a lien on the real estate. The doctrine of merger does not apply. Neither did the payment of the amount of the indebtedness by the owner of the property, and the assignment of the judgment for her benefit, operate to extinguish the judgment. The assignment of a judgment will not satisfy or extinguish it where the assignee, although liable for the debt evidenced by it, is not a party to the judgment, or occupies the position of surety only. 23 Cyc. 1475. The only effect of the transaction was to relieve the land of the mortgage lien. The assignee was left to look to the estate alone, and the extent of the ultimate satisfaction of the judgment depends upon the solvency of the estate."

There seems to be some conflict in the New York cases. In Russell v. Pistor (1852) 7 N. Y. 171, 57 Am. Dec. 509, the prevailing rule, as heretofore stated, was specifically laid down.

So, in Ely v. McNight (1864) 30 How. Pr. (N. Y.) 97, it appeared that a mortgagor conveyed the premises, under an agreement that the purchaser should pay the mortgage as a part of the consideration. Instead of paying the mortgage, the purchaser took an assignment of it, with the accompanying bond, to himself, and subsequently assigned it to a third person, who sued the mortgagor on the bond. It was held that the action could not be maintained, the court saying that, between the mortgagor and the purchaser, the agreement operated to discharge the mortgage debt, and the assignee of the purchaser stood in no better position than his assignor. See also Armstrong v. Purcell (1902) 74 App. Div. 623, 78 N. Y. Supp. 36.

But in the case of Kellogg v. Ames (1869) 41 N. Y. 259, it appeared that the purchasers of land subject to a mortgage assumed the payment of the mortgage as a part of the consideration money, and subsequently they paid the mortgage, but took an assignment of the mortgage instead of a satisfaction, and reissued the mortgage to the plaintiff. They then sold

the land to the defendant with warranty of title. It was held that the plaintiff is entitled to a foreclosure. The court said: "Douglass not being a party to the mortgage, his paying the amount thereof to the mortgagees, and taking an assignment thereof, with the intention and electing that it should not be regarded paid or merged, does not extinguish or cancel it."

In Coles v. Appleby (1881) 87 N. Y. 114, it appeared that one of the purchasers of land assumed to pay the mortgage, and thereafter paid it and obtained an assignment thereof to himself. He reassigned the mortgage to the plaintiff and sold the land to the defendant. It was held that there was no merger, since there was no intention to pay and satisfy the mortgagee, but to keep it alive as an existing and valid security.

c. Outstanding dower right.

It is well settled that where a wife joins with her husband in a mortgage, releasing her dower right, she may nevertheless enforce it, over and above the mortgage debt to which she is bound, and the owner of the title who acquires the mortgage, intending thereby to keep it alive, must take subject to her dower right, while, in the absence of such an intention, the widow gets dower free from the encumbrance of the mortgage.

Thus, in Selb v. Montague (1882) 102 Ill. 446, wherein it appeared that the plaintiff purchased mortgaged land at an administrator's sale and then redeemed from the mortgage, in which the wife had relinquished her dower right, it was held that the wife could have dower only by paying her ratable share of the amount necessary to discharge the mortgage.

In Simonton v. Gray (1852) 34 Me. 50, the court said: "If the purchaser of an equity of redemption take an assignment of the mortgage, both estates may stand, though united in the same person. When substantial justice may be promoted, the mortgage will be upheld or not, according to his intention or his interest. For mergers are not favored in courts of law or

in courts of equity. In the case at bar, it is for the interest of the purchaser of the equity of redemption, and of those claiming under him, that the mortgage should be upheld against the encumbrance of dower. It would not comport with just principles of law or equity, that, after uniting with her husband and releasing her right, the plaintiff should have dower in that estate. But she is entitled to dower in the equity of redemption, to which her release, and the subsequent conveyance by her husband, present no bar; and she can, therefore, redeem the estate."

See to the same effect, Sargeant v. Fuller (1870) 105 Mass. 119; Hinds v. Ballou (1863) 44 N. H. 619; Hartshorne v. Hartshorne (1840) 2 N. J. Eq. 349.

