(dissenting.) The mortgage given by Lewis and wife to Brake, and the contract signed by Drake, formed a single transaction or agreement between the parties, each being the consideration for the other. When read together, they disclose that the consideration mentioned in the mortgage at the sum of $60,000 was merely nominal, and not the actual consideration therefor; that the mortgage was given upon property of the value of about $100,000 to secure the mortgagee against liability as indorser, the amount of which was unknown, but supposed to be about $32,000, and also to secure the mortgagee for such advances as he might make to satisfy any judgments that were a lien upon the property mortgaged. The purpose of taking the mortgage was declared to be only to secure the mortgagee for his indorsements, and any advances which he might. make in taking up and satisfying any judgments against the mortgagors, which were a lien upon the mortgaged property. The amount of such liabilities and advances was to be subsequently ascertained, when the mortgagee was to reduce the mortgage to the actual amount paid and advanced. If the mortgagee assigned the mortgage, he was to account to the mortgagors for the full amount that he might have to pay upon the same, or which he would be liable to pay the holder thereof. When these two instruments are construed together, I think it becomes quite manifest that the intent and purpose of the agreements between the parties was that the amount of such indebtedness should be ascertained and determined before the mortgage should be enforced against the property of the mortgagors. Until the amount was thus ascertained, clearly, the amount due upon such mortgage was unliquidated. The proof discloses that the amount actually due upon the mortgage was at least $25,000 less than the amount *445stated in the notice of sale in proceedings to foreclose the mortgage by advertisement. Taking into consideration the mortgage, the agreement signed by the mortgagee at the time the mortgage was given, and the evidence given before the referee, I am led to the conclusion that it was the intent of the parties that the amount due under such mortgage should be ascertained as provided in the agreement signed by the mortgagee,-" and either indorsed upon the mortgage, or the consideration thereof reduced to the actual amount of the mortgagor’s indebtedness, before the same should be enforced against him, and that the mortgagee could not properly foreclose his mortgage by advertisement until the amount was liquidated between the parties. While this might, perhaps, have been done in an action to liquidate the amount and foreclose the mortgage for the amount found due, the mortgage could not, I think, be foreclosed by advertisement, where the amount, as in this case, was wholly unliquidated. It also appears from the evidence that many, if not most, of the judgments against the mortgagor were not paid and satisfied by the mortgagee, but were procured to be assigned to his (the mortgagee’s) wife, so that when the foreclosure was had the principal amount due upon the mortgage was the amount paid upon notes which had been indorsed by the mortgagee. It is therefore obvious that the statement contained in the notice of sale was neither actually nor substantially correct. The evidence also discloses that on July 23, 1873, the mortgagor paid to the mortgagee $5,000 to be paid by him on the liabilities of the mortgagor. On November 15, 1873, he received from the mortgagor, through Bosworth & Co., the sum of $4,725, which was used by the mortgagee in purchasing a judgment against the mortgagor. There is other testimony in the case showing quite plainly that before the amount due upon the mortgage could be ascertained a careful accounting between the parties was necessary, and that a proper liquidation of the amount due under the provisions of the mortgage required the taking of proof as to the payments and receipts by the mortgagee, and something more than a mere calculation was necessary. I am of the opinion that the proceeding to foreclose this mortgage was premature, as the right to enforce it did not exist until the amount of the mortgagee’s liabilities was ascertained or liquidated, the mortgage reduced, by indorsement or otherwise, to the correct amount secured thereby, and that the statement of the-amount due in the notice of sale was so erroneous as to invalidate the proceeding as between the parties. The statement in the notice of sale as to the amount due was not mistaken or inadvertent, but false, and must have been known to the mortgagee to be so, and rendered the proceeding invalid, and the sale thereunder void, as between the parties. Burnet v. Denniston, 5 Johns. Ch. 35, 42. In Soule v. Ludlow, 3 Hun, 503, 505, it is said:
“Relief will be given by suit to set aside foreclosure proceedings by advertisement whenever, by any fraud, mistake, deceit, or unfair contrivance or practice or bad faith in conducting the proceedings of the foreclosure sale, the rights of the mortgagor or of subsequent incumbrances have been injurir *446ously affected, upon pretty much the same grounds as the court would recognize as sufficient for opening the sale if the foreclosure had been by action.”
