This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
41. Ante, Sec. 640(b), notes 50, 51.
42. Bassett v. Mason, 18 Conn. 131; Lilly v. Palmer, 51 111. 331; Spencer v. Hartford, 4 Wend. (N. Y.) 381; See Webb v. Meloy, 32 Wis. 319.
43. Hartford Fire Ins. Co. v. Buckwalter Lumber Co., 116 Miss.
822, 77 So. 798; Salvage v. Hay-dock, 68 N. H. 484, 44 Atl. 696; Betts v. Betts, 159 N. Y. 547, 54 N. E. 1089, 9 N. Y. App. Div. 210, 41 N. Y. Supp. 285; South Carolina Ins. Co. v. Cook, 106 S. C. 461, 91 S. E. 728.
It has occasionally been asserted that the intention which controls in this regard is that which exists at the time the two interests came together in one person, and that an intention afterwards formed by him is immaterial.44 There are, however, statements to the contrary.45 In so far as the intention existing at the time of the acquisition of the two interests was to keep them separate, it is not perceived why, if the person owning and controlling them subsequently changes his intention and desire in this regard, and considers the debt as merged, such change of intention should not be given effect. If, however, an intention to merge exists at the time of the acquisition of the two interests, and merger results, a subsequent change of intention in this regard could not well undo the merger, and recreate the debt, with its incidental lien, as a separate entity.
An intention to merge induced by false representations that there is no other incumbrance on the property has been held not to be effective to produce a merger.46 Such a case is analogous to a release or discharge of the mortgage induced by fraud, which has been decided not to be effective as against the person who executed it.47 And an intention to extinguish the debt has occasionally been regarded as not conclusive in this regard owing to ignorance of an intervening incumbrance.48
Upon an assignment of the debt, with the mortgage lien, to the owner of a portion of the mortgaged land, merger will, as in the case of an assignment to the owner of all the land, ordinarily not take place except in accord with bis intention or his apparent interest.49 The fact that he owns but a part of the land appears to furnish no reason for regarding the debt as merged in part only, if his intention or interest is that the debt be entirely merged.50
44. McClain v. Wise, 22 111. App. 272; James v. Johnson, 5 Johns. Ch. (N. Y.) 417; Given v. Marr, 27 Me. 212
45. See Goodwin v. Keney, 47 Conn. 486; James v. Morey, 2 Cow. (N. Y.) 248; Ft. Scott Building & Loan Ass'n v. Palatine Ins. Co., 74 Kan. 272, 86 Pac. 142; Nagle v. Conard, 79 N. J. Eq. 124, 81 Atl. 841, 80 N. J. Eq. 252, 86 Atl. 1103.
46. Howard v. Clark, 71 Vt. 424, 76 Am. St. Rep. 782, 45 Atl. 1042; Young v. Hill, 31 N. J. Eq 429.
47. Post, Sec. 642(e).
48. Post, this subsection, notes 58-60.
- Evidence as to intention. The intention as to whether merger shall occur may be stated or indicated in the conveyance of the land or the assignment of the mortgage debt which brings the two interests together, and such an expression of intention will ordinarily be given controlling effect.51 The fact that a release or satisfaction of the mortgage is or is not executed has occasionally been regarded as showing an intention to merge,52 or not to merge.53 The fact that the mortgage debt with its lien is subsequently assigned by the person who has acquired the two interests has been held to show an intention against merger,54 as has his subsequent transfer of the land in terms "subject to" the mortgage,55 while the fact that he subsequently
49. Duncan v. Drury, 9 Pa. 332, 49 Am. Dec. 365; Collamer v. Langdon, 29 Vt. 32.
50. But see Casey v. Buttolph, 12 Barb. (N. Y.) 367.
51. Anglo-Californian Bank v. Field, 146 Cal. 644, 80 Pac. 1080; Lagrange v. Greer-Wilkinson Lumber Co., 59 Ind. App. 488, 108 N. E. 373; Abbott v. Curran, 98 N. Y. 665; Agnew v. Charlotte, C. & A R. Co., 24 S. C. 18, 58 Am. Rep. 237; Bleckley v. Branyan, 26 S. C 424, 2 S. E. 319; Case v. Fant, 53 Fed. 41, 3 C. C. A. 420
52. Woodside v. Lippold. 113 Ga. 877, 84 Am. St. Rep. 267, 39 S. E. 400. Compare post, this subsection, notes 61, 93.
53. Davis v. Randall. 117 Cal.
12, 48 Pac. 906; Linscott v. La-mart, 46 Iowa, 312; Hoppock v. Ramsey, 28 N. J. Eq. 413; Salvage v. Haydock, 68 N. H. 484, 44 Atl. 696; Dubbels v. Thompson. 49 Mont. 550, 143 Pac. 986.
54. Goodwin v. Keney, 47 Conn. 486; Security Title Co. v. Schlen-der, 190 111. 609, 60 N. E. 854; Longfellow v. Barnard, 58 Neb. 612, 76 Am. St. Rep. 117, 79 N. W. 255; Dubbels v. Thompson, 49 Mont. 550, 143 Pac. 986; James v. Morey, 2 Cow. (N. Y.) 248; Chase v. Van Meter, 140 Ind. 321, 39 N. E. 455.
55. Saint v. Cornwall, 207 Pa. 270, 56 Atl. 440; Cliff v. White, 12 N. Y. 525. That the person who acquires the two interests thero
3 R. P.-22 transfers the land with covenants of title sufficient to protect against the mortgage shows an intention in favor of merger.56
If frequently happens that there is no evidence as to the intention in this regard, and in such a case equity will usually presume that the owner of the two interests intended that they should merge, or the contrary, according as merger vel non would be most for his benefit.57 So a presumption against the existence of an intention to merge on the part of the owner of the two interests has been recognized when there was a junior incumbrance on the property, since the effect of a merger in such case would be to accord priority to the junior incumbrance over the claim of such owner.58 after undertakes to foreclose the mortgage has been held to show an Intention not to merge. Salvage v. Haydock, 68 N. H. 484, 44 Atl. 696.
56. Thomas v. Simmons, 101 Ind. 538; Pearson v. Bailey, 180 Mass. 229, 62 N. E. 265; Senter v. Senter, 87 Ohio St. 377, 101 N. E. 272. See post, this subsection, note 92.
57. Factors & Traders' Ins. Co. v. Murphy, 111 U. S. 738, 28 L. Ed. 582; Davis v. Randall, 117 Cal. 12, 48 Pac. 906; Ensign v. Batterson, 68 Conn. 298, 36 Atl. 51; Knowles v. Lawton, 18 Ga. 476, 63 Am. Dec. 290; Aetna Life Ins. Co. v. Corn, 89 111. 170; Clark v. Glos, 180 111. 556, 72 Am. St. Rep. 223, 54 N. E. 631; Birke v. Abbott, 103 Ind. 1, 53 Am. Rep. 474, 1 N. E. 485; Patterson v. Mills, 69 Iowa, 755, 28 N. E. 53; Bean v. Boothby, 57 Me. 295; Hunt v. Hunt, 14 Pick. (Mass.) 374, 25 Am. Dec. 400; Stantons v. Thompson, 49 N. H. 272, 279;