
    (70 Hun, 512.)
    SPRAGUE v. COCHRAN.
    (Supreme Court, General Term, Third Department.
    July 8, 1893.)
    J. Limitation op Actions—Reformation of Mortgage—Mutual Mistake.
    Where, by mistake of a scrivener, a parcel of land is omitted from a mortgage, an action to reform is not governed by Code Civil Proc. § 382, subd. 5, providing that an action to recover a judgment, other than, for a sum of money, on the ground of fraud, may be brought within six years after discovering the fraud, but an action must be brought under section 38S, within ten years from the delivery of the mortgage.
    ■3. Equitable Mortgage—What Constitutes.
    Where a landowner agrees to give a mortgage upon all his land, but, by mistake of the scrivener, a parcel is omitted, the agreement will not be considered an equitable mortgage on all the land, so as to avoid the necessity of a reformation of the mortgage deed.
    Appeal from special term, Sullivan county.
    Action by Warner E. Sprague against William B. Cochran to .foreclose a mortgage. After the commencement of this action an application was made by defendant to bring plaintiff into an .action brought by defendant against Antoinette Appley and others, and the motion was granted. The case of Cochran v. Appley and ■others was tried before a referee, and at its close this case was, by stipulation, submitted to the same referee for hearing and determination on the evidence already taken in the case of Cochran v. Appley and others. A motion to amend the complaint in this action so as to ask for a reformation of the mortgage was made at the close of the trial before the referee. The referee did not grant the motion, but found certain facts and law, and plaintiff made a motion to amend at special term. From an order granting the motion to amend, and from a judgment of foreclosure, defendant appeals.
    Order reversed, and judgment modified.
    On February 9, 1876, defendant gave a mortgage which was 'intended to cover all the land owned by him, but, by mistake of the .scrivener, one lot was omitted. An action to foreclose was begun September 15, 1887; and not until afterwards was the omission discovered, when an application was made, in July, 1891, to amend the complaint so as to ask for a reformation of the mortgage.
    Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.
    George H. Carpenter, for appellant.
    T. F. Bush, for respondent.
   PUTNAM, J.

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 decisions. Hoyt v. Putnam, 39 Hun, 402; Oakes v. Howell, 27 How. Pr. 145; Cramer v. Benton, 4 Lans. 294. Burnett v. Wright, (Sup.) 17 N. Y. Supp. 309, was an action to foreclose and reform a mortgage drawn on one of the usual blanks, the scrivener omitting to insert in the defeasance clause the amount of the mortgage debt. It read thus: “This grant is intended as security for the payment of -,”—without inserting any amount. The action was brought 19 years after the execution of the instrument. This court held that it was a case where it was necessary to reform the mortgage, and that the action for the reformation must be brought within 10 years. The judgment was reversed by the court of appeals (135 N. Y. 543, 32 N. E. Rep. 253) on the sole ground that no reformation was required; that the mortgage had as much force as if drawn in the form of a deed; and that a defeasance need not ever be in writing, but may be shown by paroi. The court of appeals did not overrule the doctrine declared by the general term, that an action to reform a deed must be brought within 10 years, but apparently acquiesced, in that regard, in the decision of the court below. Hence the case cited is an authority that 10 years’ limitation applies to an action to reform a mortgage. I am unable to concur in the view stated in Syms v. Mayor, etc., 50 N. Y. Super. Ct. 289-294, as applicable to such a case as this. The error in the description of the mortgage in suit was caused by a mutual mistake, as found by the referee. There was no fraud, actual or constructive. Hence the provisions of subdivision 5, § 382, Code Civil Proc., are not applicable. The cause of action accrued on the delivery of the mortgage, over 10 years prior to the commencement of the action. It is a case where the provision of section 388 applies. The case of Welles v. Yates, 44 N. Y. 525, was a case of fraud, and hence not similar to the one under consideration. We therefore conclude that the right to reform the mortgage was barred by the statute of limitations.

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 actian had been commenced in time, equity could have reformed the contract, and made it conform to the real agreement of the parties. But, the right to reform having been lost by the lapse of time, the written contract must govern. In Burnett v. Wright, supra, it did not, apparently, occur to the members of the court at general term, or in the court of appeals, that the mortgage in that case was an equitable one, and was, to all intents and purposes, as valid as though the agreement of the parties had been wholly embraced therein. The general term, in effect, held a contrary doctrine; and the court of appeals decided that it was not an equitable, but a legal, mortgage. In that case, had the mortgage only covered a part of the premises agreed to be covered, I infer from the opinion that the court of appeals would have held a reformation necessary. Our conclusion is that the order allowing an amendment should be reversed, and the motion denied, and the judgment should be modified in pursuance of this memorandum, with costs to the appellant. All concur. 
      
       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.”
     