122 N.Y. 84 | NY | 1890
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *86
The object of this action, as the complaint shows, was first to reform and then to foreclose the mortgage in question. The findings of the trial court and the judgment entered thereon effected that object so far as the County Court had jurisdiction to entertain such an action and to make such a decree. The fact that an agreement was entered into by the parties but that, through mutual mistake, the mortgage in its written form did not express what was really intended by them, as found by the court, was warranted by the evidence and was sufficient to authorize a court of equity to decree reformation. (Rider v. Powell,
The only question open to discussion is whether the County Court has jurisdiction of an action to reform a mortgage where part of the relief demanded is the foreclosure of such mortgage after it has been reformed. The County Courts are not courts of general jurisdiction, but have such powers as have been expressly conferred upon them by the Constitution and by the legislature pursuant to the authority of the Constitution. (Griswold v.Sheldon,
We think, therefore, that the power to foreclose a mortgage does not include as incidental thereto the power to reform it, and hence that so much of the decree of the County Court as purports to correct the mistake in question was made without jurisdiction and is void.
The appellant claims that he had a written mortgage upon one-half of the premises and an unwritten or equitable mortgage upon the other half, and that the County Court had power to foreclose both, but we think that the statute when it refers to "the foreclosure, redemption and satisfaction of a *91 mortgage upon real property," means a written mortgage only. It is also claimed that an action to reform a mortgage is an action "to procure a judgment requiring the specific performance of a contract relating to real property," within the meaning of the Code. (§ 340.) We agree, however, with the learned General Term in holding that this provision has reference to contracts that are complete, and that it does not extend to the reformation of an imperfect instrument, even if it is a lien upon land and in that sense related to real property.
The judgment should be affirmed, with costs.
All concur, except BRADLEY and HAIGHT, JJ., not sitting.
Judgment affirmed.