Loomis, J.
This is a petition for foreclosure which is claimed to be insufficient upon five distinct grounds, viz:
1st. That there is no allegation that the petitioner has any subsisting interest in the premises to entitle him to a decree of foreclosure.
2d. That the mortgage has been extinguished by merger in the legal estate.
[493]*4938d. That the original mortgagee was in possession over twenty years, and there is no offer to account in the bill and no showing that upon such accounting anything would be due on the mortgage.
4th. That the possession of the mortgagee for more than fifteen years extinguished the equity of redemption and vested the title absolutely in the mortgagee.
5th. That the right acquired by the petitioner by virtue of the assignment of the mortgage to him is barred by the statute of limitations.
In support of the first claim it is said that the petition describes the mortgage by virtue of which the plaintiff claims title as merely conveying the light, title and interest of John K. Goodman in the land described, of which he was then seized and possessed, without showing what that interest was.
In making this claim the respondents overlook an important allegation which immediately follows, defining the interest conveyed as “one undivided fifth part” of the premises described. The conveyance is absolute of a fifth part and presumably conveys a fee. The phrase “ all my right, title and interest” applies only to the entire property, and might have been omitted, leaving the words of conveyance to apply directly and immediately to the fifth part, and the meaning would have been the same. And besides, the instrument of conveyance is referred to in the petition and described as “ a good and valid mortgage deed, with the usual covenants of warranty and seizin.”
The next question is, whether there was a merger of the legal and equitable titles in Abigail Goodman which extinguished the mortgage.
It appears that both titles vested in Abigail, the mortgagee, and if nothing more was shown we should presume a merger. But courts of equity will always keep the estates separate and uphold the mortgage, when it is required by the justice of the case or the intent of the parties. Stanton v. Thompson, 49 N. Hamp., 272; Bell v. Woodward, 34 N. Hamp., 90; Lockwood v. Sturdevant, 6 Conn., 373; Donalds v. Plumb, 8 Conn., 447; Bassett v. Mason, 18 Conn., 131; Mallory v. Hitchcock, [494]*49429 Conn., 250; Delaware § Hudson Canal Co. v. Bonnell, 46 Conn., 10.
In the case at bar a merger should be prevented because both the justice of the case and the intention of the mortgagee alike require it. The petitioner purchased the mortgage for a valuable consideration from the mortgagee herself, while the respondents are merely recipients of her bounty, taking the remainder of the estate by her will, and holding it, as the petition avers, “ subject to the mortgage.” Their position in equity can be no better than that of their devisor, and it must be inferior to that of the petitioner.
In addition to the justice of the case the facts alleged in the petition furnish the most cogent evidence that the mortgagee’s intention was to keep the estates separate.. She not only severed the two titles, but put them as wide asunder as possible; devising the fee to the respondents, and selling and conveying the mortgage to the petitioner.
But the respondents insist that the merger was complete the instant the two estates vested in Abigail, and that evidence of her intention to prevent a merger, to be effectual, must be contemporaneous with the union of the two estates. This proposition is neither supported by good reason nor by good authorities.
In James v. Morey, 2 Cowen, 248, the fee and the mortgage interest united in one Wattles, a mortgagee, who soon after verbally declared himself to be the absolute owner, and then after the lapse of several months sold his interest in the mortgage, and yet the last mentioned act as evidencing his intention prevailed to prevent a merger. Woodworth, J., in giving the opinion, said:—“Until he made a disposition of the property and until some person acquired an interest, he was at perfect liberty to consider the mortgage merged or not as might be most beneficial. If the question is to be decided by intent, express or implied, when does it become fixed and unchangeable? Certainly not until some one acquires an interest, and thereby obtains a right to. draw it in question. It would be novel in principle, and I apprehend without precedent in any book of authority, that a stranger should [495]*495urge—You once declared the mortgage was merged, and although at the time it was indifferent to all the world in what manner you treated it, you are bound by that election.”
In Forbes v. Moffat, 18 Ves. Jun., 389, the acts of the party were considered and examined for a series of years, and up to the time of his death, a period of ten years, for some conclusive evidence of intention, but not finding these acts and declarations decisive, the case finally turned on the legal presumption of his intention that the charge should not merge because it was for his interest that it should not.
