A statutory foreclosure is the execution of a power of sale given in the mortgage. The provisions of the statute, therefore, only regulate the execution of a power granted by the mortgagor. They do not (like some statutory proceedings) authorize the taking away of one’s property without any authority from the owner.
It would seem reasonable, therefore, that proceedings taken under this statute should be sustained, when the power of sale has been fairly exercised; and that, in a court possessing common-law and equity jurisdiction, any apj>arent defects in the papers should be supplied by common-law proof if it could be given. (1 R. S. [m. p.], 737, § 152; 2 R. S. [m. p.], 547, § 14.) That statute enables purchasers for a valuable consideration to have relief in equity against a defective execution of a power.
But a different doctrine seems to have been established. (Arnot v. McClure, 4 Den., 44.) And when the present case was in the Commission of Appeals (65 N. Y., 581), a very strict rule of construing the affidavits, was adopted. On the second appeal, the Court of Appeals, with that decision before them and referring to *549the same, practically adopted it; a minority only of the court expressing dissent therefrom.
And in the opinion then delivered, while the court limited the rule which excluded common-law proof, and held that it is not applicable to those affidavits which are not mentioned in section 14, they, by implication, left this rule in force as to those affidavits which are mentioned in that section. They say that oral proof was admissible, “ unless the affidavit of service was a part of the statute conveyance provided for in section 14.” From this it is to be inferred that oral evidence is not admissible to establish matters which should be in affidavits, which are a part of that statute conveyance.
The case then stands thus : The Commission of Appeals decided that these affidavits must be construed strictly. Applying that rule to the affidavit of publication, it is defective ; much more than the affidavit of service, which that court' held to be bad. Former cases have held that common-law evidence, is not admissible to supply defects in the affidavits. The Court of Appeals have modified these decisions, by holding that such evidence is competent as to defects in the affidavits of service, because those are not mentioned in section 14. The affidavit of publication is mentioned in that section. And we therefore feel compelled to hold, whatever our own judgment might be, that the evidence offered was properly excluded. And that the judgment should be affirmed with costs.
Present — Learned, P. J., Bookes and Boardman, JJ.Judgment affirmed, with costs.