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 .
Even conceding that a tender of the debt at maturity may operate to discharge the mortgage lien, a tender, unless kept good, will not have such an effect, it has been decided, if made by a purchaser of the land, who as not having assumed the debt, is under no personal obligation in reference thereto.30 In jurisdictions where payment after default is insufficient to divest the mortgagee's legal title,31 a mere tender of payment after default can obviously have no greater effect.32
- (e) Merger. The question whether the acquisition of the mortgaged land and of the mortgage debt by one person has in the particular case the effect of discharging the debt and extinguishing the mortgage lien is frequently one of some difficulty. When such is the result of the union of the two interests in one person, it is said that a "merger" of the mortgage occurs, or that the mortgage is "merged." The words "merge" and 'merger," as used in this connection, are calculated to suggest false analogies drawn from the doctrine of merger of a less in a greater estate upon their acquisition by one person,33 but there appear to be no other available expressions, and they will here be used in accordance with universal practice. "What is, it is conceived, even more misleading, as regards erately and intentionally refused," and that "sufficient opportunity must have been afforded to ascertain the amount due".
29. Manning v. Burges, 1 Ch. Cas. 29; Gyles v. Hall, 2 P. Wms. 378; Kinnaird v. Trolloppe, 42 Ch. D. 610; Greenwood v. Sut-cliffe (1892), 1 Ch. 1.
30. Harris v. Jex, 66 Barb. (N. Y.) 32; Brunswick Realty Co. v.
University Inv. Co.,. 43 Utah, 75, 134 Pac. 608.
31. Ante, Sec. 640(b), note 76.
32. Shields v. Lozear, 34 N. J. Law, 496, 3 Am. Rep. 256; Rowell v. Mitchell, 68 Me. 21; May-nard v. Hunt, 5 Pick. (Mass.) 240; Currier v. Gale, 9 Allen (Mass.) 522; Parker v. Beasley, 116 N. C. 1, 33 L. R. A. 231, 21 S. E. 955.
33. Ante, Sec.Sec. 34, 59(e).
In order that the debt may be regarded as merged, it is necessary that it be held in the same right as the land. For instance, if the debt or land is held by one in his own right while the land or debt is held by him as trustee or executor, no merger will occur.36
34. Brown v. Bartee, 10 Sm. & M. (Miss.) 268.
35. See Hatz's Appeal, 40 Pa. St. 209.
In the present state of the law as to married women, no merger can result from the fact that the land and the mortgage debt are held, the one by the husband and the other by the wife.37
Merger can evidently not occur when the land is conveyed to the mortgagee after he has assigned the debt with its lien to another,38 nor can it occur when the mortgage debt is transferred to the mortgagor after he has transferred the land to another,39 though in the latter case, if the transfer of the land by the mortgagor contains covenants of title covering the mortgage lien, the mortgagor is estopped, on acquiring the debt, to assert the mortgage against the land.40
In case the owner of the mortgaged land, whether the original mortgagor or his transferee, conveys the land to the mortgage creditor under an agreement that this shall operate to extinguish the mortgage debt, such conveyance ordinarily extinguishes the lien of the mortgage. In that case the extinguishment of the
36. Hough v. De Forest, 13 Conn. 472; Denzler v. O'Keefe, 34 N. J. Eq. 361; Swayze v. Schuyler, 59 N. J. Eq. 75, 45 Atl. 347; Angel v. Boner, 38 Barb. (N. Y.) 425; Clowney v. Cathcart, 2 S. Car. 395.
37. Skinner v. Hale, 76 Conn. 223, 56 Atl. 524; Bean v. Boothby, 57 Me. 295; Bemis v. Call, 10 Allen (Mass.) 512; Cormerais v. Wesselhoft, 114 Mass. 550; Bray v. Conrad, 101 Mo. 331, 13 S. W. 957; Power v. Lester, 23 N. Y. 527. But this may affect the right to foreclose. T acker v. Fenno, 110 Mass. 311; see Butler v. Ives, 139 Mass. 202, 29 N. E. 654.
38. International Bank of Chicago v. Wilshire, 108 111. 143; Cole v. Beale, 89 111. App. 424; Campbell v. Vedder, 1 Abb. Dec. 295; Curtis v. Moore, 152 N. Y. 159, 57 Am. St. Rep. 506, 46 N. E. 168; Lime Rock Nat. Bank v. Mowry, 66 N. H. 598, 13 L. R. A. 294; Case v. Fant, 53 Fed. 41, 3 C. C. A. 420; Oregon, etc., Inv. Co. v. Shaw, 6 Sawy. (N. S.) 52.
39. Pratt v. Buckley, 175 Mass. 115, 55 N. E. 889; Mickles v. Townsend, 18 N. Y. 575.
40. Mickles v. Townsend, 18 N. Y. 575; Byles v. Kellogg, 67 Mich. 318, 34 N. W. 671; Jones v. Lamar, 34 Fed. 454, debt and its attendant security is properly by way of payment or accord and satisfaction,41 but the courts usually refer to it as a case of merger. Occasionally even in the absence of any evidence of an intention to extinguish the debt by such a conveyance, the debt has been regarded as extinguished by such a conveyance to the mortgage creditor provided the amount paid by him for the transfer and the amount of the debt did not together exceed the value of the land, the theory being said to be that there is in such case the equivalent of a strict foreclosure, which extinguishes the debt to the extent of the value of the land.42
-Intention ordinarily controlling. The theory on which, upon the acquisition by one person of the mortgaged land and of the mortgage debt with the incidental lien on the land, the debt, and with it the lien, may ordinarily be regarded as extinguished, would seem to be that, under such circumstances, the person owning and controlling the debt can usually have no object in keeping it alive, it being in substance a claim against his own property, and he may consequently be presumed to intend that the debt shall be extinguished, a presumption to which, as tending to the simplification of titles, the courts are ready to give full effect. In accordance with this view are the numerous decisions that the intention of the holder of the two interests is the decisive consideration, and that no merger will take place if there is proof of an intention on his part to the contrary.43