A mortgage cannot be foreclosed by advertisement where it is given to secure an unliquidated amount. Ferguson v. Kimball, 3 Barb. Ch. 616, 619; Jones, Mortg. (4th Ed.) § 1776; Wilkins v. Gordon, 11 Leigh, 547. The appellant does not seek by this action to disturb the title of any bona fide purchaser of the real estate sold under the pretended foreclosure. The property was bid off by the mortgagee or his attorney, who was conversant with all the facts relating to the transaction between the parties. It is an action for an accounting and recovery of the possession from the heirs of the mortgagee of the property sold, which has not passed into the hands of purchasers in good faith, upon the payment of the amount that shall be found due the mortgagee after deducting the amount he has received from the property sold to purchasers in good faith. The statute in operation when .this mortgage was foreclosed, like the present statute, provided that every sale made to a purchaser in good faith should be equivalent to a foreclosure and sale under a decree of a court of equity, so far only as to be an entire bar of all claim or equity of redemption of the mortgagor or his heirs, etc. Therefore, under this statute, the mortgagee was protected against the mortgagor’s equity of redemption only so far as he, or those claiming under him, were purchasers in good faith.
On the trial the plaintiff offered to prove by her own testimony that Mr. Hotchkiss, who was one of the defendant’s attorneys, and who served the notice of the mortgage sale upon her, said to the mortgagor at the time, and in her presence, that the foreclosure should make no difference as to the agreement between Mr. Drake and Mr. Lewis. This evidence was objected to on the ground that the plaintiff was not competent, under section 829;. that it already appeared that Mr. Hotchkiss was acting for Mr. Drake; and on the ground that it was incompetent, improper, and inadmissible. It was conceded that Mr. Hotchkiss was dead at the time of the trial. It is quite clear, I think, that the purpose of this evidence was to show that the agent and attorney, when engaged in the transaction of the business of the mortgagee, stated to the mortgagor that his rights in the property mortgaged should not be changed to his disadvantage by a foreclosure and sale under the mortgage. If this evidence was admissible, it was important evidence in favor of the plaintiff, when considered in connection with the transaction which had previously taken place between the parties, and the situation of their affairs at the time of such foreclosure. That the evidence was competent, proper, and admissible, unless prohibited by section 829, is, I think, quite obvious. It was the statement of the mortgagor’s attorney and agent, who had the entire charge and management of the mortgagee’s business and affairs, which related to the taking of this mortgage, and to its foreclosure, while engaged in the act of foreclosing the mortgage, and related to the ' rights of the parties upon such foreclosure. “Whenever an agent *447makes a business arrangement or does an act representing Ms principal, what he does in respect to - the arrangement or act, while it is in progress, is so far part of the res gestae as to be subsequently admissible in evidence on behalf of either party. Whenever the agent’s acts are so admissible, then Ms contemporaneous declarations, explanatory of these acts, aye admissible. Nor, in proving such declarations, is it necessary that he should be himself called.” Whart. Ev. (3d Ed.) § 1173. See, also, opinion of Earl, J., in Anderson v. Railroad Co., 54 N. Y. 340; Bank v. Griswold, 72 N. Y. 472, 480; Bank v. Aymar, 3 Hill, 262. Therefore, if it was admissible under section 829, the referee erred in excluding the evidence. It seems to be settled that section 829 does not apply to transactions and communications with the agents of a deceased person, although both the agent and the principal are dead. Hildebrandt v. Crawford, 65 N. Y. 107. I am of the opinion that the learned referee erred in excluding the evidence offered, as it was of such a character that, with the other circumstances and proof in the case, it might well have justified a determination of the case in the plaintiff’s favor. If such was the arrangement under which the mortgage was foreclosed, it might well be claimed by the plaintiff that the defendant’s intestate purchased and held the property in question as a trustee for the mortgagor, and that upon receiving the amount of his mortgage debt the mortgagee was liable to account to the plaintiff for the property remaining in his hands. I think the judgment should be reversed, and a new trial ordered, with costs to abide the event.