought tbe premises; tbat be took possession soon thereafter and exercised acts of ownership; and tbat, at the plaintiff’s request, tbe defendant in a few months gave up possession and went away. He offered to show tbat, in March, 1859, tbe plaintiff made a contract to sell a part of tbe property by warranty deed, which contract was, by its terms, to be completed by April 1, 1859, two months before tbe second foreclosure was commenced; and that the plaintiff received tbe full amount thereof April 11, 1859.

Tbis, then, was evidence tbat tbe defendant surrendered to tbe plaintiff possession of tbe premises, upon a sale thereof to tbe plaintiff, at a price equal to the amount of the mortgage. If we look upon this merely as a verbal agreement between tbe plaintiff and tbe defendant to sell tbe property for tbe amount of tbe mortgage, they eoidd make such an agreement; and they could carry it out by respectively giving and taking possession. They did so, and tbe plaintiff, after taking possession, went on and made improvements by building. Tbis would bave made the verbal agreement binding. By tlie sale, which tbe defendant offered to prove, tbe plaintiff agreed to give for tbe land the amount of tbe mortgage; and tbe defendant accepted tbis by giving up possession under tbat *336offer. If the plaintiff, by neglect, has failed to preserve that evidence of the sale which is authorized by the statute, viz., the affidavits, he should not be allowed to deprive the defendant of the benefit of the plaintiff’s own bid for the property. The defendant makes no objection to the regularity of the proceedings; he accepted them as valid and yielded possession.' No one else can complain, if he does not. The plaintiff ever after that time continued possession as ownei’, claiming the premises in fee. He can, even now, make out the proper affidavits. *(Tuthill*v. Tracy, *ut supra.)*

The judgment and order should be reversed and a new trial granted, costs to abide the event.

Present — Learned, P. J., and Boardman, J.; Bookes, J., taking no part.

Order reversed, with costs.