In Toulmin v. Steere (g), Grant, M.R., enunciated the rule that the purchaser of "an equity of redemption cannot set up a prior mortgage of his own, nor, consequently, a mortgage which he has got in, against subsequent incumbrances of which he had notice," the notice in that case being constructive. But to a certain extent this is clearly wrong, as the purchaser can by actual intention keep alive a charge which he has got in, or which he has paid off, against charges of which he has notice (h). This leaves Toulmin v. Steere as an authority merely that, in the absence of actual intention, whether expressed or shown by the circumstances, the presumption against merger will not apply in his favour, and beyond this it will not be extended (i). But even to this extent it is opposed to principle. There is no reason for giving the second mortgagee a benefit at the expense of the purchaser of the equity of redemption who is under no liability to pay him (j); and the decision has been frequently questioned (k).

(f)Burrell v. Earl of Egremont, 1843, 7 Beav. 205, 18 R.C. 540; cf. In re Harvey, Harvey v. Hobday, [1896] 1 Ch. 137; Lord Gifford v. Lord Fitzharding, [1899] 2 Ch. 32.

(g) 1817, 3 Mer. 210, at p. 224. The paragraph in the text relating to this case follows substantially 21 Halsbury, Laws of England, p. 325, note (o), except that since that note was written the judgments in the House of Lords in Whiteley v. Delaney, [1914] A. C. 132, have cast further doubt upon the correctness of the rule enunciated in Toulmin v. Steere. See also the adverse criticism of Toulmin v. Steere in the dissenting judgment of Fletcher Moulton, L.J. in the Court of Appeal in the same case (sub nom. Manks v. Whiteley, [1912] 1 Ch. 735, at pp. 759 ff ); cf. article by A. E. Randall in 28 L.Q.R. 348 (Oct., 1912), in which it is said that the Court of Appeal had, "by a majority, rescued Toulmin v. Steere from a position of suspended animation, and reinetated it to its position of a living danger to conveyancers." As to the actual decision in Whiteley v. Delaney, see Sec. 202.

(h) Adams v. Angell, 1877,. 5 Ch.D. 634.

(i) Stevens v. Mid-Hants Ry. Co., 1873, L.R. 8 Ch. 1064; Adams v. Angell, supra.

(j) Stevens v. Mid-Hants Ry. Co., supra.

(k) See e.g., Watts v. Symes, 1851, 1 DeG. M. & G. 240, at p. 244; Thome v. Cann, [1895] A.C. 11, at p. 16, 18 R.C. 552, at p. 557; Liquidation Estates Purchase Co. v. Willoughby, [1896] 1 Ch. 726, at p. 734, S.C. [1898] A.C. 321. In the Privy Council the doctrine of Toulmin v. Steere has been held not to be applicable in a court administering rules of justice, equity and good conscience, apart from technical conveyancing considerations. Gokuldoss Gopaldoss v. Ram. bux Seochand, 1884, L.R. 11 Ind. App. 126.