kept distinct. In such cases the doctrine of merger does not apply. Thus, where the mortgagee purchased in the equity, but it afterwards appeared that there was a judgment lien upon it in favor of a creditor of the mortgagor, it was held not to merge the mortgage so as to let in this lien upon the estate of the mortgagee.1 But where a third mortgagee paid the first, and took a deed of release in express terms discharging the same, it was held, that he could not set up the first mortgage against the claim of the second mortgagee.2 2. The question in such cases becomes one of intention, and the interests will not merge, unless the law finds such to be the intention of the person in whom they meet, expressly declared or clearly to be inferred from such merger being to his advantage. Thus where a mortgagee purchased of the mortgagor his equity of redemption, and gave up his note secured by the mortgage, it was held not to operate as a merger as against an intervening attachment and levy for the debt of the mortgagor, it not being intended as a payment of the mortgage-debt, and the mortgage not having been actually discharged.* [*565] * 3. In order to a merger, the two interests must unite in one and the same person, in the same right at the same time.5 Wherefore a mortgagee, having occasion to purchase the equity of redemption, may always keep alive the mortgage by taking a conveyance of the equity to a trustee. So where the mortgagor applied to a third person to loan him money, upon an agreement that he should have the mortgage on his estate then outstanding as his security, 1 Vannice v. Bergen, 16 Iowa, 562; Wickersham v. Reeves, 1 Iowa, 413; Lyon v. McIlvaine, 24 Iowa, 12. 2 Wade v. Howard, 6 Pick. 492, s. c. 11 Pick. 289; Frazee v. Inslee, 1 Green, Ch. 239. 3 Knowles v. Lawton, 18 Ga. 476; Waugh v. Riley, 8 Met. 290; Loud v. Lane, Id. 517; Van Nest v. Latson, 19 Barb. 604; Hutchins v. Carleton, 19 N. H. 487; Den v. Brown, 2 Dutch. N. J. 196; Loomer v. Wheelwright, 3 Sandf. Ch. 157. See Walker v. Barker, 26 Vt. 710. 4 N. E. Jewelry Co. v. Merriam, 2 Allen, 390. 5 Pratt v. Bank of Bennington, 10 Vt. 293; Sherman v. Abbot, 18 Pick. 448. Bailey v. Richardson, 15 E. L. & Eq. 218, s. c. 9 Hare, 734; Fisher, Mortg. and the money was furnished as a loan, and was delivered to the mortgagor, who paid it to the mortgagee and had the mortgage assigned in blank, it was held not to work a merger in the mortgagor's hands as against the one making the loan.1 And it may be laid down as universally true, that, where a mortgage has been substantially satisfied, it will never be kept alive by equity to aid in perpetrating a fraud through the forms of law, but only for the advancement of justice.2 4. If a mortgagee, as such, while in possession of an estate, acquires any rights or advantages in respect to the same, and the mortgagor redeems from him, the latter thereby acquires to himself the benefit of these advantages. As, for instance, where the mortgagee of a term had acquired for himself a renewal of the lease in his own name, it was held, that the mortgagor, by redeeming the mortgage, acquired the benefit of such renewal. In this respect, mortgagees stand in the relation of trustees to the estate as to deriving personal advantage out of it. SECTION VII. OF THE PERSONAL RELIEVING THE REAL ESTATE. 1. When heirs may call on executors to redeem. 2. How far devisees or purchasers may. 3. The personal not called in aid of the real estate in insolvency. 4. When the heir or his vendee may not call for aid. 5. Purchasers of a mere equity may not claim relief. 1. QUESTIONS often arise between parties interested in the estates of mortgagors as to when and how far their personal estate shall contribute to relieve the real by satisfying outstanding mortgages. In general it may be assumed, where there is no specific legislation upon the subject, that an heir 1 Champney v. Coope, 32 N. Y. 543. 2 McGiven v. Wheelock, 7 Barb. 22; Hinchman v. Emans, Saxton, 100; Hutchins v. Carleton, 19 N. H. 487. 3 Holridge v. Gillespie, 2 Johns. Ch. 30; Slee v. Manhattan Co., 1 Paige Ch. 48. * at law of a mortgagor may call upon the executor or [*566] administrator to discharge the mortgage upon the real out of the personal estate, on the ground that the personal estate had the benefit of the money for the security of which the mortgage was given, and qui sentit commodum sentire debet et onus, or "that that should have the satisfaction that sustained the loss;" and this was extended to a widow in favor of her dower, in an estate mortgaged to secure the purchase-money; though the holder of the mortgage is affected by no such consideration, and is not obliged to seek his satisfaction out of the personal estate.3 2. So, as a general proposition, a devisee of the real estate stands, in this respect, in the situation of an heir. But the principle is adopted in favor of these alone, and only against executors, administrators, and residuary legatees, or next of kin of such mortgagor. It does not avail against legatees, general or specific, nor against creditors.5 Nor have devisees of mortgaged property a right to call on executors to redeem as against devisees of other property.6 3. If the estate of a deceased mortgagor be insolvent, the courts will not apply the personal to relieve the real estate.7 Nor can an executor or administrator be compelled to apply personal assets found in one State to relieve real estate situate in another jurisdiction. But where an administrator, not 1 2 Crabb, Real Prop. 914; Cope v. Cope, 2 Salk. 449, and cases cited in the note. Broom's Maxims, 560. 