249 A.D. 702 | N.Y. App. Div. | 1936
Plaintiff brought this action to reform the description in a mortgage, to foreclose the same as reformed and to have it declared a lien prior to another mortgage. The mortgagors were not the owners of the property described in the mortgage but were the owners of the lands intended to be covered. Through error the wrong description was inserted in the instrument. Later the premises intended to be mortgaged were deeded to one of defendants and the deed specifically stated that the premises were subject to such mortgage. That defendant admitted that he knew of the existence of the mortgage and he made certain payments of principal and interest thereon. Later he conveyed the premises to his daughter, another defendant, but the deed made no reference to the mortgage. The daughter gave her father a mortgage for $20,000 on the premises, which he later assigned to the defendant bank to secure a past due indebtedness. The trial court held that the mortgage should be reformed and be declared to be a lien prior to the mortgage of the defendant bank. The evidence sustains this determination. Judgment unanimously affirmed, with costs. Present-—-Hill, P. J., McNamee, Crapser, Bliss and Heffernan, JJ.