[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 431 We are unable to discover any ground for the reversal of the judgment of the General Term. The facts of the case establish that the money realized upon the foreclosure sale has been applied where it lawfully belongs, to the payment of incumbrances upon the property, and we see no *Page 432 such misapplication of the same or violation of any rule of law as could sanction a judgment against the defendant. He paid the money to the person who was lawfully entitled to the same in entire good faith, and after having thus disposed of it no valid reason exists why he should pay any portion of the avails of the sale to the plaintiff. None of the objections urged to the sale are sufficient, we think, to render the defendant liable, as will be manifest from an examination of the same. The objection that the defendant had no power to sell the premises free and clear from all incumbrances and to the terms of sale is not well taken. There is nothing in the statute prohibiting such terms, and as they state the conditions and fix the rights of the parties and bind the purchaser who signed, thus avoiding any question as to the statute of frauds, they are both proper and lawful. The practice also conforms to that pursued in case of foreclosure and other sales in equitable actions, and is to be commended. We think that parol evidence was admissible to prove the conditions of the sale and the amount bid. The affidavits are merely the evidence of the exercise of the power of sale prescribed by the statute for the benefit of the purchaser, to perfect his title and to perpetuate the evidence of it. They are but prima facie presumptive evidence of the facts stated and may be controverted. (Mowry v. Sanborn, 72 N.Y. 534; S.C., 68 id. 160, 161.) It was competent, therefore, to show all the facts and circumstances, and if any objections exist to filing the additional affidavit for the purpose of correcting an error, the facts were proved by parol and hence it is not material. The terms of sale having been carried into effect it does not aid the plaintiff because the contract was not signed as required by the statute of frauds. If it be conceded that the sale was entirely irregular the plaintiff cannot affirm it without being bound by its terms. If dissatisfied his remedy is by motion to set it aside. It is apparent that the money realized upon the sale has been properly appropriated and no injustice has been done, and in such a case equity will interfere to prevent a wrong being committed. *Page 433
The opinion of the General Term fully covers the case, and it is not necessary to consider some other questions raised.
The order should be affirmed and judgment absolute rendered against appellant upon stipulation.
All concur; EARL, J., concurring in result.
Order affirmed and judgment accordingly.