In Cox v. Garst (1883) 105 Ill. 342, it appeared that a wife joined with her husband in a mortgage of his land, releasing her dower right. After the death of the husband the land was sold and the plaintiff was a purchaser of the land, subject to the mortgage. The plaintiff paid off the mortgage debt and the mortgagee executed a release of the mortgage. The plaintiff then sued to foreclose the mortgage, claiming that it was still subsisting, and asking that he be subrogated to all the rights of the mortgagee. The widow filed her cross bill, claiming dower in the premises. It was held that the plaintiff was entitled to a foreclosure, but subject to the dower right of the widow. The court said that, if a purchaser discharges the mortgage by payment, he is not, as against the widow of the mortgagor, entitled to be subrogated to the rights and equities of the mortgagee, and cannot foreclose the mortgage against the widow so as to cut off her dower, but she must pay the mortgage.

It appeared in Bunch v. Grave (1887) 111 Ind. 351, 12 N. E. 514, that the defendant purchased at a sheriff's sale on execution a tract of land the property of the plaintiff's husband, subject to the lien of two mortgages executed by the husband, in which the plaintiff joined. The plaintiff had an undivided one third set off in her

favor in accordance with the dower act. The defendant went into possession of the two thirds set off to him. Subsequently the defendant obtained an assignment of one of the mortgages outstanding, which he caused to be foreclosed, taking the decree in his own name. The other mortgage was foreclosed, and the decree was purchased and assigned to the defendant. Both decrees adjudged that the defendant's interest in the land should be first sold for the payment of the debts. It was held that when the defendant purchased the mortgages he thereby extinguished all rights against the plaintiff, and the mortgages were merged in the fee which he had previously acquired, and thereby they ceased to operate as liens on the plaintiff's interest in the land. The court said: "It is well settled that where an equity of redemption is sold on execution, the purchaser takes the land charged with the payment of all prior encumbrances. The land becomes the primary fund for the payment of all encumbrances charged upon it prior to that upon which the sale is made. The amount bid will be presumed to be the price or value of the property, less the encumbrances. In such a case, where the purchaser obtains title to the land and subsequently pays off the pre-existing encumbrances, of which he had notice, he will not be permitted to keep them alive by having them assigned to himself. Having obtained the fund out of which the encumbrances are to be paid, he does nothing more than to discharge his own equitable obligation when he pays them off."

In Carll v. Butman (1830) 7 Me. 102, wherein it appeared that the purchaser of an equity of redemption afterwards took a deed of release and quitclaim from the mortgagee, it was held that there was no extinguishment of the mortgage, but only an assignment of the title of the mortgage, but the widow of the mortgagor could get her dower right by paying her just proportion of the debt.

In Hatch v. Palmer (1870) 58 Me. 271, it appeared that a mortgagor assigned his property for the benefit of

creditors. The assignee sold the equity of redemption to the defendants, subject to the mortgage. It was held that a payment of the mortgage by the defendants, and an assignment thereof to themselves, operated as an extinguishment of the mortgage; and the mortgagor's widow, since she did not join in the deed, might recover dower, notwithstanding she joined in the mortgage releasing her dower.

It appeared in Gibson v. Crehore (1826) 3 Pick. (Mass.) 475, that a stranger purchased an equity of redemption from the administrator of an insolvent estate, and gave a bond for the payment of the mortgage debt. It was held he could set up the mortgage against the widow, notwithstanding his obligation to pay the debt. The court construed the bond as a personal contract of indemnity, in which the widow had no interest.

In Eaton v. Simonds (1833) 14 Pick. (Mass.) 98, it appeared that the owner of land mortgaged it and his wife released her dower. The equity of redemption was sold to the defendant on an execution against the mortgagor. The defendant sought thereafter an assignment of the mortgage, but the mortgagee insisted it was unnecessary, and it subsequently was discharged from the records. It was held that the discharge was an extinguishment of the mortgage and not an equitable assignment; and that the widow was entitled to dower in the land, free from the encumbrance of the mortgage.

