Strong v. Eighme , 41 How. Pr. 117 ( 1871 )

By the court, Talcott, J.

The complaint in this action was upon a mortgage,.described as covering certain lands-in Erie county, and sought a foreclosure and sale of the same, in the usual form, without stating that the mortgage embraced any other lands. One Umlauf, made a party defendant as a judgment creditor, alone answered, but did not allege that the mortgage covered other lands than those specified in the complaint, or claim any rights upon which that circumstance has any material bearing.

On the trial it appeared that the mortgage also covered certain lands in Cattaraugus county. Whereupon, and as is stated in the judgment, u for that reason solely,” the complaint in the action was dismissed upon the ground that the court had no jurisdiction to entertain the action or grant the usual decree of foreclosure. In this we think the court below erred. As the constitution now stands-the county courts have such original jurisdiction as maybe conferred upon them by the legislature.

The legislature has, with others, conferred upon the county courts by the 30th section of the Code, the following jurisdiction, viz.:

“ -3. The foreclosure or satisfaction of a mortgage, and the sale of mortgaged premises, situated within the county, and the collection of any deficiency on the mortgage remaining unpaid, after the sale of the mortgaged premises.”

Where the plaintiff seeks a strict foreclosure and a part of the mortgaged premises are situated within the county, or where he desires only a sale of the premises situated within the county, although the mortgage may embrace other premises, we do not see why the county court has not jurisdiction within the above provision of the Code, and the section 123 regulating the place of trial. The provision above quoted may well be supposed to have contemplated the exercise of such jurisdiction, as the limitation is not to entertain suits for the foreclosure and satisfaction of mortgages upon lands situated within the county, but that power is left general, while the restriction to lands in the county is confined to the power of sale.

If the plaintiff is willing to resort only to the lands situated in the county for the satisfaction of the mortgaged debt, and there are no reasons rendering such a resort, in the first instance, inequitable, we do not see why he may not do so In such case he will not be entitled to a decree over, against the person for a deficiency arising on the sale, as such decree ■can only be granted after a sale of all the lands covered by the mortgage. He cannot, after having obtained a decree in such case, commence another action upon the same mortgage in another county court, or in the supreme court, for to such an action a plea of transit in rem judicatam would be an answer. If any reasons exist rendering a resort to the lands lying within the jurisdiction of the court in which the action is commenced, in the first instance inequitable, as the court In such case, could not give the relief to which the defendant would be entitled, the action must be dismissed, and in such case, as a general rule, at the plaintiff’s expense, but without prejudice.

We observe that the respondent states in his points, that the mortgage in question, expressly provides, that the Cattaraugus lands shall be first sold before a resort can be had to the lands in Erie county, but this fact no where appears from the record, and we cannot go out .of the record for the facts. The judgment of the county court must be reversed and a new trial ordered, costs to abide the event.