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FOURTH DEPARTMENT, JULY TERM, 1895.

required to render the "consideration" theretofore due from them as an equivalent for the ten per cent commission. Under such circumstances it does not seem to be a reasonable construction to hold that the defendants were to receive ten per cent commission upon the unexecuted orders to be thereafter filled. The construction put upon the instrument by the learned referee seems more reasonable. He found: "That said agreement does not provide that defendant should have commissions on unfilled orders," or on "filled orders." He also found that there was no account stated between the parties. Plaintiff objected to the withholding of its money by the defendants, and by receiving part thereof did not forfeit its rights in the sum wrongfully withheld. (Stenton v. Jerome, 54 N. Y. 480.) Defendants held the moneys of the plaintiff, and their assertion that the lesser sum must be received by the plaintiff in full, did not produce an accord and satisfaction. The case of Schuyler v. Ross (13 N. Y. Supp. 944) differs from this. There a sale had been made of bark, and the plaintiff, by accepting the check, admitted the measurement claimed to be correct.

Hills v. Sommer (53 Hun, 392) was a case where a draft was sent for the amount alleged to be the balance for goods sold, after deducting for the parts that were defective, and the defendants disputed the liability for any greater sum than the draft they sent, and plaintiff accepted the same as a compromise of the dispute. Here, the plaintiff did not acquiesce in the claim of the defendants, but objected to the sufficiency of the advances, and expressly notified the defendants that the sums remitted would be credited on account. (Stenton v. Jerome, 54 N. Y. 480; Ryan v. Ward, 48 id. 204; Nassoiy v. Tomlinson, 65 Hun, 491; S. C., 20 N. Y. Supp. 384.) There was a deficiency. The defendants retained money which, by the instrument signed by them, had been assigned to and belonged to the plaintiff, and the part payment thereof to plaintiff did not discharge the defendant's liability. (Jaffray v. Davis, 48 Hun, 500.) The referee refused to find that defendants expended money for goods ordered, cartage and telegrams in May, subsequent to the nineteenth of May, amounting to $914.92, and refused to find that defendants expended, in June, $408.11, and that such sums were credited on the books of plaintiff. We think such refusals were erroneous and that the evidence warranted the findings requested. Some of the

88 348 27ap405

FOURTH DEPARTMENT, JULY TERM, 1895.

[Vol. 88.

evidence bearing upon the items is found in the testimony of Prosser to the effect that he was requested to allow the goods ordered for the company to be delivered and that all the goods and expenses mentioned in Exhibits Q and R were delivered and received by plaintiff subsequent to May 23, 1883. Bingham's evidence tends to the same result. The plaintiff has been allowed improperly to recover for the items referred to in Exhibits Q and R, to wit, $914.92 and interest from June 1, 1883, and $46.58 and interest from July 1, 1883. The amount of the items should be deducted from the judgment.

(2) The affidavits and papers used at Special Term were such that the court was called upon to exercise its discretion as to the propriety of granting an extra allowance. (Burke v. Candee, 63 Barb. 552; Gooding v. Brown, 21 Wkly. Dig. 46; Morss v. Hasbrouck, 13 id. 393; Tolman v. S., B. & N. Y. R. R. Co., 31 Hun, 403.) It is not apparent that the discretion was abused and, therefore, the order should be affirmed.

MARTIN and MERWIN, JJ., concurred.

Judgment and order reversed and a new trial ordered, with costs to abide the event, unless plaintiff shall stipulate to modify the report and judgment by deducting $914.92 and interest from June 1, 1883, and $46.58 and interest from July 1, 1883, in which event the judgment as so modified and the order are affirmed, without costs to either party of this appeal.

URI C. VAN VLECK and Others, Respondents, v. EMILUS J. ENOS and Others, Appellants.

Foreclosure by advertisement. · statute to be strictly followed — defective affidavits — before whom verification of affidavit of sale may be made common-law proof of sale-what makes a person merely a mortgagee — as such he cannot bring an action of ejectment — what title passes upon an administrator's sale of real estate - proof of bona fides by a purchaser.

A compliance with the statutory requirements relating to foreclosure by advertisement is a condition precedent to a valid sale under the power contained in the mortgage; such requirements have the same effect as if they were incorporated into the mortgage.

A person claiming title under a foreclosure and sale by advertisement assumes the burden of showing that the statutory requirements were complied with.

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Where the affidavits relating to such a sale, had in 1869, fail to show that the clerk entered in the book in which notices of foreclosure and sale were affixed, at the bottom of the notice, the time of receiving and affixing the same or that he subscribed it or that he indexed the notice under the name of the mortgagor, the affidavits are materially defective and show no title in the purchaser. Where the statute enumerates the officials who are authorized to take the affidavit of the person who acted as auctioneer at the sale, no person other than one of such officials has power to act in the premises.

A sale in foreclosure by advertisement may be shown to be valid by common-law proof, but such proof must positively establish all the facts required by the statute to be stated in the affidavit of sale.

In an action of ejectment it appeared that the plaintiff's title grew out of the following facts: Dewitt C. Enos, owner of the premises in question, had given a mortgage upon them which was unpaid at the time of his death; that an agreement was made between the widow of Dewitt C. Enos, her father, Alanson Trask, and the defendant Emilus C. Enos, by which the mortgage was to be purchased by the widow and Emilus,. foreclosed, and the title transferred to some other person for the purpose of divesting the title which the infant children of the decedent had in the premises. The mortgage was purchased and assigned to Alanson Trask who foreclosed it by advertisement. The premises were sold in 1869, and bid off by Eneas E. Enos (a son of the defendant Emilus J. Enos), under an agreement made between himself, Emilus J. Enos and Alanson Trask, by which Eneas E. was to bid off the premises for Emilus J., execute a mortgage to the widow for her advances, retain the title as security for his own, and upon repayment convey the premises to his father, Emilus J. Enos. The mortgage was executed to the widow, but Eneas E. Enos never conveyed to his father, who remained in possession of the premises until the commencement of the present action of ejectment.

