132 N.Y.S. 460 | Oneida County Court | 1911
This action is in foreclosure, and the complaint is in_ about the usual form in such cases, except as it may be modified by the absence of a bond or other per
Upon the trial of the action the plaintiff offered the mortgage upon which the suit is 'brought in evidence and rested; and the committee did not offer any evidence, resting his case upon several points of law which lie has raised; and it, therefore, becomes necessary to consider those points in detail.
It is claimed that the committee as such was a necessary party to the action. Section 426 of the Code of Civil Procedure, paragraph 2, provides that, if the defendant is a person judicially declared to be 'incompetent, and for whom a committee has been appointed, service of the summons shall be made upon the “ defendant ” and also upon the committee. Section 428 of the Code makes provision in such a cáse for the appointing of a special guardian acl liiem, “ where the court has, in its opinion, reasonable ground to believe” that the interest of the incompetent requires it. These provisions do not seem to indicate an intention on the part of the law makers to provide that, in such a case as the one at bar, it is necessary to make the committee also a party. It would seem that the purpose of the statute is tg give him permission to come in and protect the rights of his ward, as has been done in this case, without haying the committee formally made a party to the action. I think the decision in Behlen v. Behlen, 73 App. Div. 143, is to that effect.
The committee raises the further-point that the plaintiff must allege and prove, as a part of his case herein, that a committee has been appointed, and that permission has been given to bring suit, and cites Scofield v. Doscher, 72 N. Y. 491, as authority for that proposition. That was an action brought to recover an alleged deficiency arising on foreclosure and sale against an executor; and the court held that an action was not maintainable 'without leave' of the court, and that the plaintiff must affirmatively plead and prove that consent. The question thus raised is not without diffi
It is the plaintiff’s claim that a seal may be construed into the instrument, thus carrying out what plaintiff’s attorney claims is the obvious intent of the mortgagor. The instrument winds up with the usual clause: “ In witness whereof, the party of the first part has hereunto set her hand and seal the day and year first above written.” This is followed by the usual “ sealed and delivered in the presence of,” and then follows the signature of defendant Sarah J. Reynolds; but there is no' seal nor anything which the law will consider such. It is the claim of the plaintiff that, under section 348 of the Code, and Barnard v. Grantz, 140 N. Y. 258, and Town of Solon v. Williamsberg Savings Bank, 14 id. 134, and other cases cited by him, this court has the equitable power to amend or revise a mortgage the same as the Supreme Court would have. It is held in Thomas v. Harmon, 122 N. Y. 84, that an action to foreclose a mortgage and an action to reform a mortgage are independent remedies that may be attained by separate actions open to separate and independent defenses, and that the power to foreclose a mortgage does not include, as incidental thereto, the power to reform it and that, hence, a County Court has no jurisdiction under section 348 of the Code to reform a mortgage.
. In Mead v. Langford, 56 Hun, 279, the reformation of a bond, accompanying the mortgage sought to be foreclosed, was held to be “ secondary and ancillary ” to the proceeding to foreclose, and that it was, therefore, within the jurisdiction of the County Court to grant that relief. It is probably unnecessary to decide whether the power to reform the instrument at bar rests in this court, because, it seems to me that a seal is unnecessary. As the law now exists, a seal simply imports a consideration and appears to be principally useful when that matter comes into question. "The paper in suit recites a consideration of $1,500, which of course is sufficient. Moreover, it does not appear that a seal is any
I,, therefore, reach the- conclusion that, in the present state of the law, a seal is not necessary upon a mortgage, and that in that particular the instrument in suit does not require any reformation. -
The committee raises the further claim that no action can be maintained unless there is contained in the mortgage sought to be foreclosed, or some accompanying instrument, a promise to pay the debt thereby secured, citing Borst v. Corey, 15 N. Y. 505. That was an action in equity to foreclose a claim for a purchase money loan in a case in which no bond or mortgage had been given. The court held that the claim became outlawed after the lapse of six years. In the course of the opinion the court .remarks that “ Ro action at law can be predicated upon the mortgage, to collect the debt secured thereby, unless there is contained therein a •covenant to pay the debt.” At another point the court said: “ It would be an anomaly if the plaintiff could recover his debt by an action to enforce the lien given to secure the debt, when no action could be sustained to recover the debt directly without reference to the lien.” As there was no mortgage at all in the Borst v. Corey case, the statements above referred to are more or less obiter. In Hulbert v. Clark, 128 N. Y. 295, that case was questioned and practically overruled, it being there held that a lien or bond given as security for a debt is no't impaired by the fact that the remedy at law for the recovery of the debt is barred by the statute, and permission was given for the foreclosure of that mortgage given tp secure payment of notes, which themselves were outlawed when the action was begun. In the case at bar the “mortgage” contains this clause: “And in case default shall he made in the payment of the principal sum hereby intended to be secured, or In the payment of the interest' thereof, or any part of such principal or interest, as aboye provided, it shall be lawful for the party of the second
This egregious mortgage does not contain the usual “ interest clause,” viz., a provision commonly contained in mortgages that, upon failure to pay any instalment of interest, the whole principal thereupon becomes due at the option of the mortgagee. Neither does it contain any provision, customary to mortgages, that upon payment of the sum for which the mortgage is given as security the estate of the grantee shall thereupon cease and become void. While both of these provisions are important and are usual in mortgages, I do "not agree with the committee’s contention that the absence of either or both . of them is of such controlling importance that the instrument must be reformed by a court of equitable jurisdiction, or that some special or different action, other than that in mortgage foreclosure, which plaintiff has brought, is alone applicable as a 'remedy to plaintiff. It must be borne in mind that, by the terms of the instrument in question quoted above, upon the happening of a default, the' plaintiff is given the power to “ sell the mortgaged premises in the manner prescribed by law.” Plaintiff does not seek any deficiency judgment, and her proceedings are strictly in rem. I think plaintiff is -entitled to proceed with her action, and in its present form.
■ Lastly, I think, the committee raises the point that this mortgage is “ outlawed.” The mortgage in question is dated October 1, 1898, and provides: “ This grant is intended as-a security for the payment of $1,500 in 10 years from date hereof, with interest at 5{f payable quarterly.” It seems that no payments of - interest whatever have been made upon this mortgage, and the committee contends that the instrument (not being under seal) outlawed in six years from the date of the maturity of the first instalment of interest, which would
There is still another point raised by the committee, which is that even if the mortgage is held to be not outlawed, the
Plaintiff may have judgment of foreclosure and sale in the usual form, her recovery, however, to be limited to interest accruing within six years prior to the commencement of this action.
Findings and decree may be prepared accordingly.
Judgment accordingly.