Den d. Van Wagenen v. Brown, 26 N. J. L. 196; James v. Morey, 2 Cow. (N. Y.) 246, 14 Am. Dec. 475; Watson v. Dundee Mortgage & Trust Inv. Co., 12 Ore. 474, 8 Pac. 548; Duncan v. Drury, 9 Pa. St. 332, 49 Am. Dec. 565; Knowles v. Carpenter, 8 R. I. 548; Silli-man v. Gammage, 55 Tex. 365; Bullard v. Leach, 27 Vt. 491; Rorer v. Ferguson, 96 Vt. 411, 31 S. E. 817; Adams v. Angell, 5 Ch. Div. 634.

58. Cohn v. Hoffman, 45 Ark. Anglo Californian Bank v. Field, 115, 169 S. W. 783; Tolman v. Smith, 85 Cal. 280, 24 Pac. 743; 576; Cowling v. Britt, 114 Ark. 146 Cal. 644, 80 Pac. 1080; West-heimer v. Thompson, 3 Idaho, 560, 32 Pac. 205; Lowman v. Lowman, 118 111. 582, 9 N. E. 245; Hanlon v. Doherty, 109 Ind. 37, 9 N. E. 782; Kilmer v. Hannifan, 113 Iowa, 281, 85 N. W. 16; Simonton v Gray, 45 Me. 50; Savage v. Hall, 12 Gray. (Mass.) 363; Ryer v. Glass, 130 Mass. 227: Dutton

And there are cases which recognize this presumption of an intention in accordance with his interest, on the part of the person who acquired both the mortgaged property and the mortgage debt, although, in the particular case, he was ignorant of the junior incumbrance, and consequently, as a matter of fact, had no such intention.59 In so far as one is, even though he pays the mortgage debt, protected as against a junior lienor on the principle of subrogation,60 he might properly, it seems, be so protected, when he does not undertake to pay the debt, although he holds both the land and the debt.

The fact that a certificate of satisfaction or a release is executed upon the acquisition of the two interests by one person does not necessarily show that the mortgage is extinguished in favor of a junior lien,61 since such a release or certificate is not conclusive of v. Ires, 5 Mich. 515; Sieberling v. Tipton, 113 Mo. 373, 21 S. W. 4; Green v. Currier, 63 N. H. 563, 3 Atl. 428; Hoppock v. Ramsay, 28 N. J. Eq. 413; Denzler v. O'Keefe, 34 N. J. Eq. 361; Mills-paugh v. McBride, 7 Paige (N. Y.) 509, 34 Am. Dec. 360; Bell v. Ten-ny, 29 Ohio St. 240; Yoder v. Robinson, 45 Okla. 165, 145 Pac. 775; Katz v. Obenchain, 48 Ore. 352, 120 Am. St. Rep. 821, 85 Pac. 617; Moore v. Harrisburg Bank, 8 Watts (Pa.) 138; Duffy v. Mc-Guiness, 13 R. 1. 595; Lipscomb v. Goode, 57 S. C. 182, 35 S. E. 493; Gleason v. Carpenter, 74 Vt. 399, 52 Atl. 966; Hitchcock v. Nixon, 16 Wash. 281, 47 Pac. 412; McClaskey v. O'Brien, 16 W. Va. 791. In South Carolina there are decisions that merger will take place in spite of the resulting injury to the owner of the two interests, unless there is an express declaration of a contrary intention. Bleckley v. Branyan, 26 S. C. 424, 2 S. E. 319; Agnew v. Renwick, 27 S. C. 562, 4 S. E. 223. But this is questioned in Glenn v. Rudd, 68 S. C. 102, 102 Am. St. Rep. 659, 46 S. E. 555. And see Lipscomb v. Goode, 57 S. C. 182, 35 S. E. 493.