In Wedge v. Moore (1850) 6 Cush. (Mass.) 8, the court held that a widow who released her dower in the second only of three mortgages made by her husband is entitled to dower in the land, as against the third mortgagee, who acquired the legal title, where the latter paid and discharged the mortgages, them.

thereby extinguishing

In Savage v. Hall (1859) 12 Gray (Mass.) 363, it was held that a quitclaim deed, after breach of the condition of the mortgage, to a purchaser of the equity of redemption, does not merge the mortgage as against the mortgagor's widow, who joined in the

mortgage and released her dower. The court, after discussing earlier cases, said: "These cases fully sustain the right of the owner of the equity of redemption to become the assignee of the mortgage, that it may be transferred by a deed of quitclaim, and that such assignment, when thus taken, does not extinguish the mortgage. Such merger is held not to take effect where the manifest interest of the party taking such conveyance is to acquire the mortgage interest. Especially, such merger does not take effect where the interest of the party requires that he should continue to hold his two different titles distinct to protect him against some other interest which would intervene between the two estates in case they were held to be merged."

In Strong v. Converse (1864) 8 Allen (Mass.) 557, 85 Am. Dec. 732, it was held that where land is conveyed subject to mortgage, and the grantee pays off the mortgage and takes an assignment thereof, the mortgage is not discharged, and the widow cannot get dower free therefrom.

In Pitts v. Aldrich (1865) 11 Allen (Mass.) 39, the court said: "No question of merger or of payment of the mortgage by the defendant seems open in the case, for the bill expressly alleges that the defendant entered into possession of the premises under the mortgage and assignment, and has ever since continued in such possession, though he had previously become the owner of the equity of redemption by purchase from the assignee in insolvency of the mortgagor. The decisions of this court most clearly establish that the purchaser of an equity of redemption from the assignee in insolvency of the mortgagor, who takes an assignment of the mortgage, may set up the mortgage and its foreclosure against a claim of dower made by one who joined in the mortgage for the purpose of releasing it."

In McCabe v. Swap (1867) 14 Allen (Mass.) 188, it was held that where a deed contains an express stipulation that the grantee shall pay off an existing mortgage on the land, and the

grantee takes an assignment of the mortgage to himself, the mortgage is extinguished by merger, and the widow of the mortgagor, who did not join in the deed, may maintain a writ of dower against the grantee, although she joined in the mortgage releasing her dower.

In King v. King (1868) 100 Mass. 224, it was held that an heir of real estate liable for payment of the debts of his ancestor, who takes an assignment of the mortgage, cannot, by virtue of a foreclosure of the mortgage, defeat the widow's right of dower, especially where it has been already assigned.

In Atkinson v. Angert (1870) 46 Mo. 515, it appeared that the purchaser of the equity of redemption paid off the mortgage debt absolutely and unqualifiedly without taking an assignment, and without any attempt to keep it alive. It was held that the mortgage was extinguished, and the widow was entitled to dower, although, she relinquished it in the mortgage. See also Atkinson v. Stewart (1870) 46 Mo. 510.

In Robinson v. Leavitt (1834) 7 N. H. 73, it appeared that property was mortgaged, and the heirs of the mortgagor paid the mortgage and procured an assignment thereof. They sued the widow, the administratrix, to recover possession of the mortgaged premises. The widow as administratrix petitioned for leave to sell the property, and the heirs, to prevent this, executed a bond to pay the debts. It was held that the mortgage was discharged, and the widow was entitled to dower in the land.

In Swaine v. Perine (1821) 5 Johns. Ch. (N. Y.) 482, 9 Am. Dec. 318, it was held that where an heir redeems the land by paying off the mortgage, the widow, though she joined in the mortgage, is entitled to dower.

In Coates v. Cheever (1823) 1 Cow. (N. Y.) 460, the court held that where the owner of the equity of redemption buys the mortgage and takes an assignment to himself, this extinguishes the mortgage, and the widow of the mortgagor is entitled to dower.

In Russell v. Austin (1828) 1 Paige

(N. Y.) 192, the court said that if the owner of the legal estate purchases a mortgage executed by both husband and wife, with the intention of protecting himself against the claim of dower, the widow can be endowed of the equity of redemption only, and she is bound to contribute her share towards the payment of the mortgage.

In De Lisle v. Herbs (1881) 25 Hun (N. Y.) 485, it was held that, where the owner of the equity of redemption acquires a purchase-money mortgage, the widow's right of dower is cut off by the mortgage.

In Bryar's Appeal (1886) 111 Pa. 81, 2 Atl. 344, it appeared that land was purchased from an assignee in bankruptcy, subject to a mortgage given by the bankrupt. The purchaser afterwards bought the mortgage and sold the land under a judgment recovered on the mortgage, and he himself became purchaser. It was held that the dower of the bankrupt's wife was devested by the sale.

d. Owner's interest that of cotenant.

