Rumpp v. Gerkens

Thornton, J.: We find no error in the record in this cause. The transactions between Leonis and the common mortgagors of plaintiff’s assignor and Leonis, did not extinguish the mortgage to the latter so that he could not use it as a protection to his rights against the subsequent mortgage to Rumpp, plaintiff’s assignor. In other words, a Court of equity will regard it as still existing as a lien, and not having merged, so as to protect him against the subsequent mortgage of the assignor of plaintiff. In law, a merger always takes place when a greater estate and a less coincide and meet in the same person in one and the same right, without any intermediate estate. The lesser estate is said to be annihilated or merged in the greater; but a Court of equity is not guided in this matter by the rules of law. It will sometimes hold a charge extinguished where it would continue to exist at law; and sometimes preserve it, when at law it would be merged. The question is one of intention, actual or presumed, of the person in whom the inter [502] ests are united. (Forbes v. Moffatt, 18 Ves. 384; Carpentier v. Brenham, 40 Cal. 235; 1 Jones on Mort., c. 20, pt. 1, on " Merger and Subrogation,” §§ 848-850, etc.) The testimony shows that Leonis did not intend that his security should merge in the deed he took from the mortgagors, or that his lien should be extinguished. The plaintiff obtained all by the decree to which she was in equity entitled. Judgment-androrder-affirmed. Sharpstein and Myrick, JJ., concurred.