ALBANY, the First Judge of Washington Common Pleas granted an Dec. 1823. order staying all further proceedings upon the judgment, on Chamberlain the part of the respondent, until the further order of that

V.

Fitch.

Court, upon paying the amount of the judgment into the hands of the Sheriff of that county, on the execution issued in the cause. Dec. 27th, 1822, the appellants appealed to this Court, from the order made upon the motion for a rehearing. Upon this state of the case, the counsel for the respondent, intending to move to quash the appeal, it was agreed between him and the counsel for the appellants, that the papers for that motion should be served when convenient for the respondent's counsel, and that they would have the motion disposed of before answering the petition of appeal. Notice of that motion was accordingly given, for the 3d Tuesday of Feb. 1828, but the motion was afterwards postponed, by agreement of counsel, for one week, and was then again postponed, by agreement, on request of the appellants' counsel, till it should be mutually convenient for both counsel to go to Albany, in order to attend to the motion. April 4th, 1823, the last day of the session of this Court, without giving any notice to the respondent, his solicitor or counsel, of his intention so to proceed, the connsel for the appellants moved for and obtained an order of this Court, reversing the order of the Chancellor dissolving the injunction, for want of an answer to the petition of appeal. On the 13th Jan. preceding, the usual order had been ob(a) Vid. 11 tained, to answer the petition of appeal in eight days, &c.(a) Rule of Sept. which was, with a copy of the petition of appeal, served on

18th 1818.

the solicitor for the respondent, on the 25th of Jan. last. It was upon an affidavit of these facts, that the order for a default was taken. Since these proceedings, the money received upon the execution had been paid to the attorneys of the respondent, on their giving security to the Sheriff to refund the same in the event of his being made liable for it. None of the above stipulations or arrangements were reduced to writing between the counsel. And

J. Crary, contra, took this last ground, among others, against the motion.

Dec. 1823.

SUTHERLAND, J. Is there any rule of this Court requi- ALBANY, ring a stipulation between attorneys, counsel, &c. to be reduced to writing?

Crary. I know of none.

Chamberlin

V.

Fitch.

Verbal stipulation between

of court of er

SUTHERLAND, J. My impression is, that the verbal sti- attorneys, &c. pulations between the counsel were binding.

Crary. If the suit is reinstated, it should be completely so. The money should be placed under the control of the Court.

WOODWORTH, J. (this morning, Sept. 13th) adverted to the facts as above stated, and concluded by moving, and the Court thereupon unanimously adopted the following RULE: Samuel Fitch, respondent,

ads.

Andrew Chamberlin, Jonathan Morey, Ebenezer Ingersoll, jun. and David Wheedan, appellants.

On reading affi
davits and papers

accompanying, and
hearing the coun.

sel of the parties, ORDERED, that the default obtained against the respondent, for not answering the petition of appeal filed in this Court, be set aside, with the costs of this application; and, further, that the Register of the Court of Chancery return to this Court the papers, rules, orders and decree relating to the appeal, which were remitted by this Court, on obtaining the said default; and that the respondent thereupon answer the said appeal-provided, nevertheless, that the preceding order shall not take effect until S. Stevens & S. B. Gibson, Esquires, attorneys for the respondent in the suit at law mentioned in the said affidavits and papers, shall have executed and delivered to the solicitor for the appellants, a stipulation that if the order of the Court of Chancery shall be reversed, on the said appeal, then, and in that case, they will deposit in the Court of Chancery, to the credit of the appellants in this cause, the amount of money received by them from the Sheriff of the county of Washington, on the

rors binding.

ALBANY,

Dec. 1823.

James

execution issued on the judgment at law, and mentioned in the said affidavits and papers, subject to the disposition of his Honor the Chancellor.

V.

Morey.

WILLIAM JAMES, appellant,

against

DAVENPORT MOREY, impleaded with CALEB JOHNSON, respondent.

At law, where a greater estate and a less meet, and coincide in the same person, in one and the same right, without any intermediate estate, the less estate is immediately annihilated, or, in the law phrase, is said to be merged.

This rule, at law, is inflexible.

And where the equitable and legal estates unite in the same person, the equitable is merged in the legal estate ;

But, in equity, the rule is not inflexible;

It depends on the expressed or implied intention of the person in whom the estates unite, whether the equitable estate shall merge, or still be kept in existence :

Or upon the circumstance that he is not capable of making an election, be-
ing an infant, a lunatic, &c.

In the latter case, the equitable estate shall still be kept on foot;
And so where it is for the interest of the person in whom these estates unite,
the law will imply an intention to keep the equitable estate on foot.
Thus, where a mortgagee purchases or takes a release of the equity of re-
demption, the whole estate is vested in him, and the mortgage is extin-
guished;

And with it the mortgage debt;

Unless intention, incapacity to elect, or interest, &c., in the mortgagee, intervene to prevent the merger.