2 Henagan v. Harllee, 10 Rich. Eq. 285. 8 Trustees v. Dickson, 1 Freem. (Miss.) Ch. 474; Patton v. Page, 4 Hen. & M. 449. 4 Goodburn v. Stevens, 1 Md. Ch. Dec. 420; Cumberland v. Codrington, 3 Johns. Ch. 229; King v. King, 3 P. Wms. 358; Lanoy v. Athol, 2 Atk. 444; 2 Crabb, Real Prop. 914. Though the real estate be devised subject to payment of debts. Lupton v. Lupton, 2 Johns. Ch. 614; Livingston v. Newkirk, 3 Johns. Ch. 312; Ancaster v. Mayer, 1 Bro. Ch. 454; Lockhart v. Hardy, 9 Beav. 879. Unless the real estate be directed to be sold to pay debts, and the personal be expressly bequeathed. 1 Story, Eq. Jur. 572. 5 Coote, Mortg. 467, 468; Cope v. Cope, 2 Salk. 449; Torr's Estate, 2 Rawle, 250; Mansell's Estate, 1 Parsons, Eq. Cas. 367; Adams, Eq. Jur. 3d Am. ed. 274, n. 6 Gibson v. McCormick, 10 Gill & J. 65; Mason's Estate, 1 Parsons, Eq. Cas. 129, s. c. 4 Penn. St. 497. 7 Gibson v. Crehore, 3 Pick. 475. 8 Haven v. Foster, 9 Pick. 112. knowing the land of his intestate to be under a mortgage, sold it by leave of court as unincumbered, he was allowed to apply enough of the proceeds to satisfy the outstanding mortgage upon the same, it being the only way in which he was able to make a good title to the estate.1 *4. If an heir sell an equity of redemption that [*567] descends to him, without exercising his common-law right to have the mortgage paid out of the personal estate, he cannot afterwards call upon that for relief or aid. And the rule in New York is, in all cases, that, where a mortgaged h estate descends to an heir or passes to a devisee, he takes it charged with the mortgage, and is to satisfy it, unless there be, in the case of a devise, an express direction to the contrary. Nor will a general direction to pay the testator's just debts be sufficient, under their statute, to throw the mortgagedebt upon the personalty.1 5. It may, moreover, be stated as a general proposition, that wherever the holder of an equity of redemption has acquired it by purchase, in the popular sense of that term, he takes it for what it is, - —a mere right to become possessed of the estate by paying the incumbrance upon it, and that alone is what he has paid for. He has no right in equity to call upon any other fund to relieve his own estate. Thus, where a testator purchased an estate subject to a mortgage, and made a personal agreement with the mortgagor to pay the debt, and then devised the estate, it was held that the debt was a charge upon the real estate only, and the devisee could not call on the personal estate to relieve it.5 And though the rule of the common law is as above stated, that, where the mortgagor himself contracts the debt, the mortgage is collateral to the debt, and the personal is bound to relieve it; yet, if the original debt was that of another, the testator, by devising the 1 Church v. Savage, 7 Cush. 440. 2 Haven v. Foster, 9 Pick. 112. 8 Mosely v. Marshall, 27 Barb. 42; Lalor, Real Est. 308. See a similar statute, 17 & 18 Vict. c. 113; Fisher, Mortg. 398; Wright v. Holbrook, 32 N. Y. 587, though otherwise with a vendor's lien; 2 Story, Eq., Redfield's ed., § 1248 c. 4 Rapalye v. Rapalye, 27 Barb. 610. Cumberland v. Codrington, 3 Johns. Ch. 229; Tweddell v. Tweddell, 2 Bro Ch. 101. estate, does not charge the payment of the debt upon his personal estate, unless he does so expressly by his will.1 * [*568] * SECTION VIII. OF CONTRIBUTION TO REDEEM. 1, 2. General doctrine of contribution between parties. 3-8. Contribution, how affected by changes in the estate. 6 a. 6 b. Of liability of purchaser of an equity for the mortgage-debt. 9. Contribution by dowress to redeem mortgage. 1. It is a well-settled rule in equity, that, where land is charged with a burden, each portion of the estate should bear its equal share of such a charge; and if the owner of one part, in order to protect his share, is obliged to pay a common charge upon his own and another's share of the estate, he may call upon the other owner to contribute pro rata towards the amount thus paid.2 But this doctrine obviously can apply only when the equities of the parties in interest are equal, and may be controlled by agreement, provided all these parties assent. Thus, suppose a creditor holds a mortgage upon *NOTE. - In England, by statute 17 & 18 Vict. c. 118, heirs or devisees who now take mortgaged estates by descent or devise cannot call on the personal estate or other real estate to satisfy the mortgage-debt. Each part of the land charged by mortgage bears its due proportion of the charge, unless the will by which the devisee takes directs otherwise. Wms. Real Prop. 362. 1 2 Crabb, Real Prop. 914, 915, n; Cumberland v. Codrington, 3 Johns. Ch. 229, 257. 2 Stevens v. Cooper, 1 Johns. Ch. 425; Story, Eq. Jur. § 477; Cheesebrough v. Millard, 1 Johns. Ch. 409; Lawrence v. Cornell, 4 Johns. Ch. 542; Gibson v. Crehore, 5 Pick. 146; Chase v. Woodbury, 6 Cush. 143; Salem v. Edgerly, 33 N. H. 46. Thus, where two tenants in common made a joint mortgage of their common estate, and then made partition, and the share set off to one was sold at a sheriff's sale, the purchaser, having been obliged to pay the whole mortgage-debt, had contribution against the mortgagor, who owned the other half of the estate. Stroud v. Casey, 27 Penn. St. 471; Briscoe v. Power, 47 Ill. 449 |