
    John Thomas, as County Treasurer of the County of Genessee, Resp’t, v. Harriet E. Harmond et al., App’lts.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 21, 1887.)
    
    1. County courts—Jurisdiction of—New York constitution, art. 6, § 15—Code Civ. Pro., §§ 340, 348—Jurisdiction limited by constitution AND STATUTES.
    The defendant executed to a predecessor in office of the plaintiff, his successor in office, as assignee, a bond and a mortgage on the undivided half of certain real property. The complaint alleged that a mistake was made in drawing the mortgage, that it should have included the whole instead of the undivided one-half of the property, and that such was the agreement before the execution of the mortgage. This action was brought in the county court to foreclose the mortgage, and also to correct the mistake and obtain judgment for the sale of the whole. The New York state constitution, article 6, section 15, continues the powers and jurisdiction of the county courts as before existing, and confers original jurisdiction in all cases where the defendants reside in the county, not exceeding $1,000, also such other original jurisdiction as the legislature should confer. Code Civil Procedure, section 340, gives county courts, among other things, jurisdiction for the foreclosure, redemption or satisfaction of a mortgage upon real property, or to enforce a judgment requiring the specific performance of a contract relating to real property, where the real property to which the action relates is situated within the county. Section 348 provides that where a county court has jurisdiction of an action, or a civil proceeding, it possesses the same jurisdiction, power and authority in and over the same, and in the course of proceedings therein, which the supreme court possesses in a like case; and it may render any judgment or grant either party any relief which the supreme court may render or grant in a. like manner, and may enforce its mandates in like manner as the supreme court. Held, that the jurisdiction of the county courts was limited to that conferred by the constitution and statutes.
    2. Same—Jurisdiction over matters incidental to main subject of action.
    
      Held, that in the present case the county court had jurisdiction to correct the mistake and reform the mortgage only in case that it was incidental to the foreclosure of the mortgage.
    3. Same—Have not jurisdiction to reform mortgage in action for foreclosure.
    
      Held, that the correction of the mistake and reformation of the mortgage were not incidental to the foreclosure of the mortgage, and that therefore the county court had no jurisdiction for that purpose. Bbadley, J., dissenting.
    Appeal from a portion of the judgment of the county -court of Genessee. .
    
      H. R. Cone, for app’lt; N. A. Woodward, for resp’t.
   Corlett, J.

—On the 14th day of March, 1881, the defendant, Harriet E. Harmond, executed to Jerome 0. Guiteau, treasurer of Genessee county, his successors in ■office and assigns, a bond to secure the payment of $350 in two years from date, with semi-annual interest, and a mortgage on the undivided one-half of lot 21, in the village of Batavia, as security. The complaint alleged that a mistake was made in drawing the mortgage; that it should have included the whole of lot 21, instead of the undivided one-half, and that such was the agreement before the ■execution of the mortgage.

The action was brought to foreclose the mortgage, also to •correct the mistake and obtain judgment for the sale of the whole. The mortgagor put in issue the allegations of mistake. A trial was had in the Genessee county court, which resulted in a finding for the plaintiff on that question, and a decree of foreclosure including the omitted one-half. Judgment was'entered accordingly. The evidence was sufficient to warrant the county court in finding in favor of the plaintiff on the above issue. The defendant appealed from that portion of the judgment correcting the mistake and adjudging a decree of foreclosure of the part not covered by the mortgage. Section 15 of article 6 of the ■constitution, adopted in January, 1881, continues the powers and jurisdiction of the county courts as before existing, and confers original jurisdiction in all cases where the’defendant’s reside in the county not exceeding $1,000, also such other original jurisdiction as the legislature should confer. Section 340 of the Code gives county courts, among other things, jurisdiction “for the foreclosure, redemption, or satisfaction of a mortgage upon real property, or to procure a judgment requiring the specific performance of a contract relating to real property, where the real property to which the action relates is situated within the county.”

Section 348 provides that “where a county court has jurisdiction of an action, or a civil proceeding, it possesses the same jurisdiction, power and authority in and over the same, and in the course of proceedings therein, which the supreme court possesses, in a like case and it may render any judgment or grant either party any relief which the supreme court may render or grant in a like case, and may enforce its mandates in like manner as the supreme court.”

It is a familiar rule that county courts have no jurisdiction except that conferred by the constitution and statutes. Frees v. Ford, 6 N. Y, 176.

