The opinion of the court was delivered by
Vredenburgh, J.
This suit is brought to recover the possession of three lots in the city of Newark, known as Nos. 74, 75 and 76 of the James Baldwin property.
The plaintiff claimed title under the following clause in the will of James Baldwin, viz.: “ Whereas, I hold a mortgage, given by J. B. Thompson, on several lots, being part of the premises called the Baldwin property, and expect shortly to receive a conveyance for said premises in satisfaction of said mortgage, in which event I do give to my executor (the lessor of the plaintiff) .and his heirs four of the lots in said mortgage contained, being ■ desig[203]*203nated on the map of said property as lots Nos. 74, 75 and 76, being the lots in question in trust,” &c.
The will is dated the 10th of February, 1840. The mortgage was then past due, and the testator out of possession.
The plaintiff further gave in evidence the deed to the testator in consideration of the mortgage, dated the 14th February, 1840, four days after the execution of the will. The defendant, upon this evidence, moved for a non-suit, upon the ground that at the date of the will the testator had no sufficient estate to enable him to devise the same; that a will does not, under the statute then in force, pass after-acquired lands.
Admitting, without expressing any opinion, this to be true, does the principle apply to the present case ?
I do not understand this to be a devise of an estate which he expected afterwards to acquire, but of an estate which he then had, provided a certain thing happened in his lifetime. The language is, whereas I hold a mortgage, upon lots 74, 75 and 76, in the event of, if I get a deed, I devise the lots in the mortgage. This is not a devise of any interest he was to get by the deed, but of any interest he had in the land at the date of the will, provided he should get a deed.
It has never been doubted that if a mortgagee in fee devise the mortgaged premises by a particular description, that his legal interest will pass. Coote on Mortgages 570, and cases there cited; Ram on Wills 202; Ram on Assets 425.
If, therefore, the title of the testator had remained unchanged until his death, the devisee would have taken under the will the testator’s interest in the land at the date of the will, and proved title through the mortgage.
But it is contended that, by afterwards taking the deed, the testator’s interest under the mortgage was extinguished or merged in the deed, and that the plaintiff, by pro[204]*204dueing the deed, showed‘title out of himself, and in the heir, and thus ought to have been non-suited.
Was this the necessary result'of the testator’s taking the deed ? His intention is obvious. Are we forced by well-settled principles of law to defeat it? Cannot still the devisee take the interest under the mortgage, and the heir the interest under the deed ? Does the taking of the deed ipso facto revoke the will as to the mortgage interest, and extinguish the mortgage? For if taking the deed does not, by simple operation of law, annihilate the mortgage interest, the legal title, as against the heir, must, under our statute, vest in the devisee, whoever may be entitled to the beneficial interest under the mortgage. If the extinguishment of the mortgage be the necessary result of the equity of redemption and the mortgaged interest meeting in the same person, it must be so by mere operation of law, and consequently so in all cases and under all circumstances'. But this has been decided in this state repeatedly the other way. Den v. Van Ness, 5 Halst. 102; Hartshorne v. Hartshorne, 1 Green’s Ch. R. 356; Woodhull v. Reid, 1 Harr. 128; Thompson v. Boyd, 2 Zab. 548.
1 do not understand that the notion of merger applies at all, as between mortgagor and mortgagee, or rather as between the mortgage interest and the equity of redemption. A lesser estate merges in a greater, but here the mortgage and the equity, considered as estates, are both in fee, and the mortgage the dominant one. The mortgage is extinguished, and perhaps may be said to merge where the mortgagor pays off the mortgage. But where the mortgagé asserts its dominant power, either by a' voluntary conveyance in consideration of the debt, or by the compulsory process of the Court of Chancery, upon what notion'can it be said either to be merged or extinguished?
In fact, in such cases, is it not precisely the reverse? Is it not, then, the equity which is merged and extinguished in the mortgage interest? If this were not so would not the giving the release of the equity defeat the very [205]*205title it was meant to confirm by letting in intermediate encumbrancers? If an intermediate encumbrancer in case of no will should bring ejectment against the heir, could he not set up the mortgage? If the heir eould, then why not the devisee? Gan the heir say to the immediate encumbrancer that the mortgage is alive, and to the devisee that it is dead ? The true rule is laid down in 2 Powell on Devises 155, “that though the equity of redemption subsequently acquired by foreclosure will not pass by the will, it is clear that the devise of the legal estate will not be affected by the mere acquisition of the equity of redemption by this or any other means.” We are not to assume that he was ignorant of the law, and upon that assumption defeat his dear intention. If we assume that he did know that extinguishing the mortgage would defeat the devise, we must also assume that, from plain dictates of prudence, he intended to keep it alive to protect the devise and the title.
