tion, who applied to the court to obtain a discharge of the mortgage. But the court held, that though the transaction and agreement did not attach the new notes to the mortgage so as to make it a security for them to be enforced as a mortgage, or give it validity against an attaching creditor, a second mortgagee, or bona fide purchaser, yet it laid the ground for refusing aid as a court of equity, and for leaving the parties to their legal rights, though the court do not define what those were.1 Where the discharge of a mortgage has been obtained by fraud, equity may treat the discharge as a nullity, and revive the mortgage. A mortgagee may discharge the mortgage security upon the estate without affecting the debt itself as such.3* 30. Questions sometimes arise, whether a given transaction in respect to a mortgage operates as an assignment or a discharge. These more frequently arise in cases where the widow of a mortgagor claims dower, though they may arise between other claimants of the premises. The following case, with the language of the court in deciding it, will illustrate the remark: Brown made a mortgage, in which his wife joined. He subsequently became insolvent, and his estate passed to his assignees. The mortgage came by assignment to one G. On the 12th of * January, the assignees, by [*563] a previous arrangement to that effect with the mort * NOTE. — In many of the States there is a provision made for a ready mode of discharging mortgages by a brief certificate to that effect entered upon the record in the register's office. Among these are California, Dig. Stat. 1858, .p. 801; Code, 1872, p. 871; Maine, Rev. Stat. 1867, c. 90, § 26; 1871, c. 90; Missouri, Rev. Stat. 1855, c. 113, § 21; 1872, c. 99; Mississippi, Rev. Code, 1857, c. 36, art. 14; 1871, c. 52; Ohio, Rev. Stat. 1854, c. 34, § 18; 1860, vol. 1, p. 471; Swartz v. Leist, 13 Ohio St. 419; New York, Rev. Stat. 1852, vol. 2, p. 170; Stat. at Large, 1863, vol. 1, p. 713; Iowa, Code, 1851, § 2093; 1873, p. 532; Illinois, Comp. Stat. 1857, vol. 2, p. 976; Rev. Stat, 1874, c. 95, § 8; Arkansas, Dig. 1858, p. 801; Massachusetts, Gen. Stat. c. 89, § 30; Stat. 1868, c. 187; Iowa, Waters v. Waters, 20 Iowa, 366. In Massachusetts, if mortgagee, upon satisfaction of his debt, refuse to enter a proper discharge upon the record, he is liable in damages to the mortgagor. And a similar law prevails in Missouri Verges v. Giboney, 47 Mo. 171. 1 Joslyn v. Wyman, 5 Allen, 62. See also Stone v. Lane, 10 Allen, 74; ante, 2 Barnes v. Camack, 1 Barb. 392. Sherwood v. Dunbar, 6 Cal. 53 gagee, and to pay him out of the proceeds, sold the entire estate to one D., and on the same day paid G. the amount of the mortgage, and took an assignment thereof to themselves, but did not deliver their deed of the estate to D. till February 11th. At a subsequent period, the assignees made an assignment to D. of the mortgage. Brown having died, his wife claimed dower on the ground that the transaction was a payment to the mortgagee of his debt, and understood and intended as such, and that she was thereby let in to claim dower, not in the equity of redemption alone, but in the land itself. The court, Shaw, C. J., say: "Whether a given transaction shall be held in legal effect to operate as a payment and discharge which extinguishes the mortgage, or as an assignment which preserves and keeps it on foot, does not so much depend upon the form of words used, as upon the relation subsisting between the parties advancing the money and the party executing the transfer or release, and their relative duties. If the money is advanced by one whose duty it is, by contract or otherwise, to pay and cancel the mortgage, and relieve the mortgaged premises of the lien, a duty in the performance of which others have an interest, it shall be held to be a release, and not an assignment, although in form it purports to be an assignment. When no such controlling obligation or duty exists, such assignment shall be held to constitute an extinguishment or an assignment according to the intent of the parties, and their respective interests in the subject will have a strong bearing upon the question of such intent." The transaction was held to constitute an assignment.1 The language of the court in another case was, "If the release is to a party whose duty it is to extinguish the mortgage for the benefit of another, it will be held to operate as a discharge." 2 1 Brown v. Lapham, 3 Cush. 554, 555. And see Eaton v. Simonds, 14 Pick. 98; Robinson v. Urquhart, 1 Beasley (N. J.), 515; Swift v. Kraemer, 18 Cal. 526; Wedge v. Moore, 6 Cush. 8; Bolton v. Ballard, 13 Mass. 227; Kilborn v. Rob bins, 8 Allen, 471; Strong v. Converse, 8 Allen, 559, ante, p. *528 2 Wadsworth v. Williams, 100 Mass. 131. SECTION VI. MERGER OF INTEREST. 1-8. In what cases the interests of mortgagor and mortgagee merge. 4. Redemption passes the acquisitions of the mortgagee. 1. IT sometimes happens that the interests of mortgagor and mortgagee come together in one and the same person, and * then a question often arises whether the [*564] two have become merged in one, or remain still distinct interests. It is generally true, that whenever a legal and equitable estate in the same land come, to one person in the same right, without an intervening interest outstanding in a third person, the equitable merges in the legal estate, and the latter alone remains subsisting. But in order to work a merger, the mortgagee must be the holder of the mortgage at the time he acquires the estate of the mortgagor. If he has parted with that, there would be no merger by his coming into the place of the mortgagor. In applying this principle to mortgages, it makes no difference whether the mortgagor or his assigns pay off the mortgage or take an assignment of it, or the mortgagor conveys to the mortgagee by an absolute deed. Such merger extinguishes the mortgage-debt, and the mortgage can no more be set up than if it had been fully paid.3 This proposition, however, is qualified by more recent cases to this extent; viz., if the mortgagee conveys to the mortgagor, it will be presumed to be a satisfaction and release of the mortgage. But if the conveyance be by a mortgagor to the mortgagee, where there is a junior incumbrance upon the estate, the interest of the first mortgagee, as such, would not be affected by such a union of interests in the mortgagee. Whether it shall work a merger depends upon whether such is 1 White v. Hampton, 13 Iowa, 259. 