The power to foreclose a mortgage cannot be extended so as to include equitable liens like a proceeding to enforce the payment of the purchase money of lands. Reference is had to a mortgage in the ordinary sense of the term, one in writing describing the premises sought to be foreclosed. There is no dispute or controversy in this case as to the lands covered by the mortgage. They embrace the undivided one-half of village lot 21. No question is made but that the county court had jurisdiction to foreclose that mortgage. The only point here is whether it also had jurisdiction to correct a mistake, and include in the decree •of foreclosure, lands not covered by it.

If the correction was an incident, jurisdiction existed, otherwise not. So that the whole controversy is narrowed down to the question whether that portion of the decree correcting the mutual mistake and adjudging the mortgage a hen upon the whole lot is within the jurisdiction of the county court as an incident. It had power to foreclose the lands actually covered: BurriU’s law dictionary defines incident as belonging or appertaining to, following, depending upon another thing as more worthy or principal.” “A thing may be necessarily or inseparably incident to another, •or usually so.”

To every estate in lands the law has annexed certain peculiar incidents which appertain to it, as of course, without being expressly enumerated.”

Webster defines it thus: In law, something necessarily appertaining to and depending on another, which is termed the principal.”

It is difficult to see how lands not covered by the mortgage are incident to those which are. No importance can be attached to the fact that the mortgage only covers an undivided part or portion of a lot or farm. The balance is no more incidental than a separate lot or farm. If, in this case, the agreement covered a separate lot, or a number of separate lots, all of which were omitted by mistake, the correction could be adjudged and a foreclosure ordered the same as in this case. If the original agreement provided for the mortgage of a number of pieces of land to secure a loan, and by mutual mistake some of them were omitted in the mortgage, all could be included in an action to foreclose the lands covered in case an undivided portion can. It is true that the only change would be to increase the relief. But if such a result is produced by including other property, it cannot be said to be only an incident. Within the definitians incidents are attached to the principal, but other lands from those mortgaged occupy no such position and sustain no such relation. Otherwise, under claim of relief, property might be included of many times the value of that covered by the mortgage.

Avery v. Willis, 24 Hun, 548, decided in the third department in 1881, differs from this in that there was nothing to foreclose without a previous correction. The same is true here in reference to that portion not covered by the mortgage. It was first necessary to ascertain and adjudge the mistake, which was done, then the foreclosure was» ordered. The only distinction claimed is that here there was some land covered by the mortgage of which the county court had jurisdiction, and that this fact conferred power to include other lands as incidents. • The reasoning in the above case is decisive of this. The court say, “undoubtedly a court of general equity jurisdiction might enter in an action for the double purpose of declaring a lien and enforcing it by foreclosure. .Such actions have been frequently maintained in the supreme court, still the remedies sought are independent remedies, and might be obtained by separate actions, and which would be open to separate and independent defenses.

“The proceeding to obtain a reformation of the mortgage is in no respect secondary or ancillary to the proceedings to foreclose the mortgage. On the contrary, it is primary in purpose, and importance, as no relief by foreclosure could be had until the reformation of the mortgage could be decreed. The right to foreclose was dependent on this relief, and this relief could only be obtained by an action in equity. It follows that the county court had no» jurisdiction of this leading, independent and controlling branch of the case.”

In that case the complaint was dismissed because no lands were embraced within it which could be foreclosed. The same is true in this case of the undivided one-half which could not be foreclosed until the mistake was corrected. That was a condition precedent. It follows, therefore, that the case in Hun is decisive of this case in principle, unless the fact that it has jurisdiction to foreclose a portion of lands embraced in the complaint, also confers the right to-correct mistakes as an incident by including in the decree lands outside of the mortgage. If this view obtains, there would be no limit to its application. All lands embraced in the original agreement, although most of them were left out of the mortgage, could be included in the decree of foreclosure. The findings and judgment in this case show that the correction preceded the decree of foreclosure as to the lands not covered by the mortgage. It might well be claimed that the legislature should confer power upon county courts to dispose of the whole controversy in a single action. The conclusive answer is that none has been conferred. The able court, before whom this case was tried, was undoubtedly impressed with the conviction that justice required a disposition of the whole controversy in a single action. Still the questions of power must be met. If it was lacking, neither the purchaser nor the grantee would acquire title. The land might become valuable and invite scrutiny and litigation. If there was a lack of jurisdiction of the subject matter, the decree might be attacked. Ferguson v. Crawford et al., 70 N. Y., 253.

