Gardner v. Astor — 3 Johns. Ch. 53

Majority

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Gardner, administrator of Gardner, against Astor.

October 13

Headnote

Where the equitable and legal estate are united in the same person, the for» mer is merged in the latter; as where the owner of an equity of redemption pays off a subsisting mortgage, and takes an assignment of it, it will he intended that he does it to exonerate his estate from the incumbrance, and that the mortgage is extinguished, unless it is made to appear that he has some beneficial interest in keeping the legal and equitable estates distinct.

ON the 20th of August, 1800, Daniel R Durning executed a bond and mortgage in fee, to Evert Bancker, for securing,the payment of 2,500 dollars, in one year.

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In.1801, all the right, title and interest of Burning in the mortgaged premises, were sold by the sheriff, undér a farf facias, issued on a judgment against B. at the suit of Joseph Winter, for 7,661 dollars and 37 cents, to Philip Brasher, who was the highest bidder, for 4,933 dollars and 17 cents. Brasher, who acted as the agent of Winter in purchasing at the sheriff’s sale, on the 19th of December, 1801, released and conveyed the premises to Winter; and the deed was recorded the 8th of June, 1808.

Bancker, the mortgagee, on the 5th of November, 1800, assigned the bond and mortgage to his son, Christopher, who died soon after, having made his will, and appointed R. Strong and «á. Bancker his executors. 'On the 11th of December, 1806, Winter paid off the bond and mortgage to the executors of C. B., and took an assignment thereof, by which he became possessed of the legal and equitable interests in the premises. Being so seised and possessed of the premises, Winter, on the 10th of January, 1811, sold and conveyed the same; in fee simple, to the defendant, J. J. Aslor, for the consideration of 7,500 dollars, with full covenants of seizin, against incumbrances, for quiet enjoyment, and warranty, which deed was duly recorded on the 15th of January, 1811.

Winter, by an assignment dated the 6th of March, 1810, transferred the bond and mortgage to Charles Gardner, (who died intestate the 21st oí December, 1811,) as security for a bond of 3,500 dollars, dated the 22d oí'January, 1810. This assignment was not acknowledged, until the 28th of January, 1811, and was not recorded,

The defendant, in his answer, averred that he purchased the premises of Winter, absolutely, for a good and valuable consideration, and under the assurance of IF. that there was no incumbrance thereon, and without any knowledge or suspicion of the assignment of the mortgage to Gardner, and with the full assurance and belief that Winter had a good and perfect title to the premises; and that be

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verily believed that the assignment from W. to €?., though dated prior to the deed from W. to the defendant, was, in fact, executed subsequently to the defendant’s deed.

The cause was heard on the bill and answer.

D. B. Ogden, for the plaintiff.

Harison, for the defendant.

This cause is brought to a hearing upon the bill and answer, and I am, therefore, to take the answer as true.

Winter, in December, 1801,. purchased the equity of redemption in the mortgaged premises, and he shortly after-wards paid off an outstanding mortgage, and took an assignment of it, and thereby united in himself the legal and equitable estates, or the whole interest in the land. The question is, whether the incumbrance was not, by that act, extinguished ?

In Forbes v. Moffatt, (18 Vesey, 384.) a mortgagee of land afterwards took the equity of redemption by will, and it was held to be a question of intention, declared or presumed, whether in taking the estate, he meant the charge to sink into it, orto continue distinct from it. The charge, said the master of the rolls, had always been held to merge, when it was indifferent to the party in whom the interests had united, whether the charge should, or should not sink. In the present case, the intention of Winter was to extinguish the mortgage. It was paid off by him, and it was many years after that redemption, before he undertook to sell and assign the mprtgage as a subsisting incumbrance. I am very apprehensive, that the sale or assignment was made with unwarrantable views. It bears date, indeed, in March, 1810, but it was not acknowledged until after the sale of the land to the defendant, in January, 1811, for a full price, and with full covenants of warranty. The an

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sxver avers a belief that the assignment was subsequent te the deed to the defendent, and there is no proof to show vvhen the assignment was actually made.

There is no reason appearing from the case, why the two estates should have been kept distinct in the hands of Winter, and xve have seen to what abuse it may lead. Unless some beneficial interest for keeping up the distinction clearly appears, we ought rather to adopt the ordinary and natural conclusion, that when the owner of the equity of redemption pays off a subsisting mortgage, he does it to exonerate his estate. We ought, as a general rule, to follow the principle, that in the union of the equitable and legal estates in the same person, the former is merged and extinguished.

Bill dismissed, xvithout costs.