59. Lowman v. Lowman. 118 111. 582, 9 N. E. 245; Hanlon v. Do-herty, 109 Ind. 37, 9 N. E. 782; Stantons v. Thompson, 49 N. H. 272; Katz v. Obenchain, 48 Ore. 352, 120 Am. St. Rep. 821, 85 Pac. 617; Shapard v. Mixon, 122 Ark. 530, 184 S. W. 399. Contra, Lewis v. Hinman, 56 Conn. 55, 13 Atl. 143.

60. Post, Sec. 646.

61. Lowman v. Lowman, 118 111. 582, 9 N. E. 245; Hanlon v. Doherty, 109 Ind. 37, 9 N. E. 782; Bell v. Woodward, 34 N. H. 90; Stantons v. Thompson, 49 the discharge of the debt secured, and may be shown to have been executed by inadvertence, or in ignorance of the existence of a junior lien.62 And even the fact that the notes are cancelled has been held not to give priority to the junior incumbrance.63

- In person primarily liable. While, as above stated, the question of merger vel non is ordinarily to be determined with reference either to the intention or the interest of the party in whom the two interests are vested, there may be circumstances under which neither of these considerations can be given effect. Such is the case when one who is primarily liable for the mortgage debt acquires the debt with the lien incidental thereto, "takes an assignment of the mortgage," as it is usually expressed. One who is primarily liable for a debt cannot acquire the debt, that is, a claim against himself, and assert that the debt is still outstanding. The same person cannot be debtor and creditor, and the effect of his acquisition of the debt is to render it no longer existent. So when the person whose debt is secured by a mortgage, ordinarily the mortgagor himself, acquires the debt with its incidental lien, the debt being discharged, the mortgage lien is extinguished.64 And the case is the same when a grantee of the land assumes payment of the mortgage and thereafter acquires the mortgage debt. He being primarily liable for the debt, the debt is discharged.65 It would if intended as payment, is as effective as would be the payment of money, to discharge the debt and the incidental mortgage lien.80

N. H. 272. But see Woodside v. Lippold, 113 Ga. 877, 84 Am. St. Rep. 267, 39 S. E. 400, contra.

62. Post, Sec. 642(e).

63. Stantons v. Thompson, 49 N. H. 272; Shattuck v. Belknap Sav. Bank, 63 Kan. 443, 65 Pac. 643 (dictum).

64. Hussey v. Hill, 120 N. C. 312, 58 Am. St. Rep. 789, 26 S. E. 919.

65. Barnett & Jackson v. Mc

Millan, 176 Ala. 430, 58 So. 400; Belk v. Fossler, 49 Ind. App. 248, 96 N. E. 15; Fouche v. Delk, 83 Iowa, 297, 48 N. W. 1078; Lynch v. Pfeiffer, 110 N. Y. 33, 17 N. E. 402; Fretwell v. Branyon, 67 S. C. 95, 45 S. E. 157; Converse v. Cook, 8 Vt. 164; Willson v. Burton, 52 Vt. 394; Bier v. Beaty, 25 W. Va. 830; Latton v. McCarty, 142 Wis. 190, 125 N. W. 430. See Moorp v. Harrisburg Bank. 8 seem, however, that if the person so primarily liable for the mortgage debt undertakes to aequlre it by purchase, that is, by paying the amount of the debt to the holder thereof, this involves an extinguishment of the lien by payment rather than by merger, and consequently the rule {hat merger necessarily results if the person primarily liable acquires the debt and incidental mortgage security would seem properly to be restricted in its actual operation to cases in which such person acquires the debt and mortgage by gift or by the payment of less than the debt. The cases usually fail to distinguish in this regard between payment and merger, but it seems sufficiently evident that if the person primarily liable pays the debt, though nominally purchasing it and taking an assignment, the debt, with its incidental mortgage lien, is extinguished not by reason of its merger but by reason of its payment. That such person cannot claim to be subrogated, on payment of the debt, to the rights of the creditor, even though he undertakes to obtain an assignment of the debt, has been frequently decided,66 and these decisions would seem to involve the view that the delivery to the creditor, by the person primarily liable, of the amount of the debt, constitutes a payment and extinguishment of the debt.