The fact that the county court has the same power as the supreme court in the foreclosure of mortgages is of no importance, for that court could not decree the foreclosure of lands not covered by the mortgage without first correcting mistakes. Power is conferred by the code upon the county court to enforce a specific contract relating to land, but this does not include the correction of mistakes. In granting specific performance of contracts, reference is had to those which are complete.

In Oakville Company v. The Double Pointed Tack Co. (105 N. Y., 658; 7 N. Y. State Rep., 528), the plaintiff alleged a mistake in the written contract, and sought reformation so as to correctly express the agreement. The trial court found that no mistake existed. The plaintiff then sought to obtain a construction of the contract as drawn, claiming it meant the same as if the correction had been granted. The court held that that question could not be considered as the construction involved a simple question of law, which could not be determined in the action for a reformation. So, in this case, the statute confers power to foreclose the mortgage. That is, within the jurisdiction of the county court. But the power to grant a reformation, or to correct a mistake, has never been granted. The omission is one for the legislature, not the courts. It follows that the portion of the judgment appealed from should be reversed, but without costs, with leave to proceed in the supreme court for correction and appropriate relief.

Haight, J., concurs.

Bradley, J.

(dissenting).—The conclusion of the trial court that the mortgage was so drawn as to embrace within its terms only an undivided one half of the premises when the parties intended that it should cover them entirely, is supported by the evidence. And the plaintiff was entitled to the relief given in that respect, unless there was a want of power in the county court to grant it. The constitutional limitation is not in the way of legislative provision for the requisite jurisdiction. Const., Art. 6, § 15. But the jurisdiction of the court is dependent upon the statute,' which, amongst other things provides, that it has jurisdiction of an action for the foreclosure, redemption and satisfaction of a mortgage upon real property: Code Civ. Pro., § 340. And that where a county court has jurisdiction of an action, it posesses the same jurisdiction, power and authority in and over the same, and in the course of the proceedings therein, which the supreme court posesses in a like case. Id., § 343. The purpose of the action was the foreclosure of the mortgage, but to make that relief effectually represent the security which the parties intended to produce by the mortgage its reformation was within that asked for and given, and was properly the subject of determination in such cases by courts having ample equity powers. Maher v. Hibernia Ins. Co., 67 N. Y., 283; Andrews v. Gillespie, 47 N. Y., 487; Meyer v. Lathrop, 73 N. Y., 315. The statute does not confer on county courts jurisdiction of actions to reform written instruments. And if that feature in this case is necessarily to be treated as a substantive cause of action, there may be some difficulty in supporting its maintenance in that respect. But such does not seem to be the situation. The action is to make available by foreclosure the security furnished by the mortgage, the terms of which were so qualified by a clerical error that they failed fully to represent the security required by the contract, pursuant to which it was made and taken. The correction given by the court below was not essential to the creation of remedy, but was in aid of it, and its effect was to enlarge the measure of relief in the action to foreclose the mortgage.

The cited case of Avery v. Willis (24 Hun, 348), is distinguished from the case at bar by' the fact that the. relief, by way of foreclosure, depended upon the reformation of the mortgage. The primary cause involved in the remedy and essential to the ultimate relief, required the insertion of a defined parcel of real property in the instrument. Here the terms of the mortgage furnished a complete cause of action in foreclosure, and the reformation in view related only to the extent of the relief to be awarded by the judgment.

The failure to express in it correctly, the understanding of the parties was occasioned by the clerical error of inserting words which reduced in terms the quantity of the estate in the premises described to one-half that intended by them to be embraced within it. Inasmuch as the nature of the action is the foreclosure of the mortgage, the fact that the reformation may have been the subject of an independent cause of action does not necessarily characterize its gravamen. When the court took jurisdiction of the action to foreclose the mortgage, it became possessed of all the powers necessary in the course of the proceedings to accomplish the result, as is, and perhaps unnecessarily, declared by the statute before referred to. And as incidental to it, was the correction of such clerical errors and mistakes as were requisite to its accomplishment. While this in some sense is a distinct feature in the action, it does not go to modify or change the mortgage as made between the parties, but it involves the correction of an expression used in the instrument as drawn, so as to bring the relief to which the plaintiff is entitled within the terms of the security.

This, I think, was incidental to the cause of action and not essential to its support, although necessary in a measure to the relief given by the judgment, and was within the powers attending the exercise of the jurisdiction of the court.

I am therefore unable to concur with the views and conclusion of Mr. Justice Corlett, and think the judgment should be affirmed.  