The only authority that we can find which seems at all to support the claim of the respondents is a passing remark of the Chancellor in giving the opinion in Starr v. Ellis, 6 John. Ch., 393, that “unless some beneficial interest be shown to require the charge to be kept up, or the intention to keep up the charge be immediately and duly declared, it shall merge.” But in James v. Morey, supra, in a very able and exhaustive review of the authorities this is shown not to be good law. The question of merger was not carefully considered, as it was not necessary. The case turned on the fact that it was a fraudulent assignment from a father to his son. Sutherland, J., on pages 306-7, says:—“To establish the rule that the intention of the party shall be immediately declared or the law shall declare it for him, would be virtually to take from him the privilege of election. How is he to make his intention known except by his acts in relation to the property which is the subject of the charge ? Is not a reasonable time then to be allowed him ? Is he to be compelled immediately to assign the charge if he intends to keep it distinct ? or to sell the fee if he intends the charge shall merge ? If the law gives’him the privilege of election, it will give him a reasonable time within which to make it. This appears to me to be the good sense of the rule, and it is clearly sanctioned by the authorities to which I have adverted, particularly by the case of Forbes v. Moffatt.”
■ It being clear that there was no merger, it becomes unnecessary to consider the question of estoppel, which was discussed by counsel in this connection.
[496]*496The third objection, that the petition contains no offer to account for rents and profits while the mortgagee was in possession, and does not show that on the accounting any thing would be due on the mortgage, is sufficiently answered, as a question of pleading, by the averment “that the mortgage note has never been paid, but is still due, with the interest thereon.”
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Loomis, J.
This is a petition for foreclosure which is claimed to be insufficient upon five distinct grounds, viz:
1st. That there is no allegation that the petitioner has any subsisting interest in the premises to entitle him to a decree of foreclosure.
2d. That the mortgage has been extinguished by merger in the legal estate.
[493]*4938d. That the original mortgagee was in possession over twenty years, and there is no offer to account in the bill and no showing that upon such accounting anything would be due on the mortgage.
4th. That the possession of the mortgagee for more than fifteen years extinguished the equity of redemption and vested the title absolutely in the mortgagee.
5th. That the right acquired by the petitioner by virtue of the assignment of the mortgage to him is barred by the statute of limitations.
In support of the first claim it is said that the petition describes the mortgage by virtue of which the plaintiff claims title as merely conveying the light, title and interest of John K. Goodman in the land described, of which he was then seized and possessed, without showing what that interest was.
In making this claim the respondents overlook an important allegation which immediately follows, defining the interest conveyed as “one undivided fifth part” of the premises described. The conveyance is absolute of a fifth part and presumably conveys a fee. The phrase “ all my right, title and interest” applies only to the entire property, and might have been omitted, leaving the words of conveyance to apply directly and immediately to the fifth part, and the meaning would have been the same. And besides, the instrument of conveyance is referred to in the petition and described as “ a good and valid mortgage deed, with the usual covenants of warranty and seizin.”
The next question is, whether there was a merger of the legal and equitable titles in Abigail Goodman which extinguished the mortgage.
It appears that both titles vested in Abigail, the mortgagee, and if nothing more was shown we should presume a merger. But courts of equity will always keep the estates separate and uphold the mortgage, when it is required by the justice of the case or the intent of the parties. Stanton v. Thompson, 49 N. Hamp., 272; Bell v. Woodward, 34 N. Hamp., 90; Lockwood v. Sturdevant, 6 Conn., 373; Donalds v. Plumb, 8 Conn., 447; Bassett v. Mason, 18 Conn., 131; Mallory v. Hitchcock, [494]*49429 Conn., 250; Delaware § Hudson Canal Co. v. Bonnell, 46 Conn., 10.
In the case at bar a merger should be prevented because both the justice of the case and the intention of the mortgagee alike require it. The petitioner purchased the mortgage for a valuable consideration from the mortgagee herself, while the respondents are merely recipients of her bounty, taking the remainder of the estate by her will, and holding it, as the petition avers, “ subject to the mortgage.” Their position in equity can be no better than that of their devisor, and it must be inferior to that of the petitioner.
In addition to the justice of the case the facts alleged in the petition furnish the most cogent evidence that the mortgagee’s intention was to keep the estates separate.. She not only severed the two titles, but put them as wide asunder as possible; devising the fee to the respondents, and selling and conveying the mortgage to the petitioner.
But the respondents insist that the merger was complete the instant the two estates vested in Abigail, and that evidence of her intention to prevent a merger, to be effectual, must be contemporaneous with the union of the two estates. This proposition is neither supported by good reason nor by good authorities.
In James v. Morey, 2 Cowen, 248, the fee and the mortgage interest united in one Wattles, a mortgagee, who soon after verbally declared himself to be the absolute owner, and then after the lapse of several months sold his interest in the mortgage, and yet the last mentioned act as evidencing his intention prevailed to prevent a merger. Woodworth, J., in giving the opinion, said:—“Until he made a disposition of the property and until some person acquired an interest, he was at perfect liberty to consider the mortgage merged or not as might be most beneficial. If the question is to be decided by intent, express or implied, when does it become fixed and unchangeable? Certainly not until some one acquires an interest, and thereby obtains a right to. draw it in question. It would be novel in principle, and I apprehend without precedent in any book of authority, that a stranger should [495]*495urge—You once declared the mortgage was merged, and although at the time it was indifferent to all the world in what manner you treated it, you are bound by that election.”
