That one to whom the land has been transferred subject to a mortgage thereon,67 without assuming the mortgage debt, subsequently acquires the debt and mortgage, does not necessarily involve a discharge of the debt on the theory of merger. He is not personally liable for the debt, and consequently he is not in the impossible position of one asserting a claim against himself. Nevertheless he is, to the extent of the value of the land, under an obligation to his grantor to pay the debt, and the latter would consequently have a right to insist that, if such grantee pays the amount of the debt to the mortgagee, such payment be regarded as a payment of the debt, effecting its extinguishment in favor of such grantor, rather than a purchase of the debt, even though an intention to the latter effect is indicated by the making to him of an assignment.68 He can no more claim a right to take an assignment of the debt under such circumstances, as against his grantor, than he can claim a right of subrogation to the mortgagee's rights without an express assignment.69 He might, however, it seems, without reference to the express assignment, be entitled to be subrogated to the rights of the mortgagee, on thus paying the debt, as against a junior lienor.70

Watts (Pa.) 138; Chase Nat. Bank of New York v. Hastings, 20 Wash. 433, 55 Pac. 574. But Rorer v. Ferguson, 96 Va. 411, 31 S. E. 817, appears to be contra. And see he might well be allowed to keep the debt with the incidental mortgage security in full force and effect.

Fitch v. Applegate, 24 Wash. 25, 64 Pac. 147.

66. Post, Sec. 646.

67. Ante, Sec. 622.

It thus appearing that when the transferee of land subject to a mortgage obtains an assignment of the mortgage debt by paying therefor the amount of the debt, the question of the continued existence of the debt is one of payment, it follows that it is only when the assignment of the mortgage debt to such a grantee of the land is made by way of gift, or for a consideration less than the amount of the debt, that the question of whether such an assignment effects a merger of the debt can well arise. The answer to this question appears to be, in the ordinary case, that since the transferee of land subject to a mortgage is under an obligation to the mortgagor to have the debt, so far as possible, paid from the land transferred, he cannot, on taking an assignment of the debt, keep it alive as against the mortgagor, or the land retained by the mortgagor, except perhaps to the extent of its excess over the value of the land transferred. As against junior incumbrancers, however,

68. See Lydon v. Campbell, 204 Mass. 580, 91 N. E. 151.

69. Post, Sec. 646, note 98.

70. Post, this subsection, note

77

If one who is primarily liable at law for the whole debt, is but one of two or more co-obligors, it would seem that, as he is entitled to contribution in equity as against the others in case he pays the whole debt,71 so an assignment to him of the debt and mortgage would not be regarded in equity as effecting a merger of the debt except as regards his share thereof.72

- Conveyance to mortgage creditor. Upon the conveyance of the mortgaged land to the mortgagee, or to an assignee of the mortgagee, merger will not ordinarily occur in disregard of his intention or interest, since he is under no personal obligation as regards the payment of the debt73 The only case, it would seem, in which it would necessarily occur, in spite of his intention or interest to the contrary, would be when, in acquiring the land, he in terms assumes the mortgage debt. In such a case he would be in the position of a creditor who, by contract with his debtor, assumes payment of the debt to himself, and this would necessarily, it seems, extinguish the debt, and with it any lien by which it is secured.74

If the conveyance of the land to the mortgage creditor is "subject to" the debt, in the sense of making the land the primary fund for its payment, he cannot, it would seem clear, enforce a personal liability against the mortgagor or another upon the debt secured,75 except perhaps for the excess over the value of the land.76 But it does not seem that even under such circumstances the debt should be regarded as merged in favor of a person other than one who is personally liable for the debt, a subsequent lienor for instance.77 No personal liability for the debt being assumed by the mortgage creditor in accepting such a conveyance, he is not in the position of one holding a personal claim against himself, and the debt, with its incidental lien, may properly be regarded as still existent in his favor for the purpose of assertion against persons to whom he owes no obligation to see that the debt is paid.

71. Post, Sec. 646, note 95.

72. In Saint v. Cornwall, 207 Pa. 270, 56 Atl. 440, it seems to be decided that an assignment to him does not necessarily cause a merger evei in part.

73. See, e. g., Cowling v. Britt, 114 Ark. 175, 169 S. W. 783; Erooks v. Rice, 56 Cal. 428; La grange v. Greer-Wilkinson Lumber Co., 59 Ind. App. 488, 108 N. E. 373; Hartford Fire Ins. Co. v.

Buckwalter Lumber Co., 116 Miss. 822, 77 So.798; Dubbels v. Thompson, 49 Mont. 550, 143 Pac. 98C. 74. See Kneeland v. Moore, 138 Mass. 198; Forthman v. Deters, 206 111. 159, 99 Am. St. Rep. 145: 69 N. E. 97. But Mathews v. Jones, 47 Neb. 616, 66 N. W. 622, is apparently to the effect that merger does not necessarily occur in such case.

Though a conveyance of the land tc the holder of the mortgage debt would not, in the ordinary case, necessarily involve a merger of the debt, it will do so if such appears to be his intention, or if neither his intention or his interest is shown to be otherwise.78 And even though his intention or interest is to keep alive the debt and its incidental lien, he cannot do so, it is evident, if the conveyance of the mortgaged premises to such holder of the mortgage debt was made and accepted as a payment of the debt. In such case the debt is discharged, not as having been merged but as having been paid.79 The conveyance of the property,