Browne v. Perris
New York Supreme Court
William G. Perris became the owner of premises subject to a mortgage, which was subsequently assigned to him, with a provision therein that the same was sold to him “as a muniment of title, and not to merge in the fee of the land covered thereby, which is now owned by the said party of the second part.”
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William G. Perris became the owner of premises subject to a mortgage, which was subsequently assigned to him, with a provision therein that the same was sold to him “as a muniment of title, and not to merge in the fee of the land covered thereby, which is now owned by the said party of the second part.” It was alleged by the plaintiff in his complaint that Perris “entertained a feeling of doubt and uncertainty in respect to the fact whether or not any defect existed in his title to the said-real property so acquired by him; and that, at the time of the payment by him of the amount of the said…
1Opinion of the CourtLawrence, J.
It has been held that where the equity of redemption is conveyed to a mortgagee, under an express written agreement between the parties that the deed shall not operate as a merger, except at the election of the mortgagee, equity will preserve the two estates distinct, unless the mortgagee appears to have elected that they should be merged. Spencer v. Ayrault, 10 N. Y. 202; Compton v. Oxenden, 2 Ves. Jr. 264; James v. Morey, 2 Cow. 246; Abbott v. Curran, 98 B. Y. 665. But in all such cases equity will look to the real and actual intention of the parties. Applying this principle to the case at…
2Cases cited2 opinions
- James v. MoreyCourt for the Trial of Impeachments and Correction of Errors · 1823
- Spencer v. . AyraultNew York Court of Appeals · 1854