Courts have always declined to declare a mortgage extinguished by the mere uniting of the equity of redemption with the mortgage interest, when it can serve to protect the estate or any other honest purpose, and it is the wish of the holder so to consider it. Under this devise, the devisee, in my opinion, took at least the -same legal interest in the land that the testator had at the date of the will, and that the judge did right in overruling the motion to non-suit.
The next question is, does the defendant show a better title? He claims through a deed, given in 1854, by the collector of arrears of taxes of the fifth ward of the city of Newark.
Among other objections to this title, the plaintiff urges that the collector had no authority to ntake this deed, and that it is consequently void. The collector sold by virtue «f a tax warrant, issued by a justice of the peace, dated the 31st of October, 1850. If the warrant be void, the deed must he so also. By the 13th section of the act of [206]*206the 4th of March, 1841, supplementary to the Newark charter, it is provided that, notwithstanding any mistake in the name of the owner, or omission to name the real owner of lands in the city of Newark in assessing taxes, such assessment shall be valid, and the same may be proceeded against and sold in the manner prescribed by the supplement of the 2d March, 1839. In the case before us, the assessment was in the name of the estate of James Baldwin. James Baldwin died in 1841. It is a case, therefore, where the name of the real owner has been omitted in the assessment, and the proceedings to sell ought to have been under- the act of 1839.
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The opinion of the court was delivered by
Vredenburgh, J.
This suit is brought to recover the possession of three lots in the city of Newark, known as Nos. 74, 75 and 76 of the James Baldwin property.
The plaintiff claimed title under the following clause in the will of James Baldwin, viz.: “ Whereas, I hold a mortgage, given by J. B. Thompson, on several lots, being part of the premises called the Baldwin property, and expect shortly to receive a conveyance for said premises in satisfaction of said mortgage, in which event I do give to my executor (the lessor of the plaintiff) .and his heirs four of the lots in said mortgage contained, being ■ desig[203]*203nated on the map of said property as lots Nos. 74, 75 and 76, being the lots in question in trust,” &c.
The will is dated the 10th of February, 1840. The mortgage was then past due, and the testator out of possession.
The plaintiff further gave in evidence the deed to the testator in consideration of the mortgage, dated the 14th February, 1840, four days after the execution of the will. The defendant, upon this evidence, moved for a non-suit, upon the ground that at the date of the will the testator had no sufficient estate to enable him to devise the same; that a will does not, under the statute then in force, pass after-acquired lands.
Admitting, without expressing any opinion, this to be true, does the principle apply to the present case ?
I do not understand this to be a devise of an estate which he expected afterwards to acquire, but of an estate which he then had, provided a certain thing happened in his lifetime. The language is, whereas I hold a mortgage, upon lots 74, 75 and 76, in the event of, if I get a deed, I devise the lots in the mortgage. This is not a devise of any interest he was to get by the deed, but of any interest he had in the land at the date of the will, provided he should get a deed.
It has never been doubted that if a mortgagee in fee devise the mortgaged premises by a particular description, that his legal interest will pass. Coote on Mortgages 570, and cases there cited; Ram on Wills 202; Ram on Assets 425.
If, therefore, the title of the testator had remained unchanged until his death, the devisee would have taken under the will the testator’s interest in the land at the date of the will, and proved title through the mortgage.
But it is contended that, by afterwards taking the deed, the testator’s interest under the mortgage was extinguished or merged in the deed, and that the plaintiff, by pro[204]*204dueing the deed, showed‘title out of himself, and in the heir, and thus ought to have been non-suited.
Was this the necessary result'of the testator’s taking the deed ? His intention is obvious. Are we forced by well-settled principles of law to defeat it? Cannot still the devisee take the interest under the mortgage, and the heir the interest under the deed ? Does the taking of the deed ipso facto revoke the will as to the mortgage interest, and extinguish the mortgage? For if taking the deed does not, by simple operation of law, annihilate the mortgage interest, the legal title, as against the heir, must, under our statute, vest in the devisee, whoever may be entitled to the beneficial interest under the mortgage. If the extinguishment of the mortgage be the necessary result of the equity of redemption and the mortgaged interest meeting in the same person, it must be so by mere operation of law, and consequently so in all cases and under all circumstances'. But this has been decided in this state repeatedly the other way. Den v. Van Ness, 5 Halst. 102; Hartshorne v. Hartshorne, 1 Green’s Ch. R. 356; Woodhull v. Reid, 1 Harr. 128; Thompson v. Boyd, 2 Zab. 548.
