to the effect,” etc. It seems clear that this affidavit is required to enable the mortgagee to recover the attorney’s fee agreed upon in the mortgage, and for no other purpose; hence a failure to file it can only result in the failure to recover such attorney’s fee. There is nothing in the case to show us that any such attorney’s fee was ever recovered in these proceedings. Even if such fee was included in the amount for which the land was sold, we cannot assume that such fee has been paid to the mortgagee, and the mortgagor is entitled, on demand, to any amount recovered on the sale in excess of what was in fact due on the mortgage. Comp. Laws, § 5424. The fact that the officer making the sale realized more than was in fact due, certainly is not to the disadvantage of the mortgagor. Nor would a mistake of the officer in ascertaining such amount in any manner bind the mortgagor or relieve the officer from liability to him for any surplus beyond the actual amount going to the mortgagee, and, if such excess had been paid to the mortgagee, then both the officer making the sale and the mortgagee recovering the money would be liable to the mortgagor for the amount of such excess upon demand made. Millard v. Truax, 47 Mich. 251, 10 N. W. Rep. 358; Kennedy v. Brown, 50 Mich. 336,15 N. W. Rep. 498. Section 5420, Comp. Laws, is as follows: ‘“ Whenever any real property shall be sold by virtue of a power of sale contained in any mortgage, the officer or person making the sale shall immediately give to the purchaser a certificate of sale containing (1) a particular description of the real property sold; (2) the price bid for each distinct lot or parcel; (3) the whole price paid. And such officer or person shall file in the office of the register of deeds where the mortgage is recorded, within 10 days from the day of sale, a duplicate of such certificate; which certificate must be executed and acknowledged, and may be recorded as provided in case of a certificate of sale of real property upon execution, and shall have the same validity and effect.” It will be noticed that it is the duty of the officer or person making the sale to file a duplicate certificate. The section throws no duty upon the purchaser. It is the certificate required by this section that the court found was not filed until 18 days after the sale. The
