The plaintiffs claim to have made an agreement with defendant under which, after the defendant had obtained, by a •subsequent sale or exchange of the property after foreclosure sale, all that was due it, the remainder of the property covered by the mortgage ■should be returned to them. Mr. Easling testified that defendant’s representatives said:
“ ‘When we get our money out, or our security, the balance of this property belongs to you.’ * * * He said he would let me have the handling of this property, and get either money or security, or trade it, or any way like that. * * * ‘If this Gatz deal [one of the exchanges of property in ■contemplation] don’t go through, I will let you have—if we foreclose this mortgage, I will let you have—the same privilege with the property that you have now; you can sell or trade, any way to get our money out of it, and we won’t take no deficiency judgment back against you. * * * We will give you a writing to that effect.’ ” ■ "
No written agreement was made, but the plaintiff is corroborated to some extent by other witnesses, and his agreement is strongly borne out by the facts in the case. After the foreclosure action had been begun, the plaintiffs were permitted to see if they could not satisfy the defendant’s claim before sale under the foreclosure, either by a sale of the premises covered by the mortgage, or by an exchange of the property for other property satisfactory to the defendant, so that the plaintiffs might save in this manner their equities in the property. Both the East Rochester and Rochester properties were incumbered, but there was an equity in both of them in favor of the .plaintiffs which amounted to upwards of $6,000.
The plaintiffs had, with defendant’s consent, negotiated with one - Barnes and Gatz for an exchange of their properties; the former deal relating to the East Rochester property, and the latter to the Rochester property. Both agreements were in writing. Under the Barnes deal there was an equity in the East Rochester property of $3,400, and in the Rochester property, according to figures made by defendant’s representative, of $4,825. Together the equities in both pieces of property, .as the parties talked them over in connection with their deal, amounted to $8,225. The deals, however, did not go through before the foreclosure sale; but that, it was expected that they would is quite evident from the fact that the plaintiff had no one at the sale to bid on the property, and did not bid on the property' himself, and the property was *531sold for $75, and a deficiency judgment taken against the plaintiffs-for $2,018, although the original claim secured by the mortgage was $1,483. The omission of the plaintiffs to take any steps to protect their equity in the property at the sale, and the nominal amount for which the property was struck off to the defendant, is some substantiation of the claim of the plaintiffs with reference to the agreement; and the completion after the sale of one of the deals which they had negotiated prior to the sale is another circumstance tending to support their position.
The Barnes agreement, which they had brought about prior to the sale, was substantially carried out by the defendant after the sale, and, under it, it must be assumed that the defendant received the same benefit that the plaintiffs would have received, had the agreement been carried out prior to the sale. This transaction alone would have been sufficient to satisfy the defendant’s claim, had it been completed prior to the foreclosure sale; and it is inequitable to permit the defendant to retain the fruits of this exchange of property and the equity in the Goodman street property in satisfaction of a claim of $1,483.
The agreement made by the parties is one which a court of equity will enforce. A plaintiff, on a foreclosure of real property, will be compelled to account and reconvey under an agreement that, when it gets its money out of the property, the balance of the property shall belong to the mortgagor, where it appears that, after the sale on foreclosure, it has received more than the amount of its claim, with interest, costs, and expenses, from a private sale or exchange of a part of the mortgaged premises. Ryan v. Dox, 34 N. Y. 307, 90 Am. Dec. 696; Canda v. Totten, 157 N. Y. 281, 51 N. E. 989; Bork v. Martin, 132 N. Y. 280, 30 N. E. 584, 28 Am. St. Rep. 570; Kincaid v. Kincaid, 8 Hun, 141, 32 N. Y. Supp. 476; Newman v. Nellis, 97 N. Y. 285; Noble v. McGurk, 16 Misc. Rep. 461, 39 N. Y. Supp. 921; Greenly v. Shelmidine, 83 App. Div. 562, 82 N. Y. Supp. 176.