2 Gardner v. Astor, 3 Johns. Ch. 53; Starr v. Ellis, 6 Johns. Ch. 393; James v. Johnson, 6 Id. 417; Barnet v. Denniston, 5 Johns. Ch. 35; Tud. Cas. 772, 773; Wilhelmi v. Leonard, 13 Iowa, 330; James v. Morey, 2 Cow. 300, 313. 3 Gregory v. Savage, 32 Conn. 264; Bassett v. Mason, 18 Conn. 131; James v. Morey, 2 Cow. 246, 286. for the interest of the mortgagee. If there be two owners of an equity of redemption, and the mortgage be conveyed or assigned to one of them, the mortgage is not thereby merged; it remains in force, and may be foreclosed by the assignee against his co-tenant of the equity, or the latter may redeem his interest in the estate by paying one-half of the mortgagedebt before foreclosure.2 So if a mortgagee assign his mortgage, and then buys the equity of redemption, it does not merge the mortgage, though the assignment be not recorded. But if, nevertheless, it is for the interest of the mortgagee that the two estates should not merge, equity will suffer what it assumes the intention of the mortgagee to be, that no merger takes place, and preserves the rights of each distinct.1 The purchaser of an equity of redemption may take an assignment of the mortgage, and may keep the legal and equitable titles distinct, at his election, if he has any interest in so doing, so that they shall not merge by unity of possession. And a release of an equity of redemption operates as an extinguishment of the equity of redemption, and not as a merger of the estate conveyed by the mortgage. This can be best illustrated by a reference to decided cases, with the additional explanation, that, in order to work a merger, the new estate created by the union of the two, out of which it is formed, must be a permanent one, and not defeasible in its nature. Thus where a right of way over one parcel belonged as appurtenant to another, and the same person acquired separate mortgages of these two parcels from separate mortgagors, it was held not to work a merger of the easement until they should have been foreclosed; for had either mortgagor redeemed his parcel, it would come back to him with the existing easement or servitude. In another case, one purchased an equity of redemption in an estate, and then 5 1 Edgerton v. Young, 43 Ill. 464; Staunton v. Thompson, 49 N. H. 272. 2 Baker v. Flood, 103 Mass. 47. Campbell v. Vedder, 1 Abb. N. Y. Decis. 295. James v. Morey, sup. 285, 300, 318; Lockwood v. Sturdevant, 6 Conn. 874; Mallory v. Hitchcock, 29 Conn. 135; Savage v. Hall, 12 Gray, 365. 5 Clary v. Owen, 15 Gray, 525; Loud v. Lane, 8 Met. 517; Lyon v. McIlvain, 24 Iowa, 12; Shin v. Fredericks, 56 Ill. 443. 6 Ritger v. Parker, 8 Cush. 145, 149; Hancock v. Carlton, 6 Gray, 39, 50. mortgaged it. He then purchased in the first mortgage; but it was held not to operate a merger in him, because of the intermediate outstanding mortgage created by him.1 But where an equity of redemption was conveyed to a wife, and the holder of the mortgage assigned his mortgage which came by sundry mesne assignments to the wife, who failed to put her assignment on record, and her immediate assignor then made a second assignment to a third person, who put the same upon record, the court intimated the opinion, that by the assignment to the wife the interests were merged, and that the second assignment by her assignor was of no effect.2 But an assignment by a mortgagee of his mortgage to the wife of the mortgagor does not operate as a discharge of the same. If the one paying the debt have only an estate defeasible under an executory devise, it will not work a merger.+ And where it is for the interest of the holder of one of these titles, upon his acquiring the other, that they should be kept distinct in order that both should be protected, they will not be held to merge, unless the contrary intent appears from the language of the deed; as where, for instance, the purchaser of an equity of redemption pays an outstanding mortgage, made by his grantor, in which his wife had released dower, the mortgage will not be deemed to be merged, as it would let in the widow to her full right of dower. And it may be stated as a general principle, that although, where the mortgagee purchases in the equity, he thereby extinguishes his debt and mortgage, it will not be so regarded if he has been induced by fraud to give up his debt, or it is necessary for the protection of his interest that the estates should be 1 Evans v. Kimball, 1 Allen, 240; Cook v. Brightly, 46 Penn. 439. 4 Fisher, Mortg. 447. 5 See the cases above cited. Forbes v. Moffat, 18 Ves. 384; Hunt v. Hunt, 14 Pick. 374; Gibson v. Crehore, 3 Pick. 475; Eaton v. Simonds, 14 Pick. 98; Hatch v. Kimball, 14 Me. 9; St. Paul v. Dudley, 15 Ves. 167; Brown v. Lapham, 3 Cush. 551; Grover ». Thatcher, 4 Gray, 526; Casey v. Buttolph, 12 Barb. 637; Bell v. Woodward, 34 N. H. 90; Johnson v. Johnson, Walker, Ch. 331; Dutton v. Ives, 5 Mich. 515; Thompson v. Chandler, 7 Me. 377; Holden v. Pike, 24 Me. 437; Fletcher v. Chase, 16 N. H. 42, 43; James v. Morey, 2 Cow. 285, 300; N. E. Jewelry Co. v. Merriam, 2 Allen, 392; Savage v. Hall, 12 Gray, 364, |