24 N.Y.S. 369 | N.Y. Sup. Ct. | 1893
The only matter necessary to be considered by us is whether plaintiff’s right to a reformation of the mortgage in suit was barred by the statute of limitations, and, if so, whether such a reformation was necessary to sustain the judgment rendered. It. is suggested that the question involved has not been passed upon by the court of appeals. But there are several well-considered cases in this court holding that an action to reform a deed must be ■brought within 10 years, and we deem it right to follow those de
But the learned counsel for plaintiff claims, as I understand his position, that the agreement of defendant, in consideration of the $3,000 advanced to him, to execute a mortgage upon all of his real estate, was, in equity, a mortgage thereon, and that a portion of the said real estate, being omitted by mistake, and not included therein, will be treated, in equity, as'being embraced therein, and that hence, in fact, no reformation of the instrument was necessary; that, there being a valid equitable mortgage upon all of defendant’s premises, the action thereon is not barred while the bond remains in force. This position is. a novel one, and, we think, cannot be sustained. The parties having reduced their contract to writing, the writing, unless reformed, must govern. Doubtless, if the ac
Code Civil Proc. § 382, subd. 5, provides that an action to procure a judgment, other than for a sum of money, on the ground of fraud, may be commenced within six years after the discovery of the fraud.
Code Civil Proc. § 388, provides:" “An action, the limitation of which is not specially prescribed in this or the last title, must be commenced within ten years after the cause of action accrues.”