Whenever payment would discharge a mortgage, tender of payment 385 will have the same effect386 To have this effect, however, tender must be absolute and unconditional,387 and it must be for the whole amount of the mortgage debt.388 Tender of the whole amount is required, though the mortgagee has received rents and profits for which there has been no accounting.389 Tender will be effectual only when made by one entitled to make payment, such as the mortgagor,390 a grantee who has assumed the mortgage,391 or a junior mortgagee.392 Payment or tender, to operate as a discharge, must be to one authorized to receive payment, and having a right to enter satisfaction.393 If the mortgage has been assign383 Marvin v. Vedder, 5 Cow. (N. Y.) 671; Bogert v. Bliss, 13 Misc. Rep. 72, 84 N. Y. Supp. 147; Carlton v. Jackson, 121 Mass. 592; Blake v. Brougkton, 107 N. C. 220, 12 S. E. 127.
384 Willcox v. Foster, 132 Mass. 320; Grimes v. Kimball, 3 Allen (Mass.) 518; Weir v. Mosher, 19 Wis. 311; West's Appeal, 88 Pa. St 341; Henschel v. Mamero, 120 111. 660, 12 N. E. 203; Ferguson v. Glassford, 68 Mich. 36, 35 N. W. 820; Kern v. A. P. Hotaling (Or.) 40 Pac. 168. Cf. Cambreleng v. Graham, 84 Hun, 550, 32 N. Y. Supp. 843.
385 As to what constitutes tender, see Clark, Cont. p. 639.
386 Maynard v. Hunt, 5 Pick. (Mass.) 240; Willard v. Harvey, 5 N. H. 252; Schearff v. Dodge, 33 Ark. 340. But that tender only stops Interest, see Parker v. Beasley, 116 N. O. 1, 21 S. E. 955.
387 potts v. Plaisted, 30 Mich. 149; Engle v. Hall, 45 Mich. 57, 7 N. W. 239; Roosevelt v. Bank, 45 Barb. (N. Y.) 579.
388 Graham v. Linden, 50 N. Y. 547; Sager v. Tupper, 35 Mich. 134; Cupples v. Galligan, 6 Mo. App. 62.
389 Bailey v. Metcalf, 6 N. H. 156.
390 Blim v. Wilson, 5 Phila. (Pa.) 78.
391 Harris v. Jex, 66 Barb. (N. Y.) 232.
392 Frost v. Bank, 70 N. Y. 553; Sayer v. Tupper, 35 Mich. 134.
393 Grussy v. Schneider, 50 How. Prac. (N. Y.) 134; Dorkray v. Noble, 8 Me. 278; U. S. Bank v. Burson, 90 Iowa, 191, 57 N. W. 705; Lawson v. Nicholson (N. J. Err. & App.) 31 Atl 386; Mulford v. Brown (N. J. Ch.) 28 Atl. 513.
Payment or tender is to be made to the assignee, if the mortgagor has notice of the assignment.394
Exceptions-(a) When there is an intervening right in a third person.
(b) When there is an intention of the parties to the contrary, unless preventing a merger would injure some third person.
The general doctrine of merger has already been explained, and examples of it noticed in connection with several different estates. Merger generally takes place whenever the mortgage and the equity of redemption come into the same hands.395but it does not occur when the owner has an interest in keeping the mortgage alive,396 as where the owner of the equity of redemption is not the original mortgagor, and has not assumed the mortgage debt.397 Nor is there any merger when there is an intervening right between the mortgage and the equity of redemption.398 For example, when a first mortgagee purchases the equity of redemption, there will be no merger if there are subsequent mortgages.399 In order that merger may take place, the mortgage and the equity of redemption must be held by the same person, and in the same right.400 In determining whether a merger takes place, the intention of the parties is the chief test; 401 and, as to such intention, their relation to each other and to the mortgage debt is material, when they have not shown their intention by express words.402 However, a merger will never be prevented by the intention of the parties, where it will work wrong or injury to others.403 When one who has warranted against incumbrances pays a mortgage, the mortgage Is discharged.404 And so when payment is by the mortgagor, except under special circumstances, such as when the mortgagor has conveyed the equity of redemption to one who has assumed the mortgage debt.405 When the mortgagee acquires the right of redemption, there is no merger, if there are intervening incumbrances or liens,406 nor when the mortgagee has assigned the mortgage before he ac399 Gibbs v. Johnson (Mich.) 62 N. W. 145; Dutton v. Ives, 5 Mich. 515; Hooper v. Henry, 31 Minn. 264, 17 N. W. 476; Bell v. Woodward, 34 N. H. 90; Swatts v. Bo wen, 141 Ind. 322, 40 N. E. 1057.
394 Kennedy v. Moore (Iowa) 58 N. W. 1066; Dorkray v. Noble, 8 Me. 278. And see Hetzell v. Barber, 6 Hun (N. Y.) 534.
395 6 Gibson v. Crehore, 3 Pick. (Mass.) 475; Ann Arbor Sav. Bank v. Webb, 56 Mich. 377, 23 N. W. 51; Judd v. Seekins, 62 N. Y. 266; Mcgale v. Mcgale (R. I.) 29 Atl 967. But see Burt v. Gamble, 98 Mich. 402, 57 N. W. 261; Cook v. Foster, 96 Mich. 610, 55 N. W. 1019.
396 Edgerton v. Young, 43 111. 464; Richardson v. Hockenhall, 85 111. 124; Tuttle v. Brown, 14 Pick. (Mass.) 514; Snyder v. Snyder, 6 Mich. 470; Spencer v. Ayrault, 10 N. Y. 202; Duncan v. Drury, 9 Pa. St 332; Davis v. Pierce, 10 Minn. 376 (Gil. 302); Mccrory v. Little, 136 lna. 86, 35 N. E. 836; White v. Hampton, 13 Iowa, 259; Lyon v. Mcllvalne, 24 Iowa, 9.
397 Grover v. Thatcher, 4 Gray (Mass.) 526; Evans v. Kimball, 1 Allen (Mass.) 240. But see Byington v. Fountain, 61 Iowa, 512, 14 N. W. 220, and 16 N. W. 534.
398 Grover v. Thatcher, 4 Gray (Mass.) 526; New England Jewelry Co. v. Merriam, 2 Allen (Mass.) 890; Coburn v. Stephens, 137 Ind. 683, 36 N. E. 132; Jewett v. Tomlinson, 137 Ind. 326, 36 N. E. 1106; Shaffer v. Mccloskey, 101 Cal. 576, 36 Pac. 196.
400 Mann v. Mann, 49 111. App. 472; Sprague v. Beamer, 45 I1l App. 17; Souther v. Pearson (N. J. Ch.) 28 Atl. 450. At common law an assignment of the mortgage to the wife of the mortgagor discharged it by merger. 1 Jones, Mortg. (5th Ed.) § 850. But such is not now the rule. Model Lodging House Ass'n v. Boston, 114 Mass. 133; Newton v. Manwarring, 56 Hun, 645, 10 N. Y. Supp. 347; Mccrory v. Little, 136 Ind. 86, 35 N. E; 836; Bean v. Boothby, 57 Me. 295. And see Bemis v. Call, 10 Allen (Mass.) 512.