In December, 1886, Emilus J. Enos made a general assignment, and in September, 1887, his assignee sold his interest in the premises to the children of Dewitt C. Enos, who are defendants. They received a deed conveying such interest October 29, 1887, which was recorded January 6, 1888. Eneas E. Enos having died in November, 1886, insolvent and without heirs, proceedings were taken in a Surrogate's Court to sell his real estate for his debts and funeral expenses, and the premises in question were sold to the plaintiffs in March, 1888, and the deed of the administrators to them was recorded April 18, 1888.

Thereafter the plaintiffs brought an action of ejectment and recovered a verdict for the possession of the premises in question.

Held, that under the agreement by which Eneas E. Enos purchased the premises his interest was only that of a mortgagee entitled to be repaid his advances, and that he could not have maintained an action of ejectment;

That the sale of the premises by the administrators of Eneas E. Enos to the plaintiffs conveyed only the interest which the decedent had in the premises at the time of his death, which was that of a mortgagee;

FOURTH DEPARTMENT, JULY TERM, 1895.

[Vol. 88. That even should it be assumed that a purchaser in good faith could cut off the equities of Emilus J. Enos and those claiming under him, and acquire a better title than Eneas E. Enos had at the time of his death, the plaintiffs had not, upon all the facts of the case, shown themselves to be purchasers in good faith and without actual or constructive notice.

APPEAL by the defendants, Emilus J. Enos and others, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Madison on the 9th day of May, 1894, upon the verdict of a jury rendered after a trial at the Madison Circuit, and also from an order entered in said clerk's office on the 19th day of April, 1894, denying the defendants' motion for a new trial made upon the minutes.

The action was begun May 14, 1888.

N. Foote, A. A. Foote and C. A. Hitchcock, for the appellants.

Mason & Cushman and John E. Smith, for the respondents. MARTIN, J.:

This was an action of ejectment to recover the possession of a farm situated near the village of Hamilton, N. Y.

The plaintiffs' alleged title is based upon the claim that Dewitt C. Enos owned the premises and gave a mortgage thereon, which, after his death, was foreclosed and the farm was purchased by Eneas E. Enos, who thereupon became the owner; that after the death of Eneas E. Enos proceedings were instituted by his administrators to sell his real estate for the payment of his debts, which resulted in a sale of the premises to the plaintiffs and others, and that under and by virtue of such sale they acquired the title in fee to the farm in question.

The defendants, however, claim that the mortgage given by Dewitt C. Enos was never properly foreclosed, and hence no title whatever passed to Eneas E. Enos; that if it was properly foreclosed it was purchased under an express arrangement or agreement whereby Eneas E. Enos took only a mortgage interest in the premises while the fee belonged to Emilus J. Enos; that subsequently Emilus J. Enos became insolvent, made a general assignment for the benefit of his creditors; that his assignee sold the interest of Emilus J. Enos in the premises, which was purchased for and belongs to the defendants Alanson T. Enos, Frank Enos and Hetty

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Mitchell; and as the only title that Eneas E had, or that the plaintiffs acquired, was that of a mortgagee, that neither Eneas nor the plaintiffs could maintain this action.

At the time of his death Dewitt C. Enos was the owner of the premises in question subject to a mortgage upon which there was then unpaid $2,500. He died December 14, 1868. At that time the premises were worth about $8,000. His wife and three infant children survived him. His widow was appointed administratrix of his estate. After his death a plan was devised by and between the widow of Dewitt C. Enos, Alanson Trask, her father, and Emilus J. Enos, a brother of the decedent, by which the mortgage upon the premises was to be purchased by the widow and Emilus, foreclosed and the title transferred to some other person for the purpose of divesting the title which the defendants Alanson T. Enos, Frank Enos and Hetty Mitchell, the then infant children of the decedent, had in the premises.

In pursuance of this plan the widow of Dewitt C. Enos furnished $1,000 of the funds belonging to his estate, and Eneas E. Eros, a son of Emilus J. Enos, furnished $1,500 for the purpose of purchasing the mortgage upon the premises, foreclosing it, and thus divesting the title of the infant children of the decedent in the premises. The mortgage was purchased and assigned to Alanson Trask, who immediately commenced proceedings to foreclose it by advertisement. The premises were sold June 28, 1869, for $2,528, and bid off by Eneas E. Enos, under an agreement which had been made between himself, Emilus J. Enos and Alanson Trask, by which Eneas E. was to bid off the premises for Emilus J., hold them as security for the $1,500 furnished by him to purchase the mortgage, give a mortgage to Anna F. for the $1,000 she had advanced, and give to Emilus J. a defeasance to convey the premises to him when he, Eneas E., was paid the $1,500 advanced, with interest. Such a defeasance was subsequently executed under seal, acknowledged and delivered to Emilus J. Enos, and a mortgage for $1,000 was executed and delivered to Anna F. Enos. The premises continued in the possession, under the management and control of Emilus J. and his wife, and they received the entire proceeds thereof, until the commencement of this action. The premises were never conveyed by Eneas E. to his father, Emilus J.