And where a mortgagee purchases, or takes a release of the equity of redemption in a part of the mortgaged premises, the mortgage is extinguished pro tanto :

And may be apportioned between the part, as to which it is extinguished, and the part in relation to which it exists.

Various acts, declarations and circumstances considered, which evince an intention to keep the legal and equitable estates distinct, or to unite them.

The recording an assignment of a mortgage is not necessary within any of the general registry acts:

It is, therefore, no notice to a mortgagor, so as to render payments by him to the mortgagee, in his own wrong;

Nor is it notice to a subsequent assignee of the mortgagee;
Nor to a subsequent purchaser or mortgagee of the premises.
The assignee of a mortgage takes it subject to all the equities existing be-
tween the mortgagor and mortgagee at the time of the assignment; but
not subject to the latent equities of third persons, unless the assignee have
notice of such equities.

Payments made after an assignment, but before notice of the assignment is
given to the mortgagor, must be allowed to him;

But it is not necessary to the protection of the assignee, that he should give notice of his assignment to a subsequent assignee, or purchaser from the mortgagee.

Where on a judgment entered by confession on a bond and warrant of at-
torney, a specification of the consideration was not filed, pursuant to the
statute of 1818, (now repealed,) whether the judgment is fraudulent and
void as against a subsequent creditor by mortgage? Quere.

And, per Savage, C. J., a mortgagee is not a purchaser within that act.
Woodworth J., contra.

The meaning and extent of the term purchase, considered, at law and in
equity. Per Woodworth, J.

A mortgagee cannot hold the mortgage as security for any claim which he has against the mortgagor by bond or simple contract, &c., beyond the sum specifically secured by the mortgage.

Especially where an objection is interposed by a bona fide judgment creditor.

Yet a mortgage, to secure future advances, is valid;

And it seems, that, as between mortgagor and mortgagee, a mortgage given
to secure one debt, may become security for a debt subsequently con-
tracted by the mortgagor to the mortgagee, where the former consents.
A deed, absolute on the face of it, but intended by the parties as a security
merely for a debt, though registered as a deed, is valid and effectual be-
tween the parties, as a mortgage; but it is liable to be defeated by a sub-
sequent mortgage duly registered.

A mortgage, by way of an absolute deed, must be registered as a mortgage,
in order to be effectual against subsequent bona fide purchasers or mort-
gagees.

The registering it as an absolute deed, is not sufficient for this purpose.
Where the equity of redemption is merged by being united with the legal es-

tate in the hands of a mortgagee, &c., an assignment by the words grant,
&c., may enure as a conveyance in fee, if not restained by the habendum.
Per Woodworth, J.

English doctrine of tacking, and whether it extends to mortgagors and creditors, considered, per Woodworth, J.

Meaning of the word estate, in lands, &c. Per Sutherland, J.

Can be no merger unless estates meet. Per id.

ALBANY,
Dec. 1823.

James

V.

Morey

ALBANY,
Dec. 1823.

James

V.

Morey.

The registering a deed of conveyance is not notice to a subsequent purchaser, except in cases where its registry is made necessary by statute. e. g. Registering a sheriff's deed is not notice. Per id.

Whether one having a recorded mortgage, standing silently by, and seeing another bid of the mortgaged premises on a judgment younger than the mortgage, forfeits his claim under the mortgage in equity? Quere. Per Sutherland, J. But, per Savage, C. J.: he does not; for the registry is notice to all the world.

One assigns as mortgagee: Whatever interest he afterwards acquires in
the mortgaged premises, enures to confirm the assignment. Per Suther-
land, J.

When an equitable estate is once merged by a union with the legal, it is
gone forever, and cannot be revived. Per Cramer, Senator.
An order on reversal, including,

Form of order of reference to a master, to ascertain and report balance due
on mortgage, &c.-Order of sale of mortgaged premises.-How to dispose
of proceeds, to deliver title deeds, &c.—to deliver possession to the pur-
chaser.

Of two unregistered mortgages, the oldest takes preference. Per Savage,
Ch. Justice.

The second cannot take preference, unless registered; and not even then,
if the second mortgagee have notice of the first mortgage.

APPEAL from the Court of Chancery. The bill in the Court below was filed by James against Johnson and Morey. Issue was joined, and proofs taken; upon which the cause was heard by the Chancellor, who decreed in favor of the defendants. From this decree James appealed.

The facts material to the various points raised by the counsel, and decided, both by the Court below, and in this Court, are stated in the opinions of the Judges, and of Cramer, Senator.

The report of the same case as adjudged in the Court below is in 6 John. Ch. Rep. 417. The title there in James v. Johnson and Morey.

The late Chancellor assigned his reasons for the decree in the Court below, as in 6 John. Ch. Rep. 420 to 434.

J. V. Henry, for the appellant, opened the case very fully, and concluded by stating and commenting upon the following points:

1. The appellant, is the assignee of the mortgage of the 24th of June, 1817, from Caleb Johnson to James O. Wattles,