In Forbes v. Moffat, 18 Ves. Jun., 389, the acts of the party were considered and examined for a series of years, and up to the time of his death, a period of ten years, for some conclusive evidence of intention, but not finding these acts and declarations decisive, the case finally turned on the legal presumption of his intention that the charge should not merge because it was for his interest that it should not.
The only authority that we can find which seems at all to support the claim of the respondents is a passing remark of the Chancellor in giving the opinion in Starr v. Ellis, 6 John. Ch., 393, that “unless some beneficial interest be shown to require the charge to be kept up, or the intention to keep up the charge be immediately and duly declared, it shall merge.” But in James v. Morey, supra, in a very able and exhaustive review of the authorities this is shown not to be good law. The question of merger was not carefully considered, as it was not necessary. The case turned on the fact that it was a fraudulent assignment from a father to his son. Sutherland, J., on pages 306-7, says:—“To establish the rule that the intention of the party shall be immediately declared or the law shall declare it for him, would be virtually to take from him the privilege of election. How is he to make his intention known except by his acts in relation to the property which is the subject of the charge ? Is not a reasonable time then to be allowed him ? Is he to be compelled immediately to assign the charge if he intends to keep it distinct ? or to sell the fee if he intends the charge shall merge ? If the law gives’him the privilege of election, it will give him a reasonable time within which to make it. This appears to me to be the good sense of the rule, and it is clearly sanctioned by the authorities to which I have adverted, particularly by the case of Forbes v. Moffatt.”
■ It being clear that there was no merger, it becomes unnecessary to consider the question of estoppel, which was discussed by counsel in this connection.
[496]*496The third objection, that the petition contains no offer to account for rents and profits while the mortgagee was in possession, and does not show that on the accounting any thing would be due on the mortgage, is sufficiently answered, as a question of pleading, by the averment “that the mortgage note has never been paid, but is still due, with the interest thereon.”
The fourth objection, that the possession by the mortgagee for more than fifteen years extinguished the equity of redemption, is founded on the case of Haskell v. Bailey et al., 22 Conn., 569, in which it was held that where the mortgagor remains in possession over fifteen years without payment or any act recognizing the existence of the mortgage, the mortgagee or his representatives cannot sue for foreclosure.”
But in the case at bar it was the mortgagee that was in possession, and no statute ran against her; the statute was in her favor, and she might have used it as against the mortgagor in order to complete or fortify her title; but she had an election to treat her title either as a fee or as a mortgage with an equity of redemption still subsisting. And, as we have seen, she did elect to keep the mortgage alive, recognized its continued existence, and sold it to the petitioner; and having done so, neither she nor her representatives, the respondents, can set up any bar against the petitioner’s right of entry and foreclosure founded on her possession prior to the time the mortgage was assigned to him. And this brings us to the only remaining question.
Has the petitioner’s right of entry and foreclosure, since the same were acquired, become barred by statute ?
The mortgage is alleged to have been transferred to him June 3d, 1863. The fifteen years limitation (Gen. Statutes, p. 493, sec. 1,) would not expire until June 3d, 1878. The petition bears date May 30th, 1878, and on that day an order of notice to one of the respondents, Elizabeth G. Kingsbury, residing in Paris, Prance, was made by the clerk of the Superior Court, directing that notice be given her by depositing a copy of the petition, citation and order in the post-office, directed to her, on or before the 1st day of June, 1878, which [497]*497order was complied with as appears by the return of the constable.
It is clear therefore that the petitioner is not barred from proceeding against Elizabeth G. Kingsbury, to whom the fee of the land mortgaged was devised.
The question as to the other respondent is not so clear. The constable’s return shows that service was made on Henry Keney, trustee for Albert W. Goodwin, to whom the life estate was devised, July 8th, 1878, which was after the fifteen years had expired. By the strict rules of limitation that obtain in courts of law this would be a bar, as to proceeding against the last mentioned respondent, and such will be the result here unless the facts that the petitioner had moved in the matter within the fifteen years, and had actually commenced his legal proceedings to the extent mentioned, will prevent the bar in equity.
As this question was not particularly discussed, and has. become of no practical importance in the present case, wn prefer to leave it an open question for future consideration should it hereafter arise in any other case. During the argument it was conceded by counsel that since the decision in the court below, Goodwin, to whom the life estate was devised, has deceased; so that as to him there is no longer any equity to be foreclosed, and the entire estate, subject to the mortgage, has become vested in the other respondent.
There was error in the judgment complained of as to the respondent Elizabeth G. Kingsbury, and it is reversed.
In this opinion the other judges concurred,