The general rule is that, when a cotenant purchases an outstanding mortgage upon the joint estate, it does not merge, but it inures to the benefit of the other cotenant, on the latter contributing his proportion of the purchase money.

Thus, in Blodgett v. Hildreth (1864) 8 Allen (Mass.) 186, wherein it appeared that a cotenant purchased an outstanding mortgage on the joint estate, it was held that it inured to the benefit of the cotenant, and the purchaser could enforce it against the joint estate only after the cotenant. had refused to contribute his share.

So, in Barker v. Flood (1870) 103 Mass. 474, it was held that where a mortgage is assigned to one of two tenants in common of the equity of redemption, the mortgage is not discharged and can be foreclosed by the assignee. The other cotenant is not prejudiced, for he may redeem by payment of one half of the mortgage debt.

In Lang v. Cadwell (1893) 13 Mont. 458, 34 Pac. 957, it was held that where one of two mortgagors pays the mortgage debt to himself, he is not en

titled to a personal judgment against the grantee of his comortgagor in an action to enforce contribution and for a foreclosure of the latter's interest, since the conveyance was made subject to the mortgage. The court said: "Where one tenant in common pays off a lien upon the joint property, he becomes entitled to contribution from his cotenants to the extent of their respective interests; and a court of equity will, in order to secure such contribution, enforce upon the interests of all an equitable lien of the same character as that which has been removed."

In Taylor v. Bassett (1825) 3 N. H. 294, wherein it appeared that two persons were severally seised of two distinct parcels of a tract of land, which had been mortgaged to a third person, and one of them paid the debt and took an assignment of the mortgage, it was held that he might consider the mortgage as discharged, and bring an action for contribution, or consider it subsisting, and hold the land till the other paid a reasonable contribution.

In Clark v. Clark (1875) 56 N. H. 105, the court said that when the owner of an equity of redemption becomes a devisee, as tenant in common of an undivided interest in the mortgage debt, the two estates do not become united, so as to discharge any part of the mortgage debt.

In Van Horne v. Fonda (1821) 5 Johns. Ch. (N. Y.) 388, it was held that one of two devisees could not purchase an encumbrance on their joint estate and use it to sell the land, and to strip the other of his property. The court said: "I will not say, however, that one tenant in common may not, in any case, purchase in an outstanding title for his exclusive benefit. But when two devisees are in possession, under an imperfect title, derived from their common ancestor, there would seem, naturally and equitably, to arise an obligation between them, resulting from their joint claim and community of interests, that one of them should not affect the claim, to 46 A.L.R.-22.

the prejudice of the other. It is like an expense laid out upon a common subject, by one of the owners, in which case all are entitled to the common benefit, on bearing a due proportion of the expense. It is not consistent with good faith, nor with the duty which the connection of the parties, as claimants of a common subject, created, that one of them should be able, without the consent of the other, to buy in an outstanding title, and appropriate the whole subject to himself, and thus undermine and oust his companion. It would be repugnant to a sense of refined and accurate justice. It would be immoral, because it would be against the reciprocal obligation to do nothing to the prejudice of each other's equal claim, which the relationship of the parties, as joint devisees, created. Community of interest produces a community of duty, and there is no real difference, on the ground of policy and justice, whether one cotenant buys up an outstanding encumbrance, or an adverse title, to disseise and expel his cotenant. cannot be tolerated when applied to a common subject in which the parties had equal concern, and which created a mutual obligation candidly and benevolently with each other, and to cause no harm to their joint interest." See also Beal v. Miller (1874) 1 Hun (N. Y.) 390.

It

In Wheeler v. Willard (1871) 44 Vt. 640, a purchase by one tenant in common of an encumbrance on the common estate was held to inure to the benefit of the estate, so that each tenant was liable to contribute to the cotenant.

In Saint v. Cornwall (1903) 207 Pa. 270, 56 Atl. 440, wherein it appeared that one of two co-owners of real estate paid off a joint mortgage given by both, but took an assignment to himself, and subsequently conveyed his interest subject to the mortgage, it was held that it would be presumed that it was his intention to preserve the lien of the mortgage, and not to merge it in the fee. W. M.