Powell v. Smith

Cooley, J. The owner of lands who treats a mortgage upon the lands, which has been assigned to him, as a valid instrument, and transfers it as such, is estopped from insisting, as against the assignee or any one claiming under him, that in his hands it had merged and disappeared in the fee. There is nothing to take this case out of the rule. It is immaterial that remedy at law upon the note which accompanied the mortgage was barred; that would not affect the validity of the mortgage or the remedy upon it.—Mich. Ins. Co. v. Brown, 11 Mich., 265. It is also immaterial that the owner of the lands subsequently sold them. Had the purchaser bought before":the assignment of the mortgage by his grantor was recorded, he would have had a right to understand that the mortgage was merged; but in this case the two assignments,-^-the one to his grantor and the one by him, — were both recorded together, so that the same — 453 — record which informed him of tbe facts which at common law would constitute a merger, also notified him of the assignment which created tbe estoppel. The decree must he set aside, and the case remitted with directions to enter a decree for complainants as prayed in the bill, witb costs, and for further proceedings. But in view of tbe fact that the respondents are representatives of an estate which may he embarrassed by an immediate sale, the decree should not provide for a sale under ninety days. The other Justices concurred.