1 do not understand that the notion of merger applies at all, as between mortgagor and mortgagee, or rather as between the mortgage interest and the equity of redemption. A lesser estate merges in a greater, but here the mortgage and the equity, considered as estates, are both in fee, and the mortgage the dominant one. The mortgage is extinguished, and perhaps may be said to merge where the mortgagor pays off the mortgage. But where the mortgagé asserts its dominant power, either by a' voluntary conveyance in consideration of the debt, or by the compulsory process of the Court of Chancery, upon what notion'can it be said either to be merged or extinguished?
In fact, in such cases, is it not precisely the reverse? Is it not, then, the equity which is merged and extinguished in the mortgage interest? If this were not so would not the giving the release of the equity defeat the very [205]*205title it was meant to confirm by letting in intermediate encumbrancers? If an intermediate encumbrancer in case of no will should bring ejectment against the heir, could he not set up the mortgage? If the heir eould, then why not the devisee? Gan the heir say to the immediate encumbrancer that the mortgage is alive, and to the devisee that it is dead ? The true rule is laid down in 2 Powell on Devises 155, “that though the equity of redemption subsequently acquired by foreclosure will not pass by the will, it is clear that the devise of the legal estate will not be affected by the mere acquisition of the equity of redemption by this or any other means.” We are not to assume that he was ignorant of the law, and upon that assumption defeat his dear intention. If we assume that he did know that extinguishing the mortgage would defeat the devise, we must also assume that, from plain dictates of prudence, he intended to keep it alive to protect the devise and the title.
Courts have always declined to declare a mortgage extinguished by the mere uniting of the equity of redemption with the mortgage interest, when it can serve to protect the estate or any other honest purpose, and it is the wish of the holder so to consider it. Under this devise, the devisee, in my opinion, took at least the -same legal interest in the land that the testator had at the date of the will, and that the judge did right in overruling the motion to non-suit.
The next question is, does the defendant show a better title? He claims through a deed, given in 1854, by the collector of arrears of taxes of the fifth ward of the city of Newark.
Among other objections to this title, the plaintiff urges that the collector had no authority to ntake this deed, and that it is consequently void. The collector sold by virtue «f a tax warrant, issued by a justice of the peace, dated the 31st of October, 1850. If the warrant be void, the deed must he so also. By the 13th section of the act of [206]*206the 4th of March, 1841, supplementary to the Newark charter, it is provided that, notwithstanding any mistake in the name of the owner, or omission to name the real owner of lands in the city of Newark in assessing taxes, such assessment shall be valid, and the same may be proceeded against and sold in the manner prescribed by the supplement of the 2d March, 1839. In the case before us, the assessment was in the name of the estate of James Baldwin. James Baldwin died in 1841. It is a case, therefore, where the name of the real owner has been omitted in the assessment, and the proceedings to sell ought to have been under- the act of 1839. But by the act of 1839 a justice of the peace or the collector of arrears of taxes had no jurisdiction of the matter. Indeed, the latter office had not then yet neeb created. By the act of 1839 the common council sold the land and executed a declaration of sale under their common seal, and the whole proceeding was different from the one befoi?e us. It is sought, by the defenee, to justify this sale under the 3d, 5th, 6th and 8th sections of said supplement of March 4th, 1841, and under the act of 1839. But it is perfectly manifest that these sections embrace and give jurisdiction to the justice and power to the collector only in the ordinary cases of assessments- in the names of the owners, and not in the exceptional cases of omitted or unknown owners.
The defendant also seeks to validate this sale under the 10th section of the act of March 13th, 1851, (Pamph. Ada of 1851, p. 235,) which provides, that in case of an omission to name the real owner, lands may be sold in the manner prescribed by the act of 1841. It is true that this act goes into effect immediately, and before the advertisement and* sale by the collector, and before this deed was executed, but it was passed after the warrant was issued. When passed, the warrant .was a nullity. This act looks to the future, not the past. There is nothing in it showing that it was intended to give vitality to past [207]*207void proceedings. The act of 1861, if it applied at all to such cases, left these proceedings where it found them. I am of opinion that the justice had no authority to issue this warrant, and that the warrant, consequently, could give the collector no authority to sel!. The rule to show cause must be discharged.
Cited in Duncan v. Smith, 2 Vr. 329 ; Lamb v. Cannon, 9 Vr. 364.