Whitney

In 1884 one Burnbam, tbe assignee of a mortgage outstanding on tbe land involved in tbis case, took a release of tbe equity of redemption by a deed wbicb contained tbe recital that “ tbis conveyance shall not operate to merge title acquired by assignment of mortgage.” There is nothing to show any interest or estate intervening between tbe mortgage title and the equity of redemption. There is no further assignment of tbe mortgage on tbe records. Burnbam died in 1892. Tbe mortgage does not appear in tbe inventory of -bis estate. Tbe petitioner claims title under bis heirs. Tbe Examiner questions tbe continued existence of tbe mortgage title, and suggests that a discharge should be obtained. Tbe suggestion is clearly justified by tbe language of some of tbe text books and by decisions in some of tbe ■States. It is commonly said that whether merger takes place or not is purely a matter of intention. In some states it seems to be held that tbe intention is strictly a matter of fact, and .that a purchaser can not rely upon tbe record even under a warranty deed; in others that tbe intention is a presumption of law regardless of tbe actual or expressed intentions of the parties. These cases are collected and cited in Jones on Mortgages, Sections 872 and 873. In some of tbe Massachusetts cases also, tbe intention of tbe parties is spoken of as tbe controlling element, but it is always an intention presumed from their interest, from tbe existence or non-exist [46] ence of an intervening right, not merely from their expression of a purpose. It seems to be the invariable rule in Massachusetts, and it seems to be the true rule of law on principle, that whether merger takes place or not, depends, not upon the actual intention of the parties, expressed or unexpressed, but upon whether there is or is not an intervening interest or right to keep the two titles apart. Hunt v. Hunt, 14 Pick., 374, 383. Evans v. Kimball, 1 Allen, 240. Grover v. Thacher, 4 Gray, 526. Savage v. Hall, 12 Gray, 363. Crosby v. Taylor, 15 Gray, 64. Strong v. Converse, 8 Allen, 557. Carlton v. Jackson, 121 Mass., 592. Dickason v. Williams, 129 Mass., 182. Keith v. Wheeler, 159 Mass., 161. In many cases the question is perhaps not one of technical merger, but rather of extinguishment, either of the mortgage title by payment of the debt in fulfilment of the condition of the deed, or of the conditional right itself. Dexter v. Harris, 2 Mason, 531. Loud v. Lane, 8 Met., 517. Kneeland v. Moore, 138 Mass., 198. (Note: — And see Lydon v. Campbell, 198 Mass. 29.) But whether the effect of the acquirement by one holder of the two interests be technically the drowning of a lesser in a greater estate by merger, or the mere extinguishment of a conditional estate or right leaving an unclouded fee under the major title, the result is the same, and so is the criterion as to whether the separate interests shall or shall not come together to produce this result. Some confusion is caused by cases which really turn on equitable estoppel rather than on merger as a matter of legal title. Thus in the Michigan case of Ann Arbor Bank v. Webb, which was a bill to foreclose a mortgage, equity refused to recognize the mortgage title because of the fraud by which the assignment was obtained. Young v. Hill in New Jersey was a bill in equity for relief; and here the Court refused to recognize the merger, not because the merger was prevented by any intention of the parties, but because [47] tbe “ legal advantage obtained by cancellation ” (thus expressly recognized) “ the defendant conld not in conscience be permitted to retain.” The Massachusetts case of Aldrich v. Blake was a bill in equity, and the court waived any decision on the question of merger, because whether there could be a merger or not, equity would not in that case allow it. Ann Arbor Bank v. Webb, 56 Mich., 377. Young v. Hill, 31 N. J. Eq., 429. Aldrich v. Blake, 134 Mass., 582. In the case at bar there is no reason for the interposition of equity to stop or change the ordinary course of the legal title. The mortgage title and the equity of redemption came together in the same person. There being no intervening interest to keep them apart, they merged of necessity. Decree for petitioner.