(concurring):
The fact that John Higgins, through whom the defendant derived her title, was present in the room at the time it was claimed the deed was signed and acknowledged, and that John Higgins was dead at the time of the trial, did not render the plaintiff incompetent to testify by reason of the rule laid down in section 829 of the Code of Civil Procedure. Although the deed which it was alleged the plaintiff signed and acknowledged was to John Higgins as grantee, the fact of the signing and acknowledgment was testified to by the notary and attorney. It was not stated that John Higgins participated in that transaction. It was not, therefore, “ a personal transaction or communication between the witness and the deceased person.” The reason for the enactment of section 829 to prevent a party or one interested in the’ event giving testimony as to personal transactions or communications with a deceased person, is that the deceased cannot confront the survivor or give his version of the affair, or expose the omissions, mistakes or falsehoods of the survivor. Where the transaction was not with the deceased, but with a third person in his presence, it does not come within either the letter or reason of the section.
The judgment will, therefore, have to be reversed, unless the question of the execution of the alleged deed by the plain*821tiff to the defendant has become academic by reason of the possession by John Higgins of the premises subsequent to the foreclosure of the prior mortgage upon the premises, he having become a purchaser thereof at the foreclosure sale.
The questions necessarily to be determined upon this latter branch of the case are: Did John Higgins become a mortgagee in possession? And does the defendant succeed to his rights as such mortgagee in possession, and hence is she entitled to hold the property until the plaintiff redeems by paying the mortgage debt or such portion thereof as would be found due upon an accounting for the rents, issues and profits? If the plaintiff was the owner of the equity of redemption at the time the foreclosure action was brought (and for the purposes of this discussion it must be assumed that she was), the foreclosure as to her was void. Had the omitted party been other than the owner of the equity of redemption, the purchaser at the foreclosure sale would, as to that party, become a mortgagee in possession; but where the omitted party is the owner of the equity of redemption, it has been distinctly held that the purchaser at the sale under the judgment derives no title whatsoever, and the possession of the purchaser is because of an entry without lawful authority and amounts to a trespass. (Herrmann v. Cabinet Land Co., 217 N. Y. 526, 529.) Therefore, the entry of John Higgins did not constitute him as to this plaintiff a mortgagee in possession by virtue of the deed given upon the foreclosure sale. j
It is claimed further, however, that he entered into possession with the consent and knowledge of the plaintiff, and that by reason thereof his possession will be held to be that of a mortgagee in possession; and it is true that “ whenever it appears that the mortgagor has consented, either expressly or impliedly, by contract or conduct, to the entry of the mortgagee, for purposes, or under circumstances, not inconsistent with their relative legal rights under the mortgage, the possession of the mortgagee may properly be regarded as lawful. So, on the other hand, when the entry of the mortgagee is effected by the consent of the mortgagor under a relation that is hostile to, or inconsistent with, the legal *822rights of the parties under the mortgage, then the mortgagee’s possession must stand or fall without reference to his mortgage.” (Barson v. Mulligan, 191 N. Y. 306, 322.)
It is not claimed that, with knowledge of their relation as mortgagor and mortgagee, the plaintiff actually consented to John Higgins’ entry upon the premises. In my opinion, an implied consent cannot be spelled out from the circumstances of this case. Entry was not with her express consent, nor is it shown that at the time she had knowledge that Higgins’ entry was claimed to be under the mortgage, but that his entry was hostile to and inconsistent with the rights of the plaintiff. He claimed to be in possession by virtue of the deed alleged to have been executed by the plaintiff and by virtue of the referee’s deed of foreclosure. His entry, therefore, was hostile to plaintiff’s title, and he has no right to possession as against the plaintiff until such hostile holding shall have ripened into a title by adverse possession.
For this reason I am of opinion that the judgment should be reversed and a new trial granted.
Judgment reversed and new trial ordered, with costs to appellant to abide event.