In the absence of an expressed intention against merger, the presumption of merger arising from the union of a charge to be rebutted by evidence of intention derived from the circumstances, without express declaration, although there is no intervening trustee. 21 Halsbury, Laws of England, p. 321. As to such cases, see Sec. 203, infra.

(p) The plaintiff was a volunteer as regards the new priority claimed by him; although he had given value for his mortgage.

(q) Whiteley v. Delaney, [1914] A.C. 132, reversing Manks v. Whiteley, [1912] 1 Ch. 735. In the view of the case taken by the House of Lords it was unnecessary to express an opinion as to the correctness of the decision in Toulmin v. Steere, 1817, 3 Mer. 210

and of an estate of inheritance in the property charged may be rebutted by the circumstances attending the transaction, as for instance where the debt is not released but the mortgage and the mortgagee's rights are transferred to the owner of the estate (r).

The presumption in favour of merger may be rebutted by an act on the part of the person in whom the charge and the estate have become united indicating his intention to keep the charge alive (s), and correspondence at the time or oral evidence of conduct and dealings relating to the property is admissible to explain the intention (t).

A transfer of the mortgage to a trustee is not conclusive evidence against the presumption, and in particular circumstances merger may take place notwithstanding such a transfer (u). On the other hand the presumption of merger may be rebutted by evidence of intention derived from the circumstances notwithstanding that there is no transfer of either the charge or the estate to a trustee (v).