[418]*418The opinion of the Court was delivered by
Kennedy, J. —
George Helmbold being the owner in fee of a tract or parcel of land, situate in Montgomery County, on the first day of April, a. d. 1811, mortgaged the same to Paul Jones, in fee, to secure the payment of a debt of three thousand dollars, owing by him to Jones; and on the following day mortgaged the same land again to Elizabeth Helmbold, the plaintiff in error, who was the defendant below, in like manner to secure the payment of a debt owing to her. The debt owing to Paul Jones, not being paid, he sued a scire facias upon his mortgage, out of the Common Pleas of Montgomery County, to May term, 1819, in which he obtained judgment, the nineteenth day of July, in the same year; awarding execution in his favour for the amount of his debt against the land. Accordingly a writ of levari facias was issued thereon, returnable to the following November term, which was returned by the sheriff tarde venit. No further proceeding being had therein, Paul Jones, on the 16th of February, 1820, assigned his mortgage and the judgment had thereon, to Daniel Man, the defendant in error, and plaintiff below; who, subsequent^, on the 30th of August, 1823, became the purchaser of the equity of redemption in the land, from Thomas Gilpin, who had acquired it by an assignment from George Helmbold and his wife, made to him on the 16th of October, 1818, in trust for the benefit of the creditors of the said George. On the 18th of November, 1823, Daniel Man (having then, as stated above, become the owner of the mortgage to Paul Jones, and the equity of redemption, which remained in George Helmbold, after giving the two mortgages, the second to the plaintiff in error, still remaining unpaid and in full force,) sold, and by his deed conveyed the land, embraced by the mortgages, in fee, with covenant of special warranty to Margaret Plelmbold, for the consideration of thirteen thousand dollars, therein mentioned; which was secured to be paid by mortgage upon the land and thirteen bonds, making the amount payable by annual instalments of' one thousand dollars each, all bearing date the same day. In connection with the deed conveying the land by Man to Margaret Helmbold, the parol evidence of George Helmbold, was given on the part of the plaintiff below. George Helmbold testified that he, as the agent of Margaret Plelmbold, made the agreement on her behalf, for the purchase of the land; that Man refused to sell unless the mortgage assigned to him by Jones, were permitted to remain a lien upon the land; that the advice of a professional gentleman was taken, in order to know what the effect of Man’s selling and conveying the land in fee to Margaret Plelmbold, would be upon his mortgage — whether it would extinguish or discharge the lien of it from the land; that they were advised, it would not destroy or affect it in any way ; that it would notwithstanding still continue to bind the land; that thereupon the contract for the purchase was [419]*419concluded; and for the purpose of having it carried into execution, the same professional gentleman was employed to draw the deed of conveyance, transferring the land, as also the mortgage and bonds, for securing the .payment of the purchase money; and that he accordingly did so. That the three thousand dollars in the Jones mortgage were included in the thirteen thousand dollars, as forming part of the consideration to be paid by Margaret Helmbold to Daniel Man for the land. That Margaret Helmbold was informed by the witness, that Man would, not sell the land to her unless the mortgage assigned to him by Jones, were permitted to remain a lien upon it ; and if she took the land she would have to take it subject to such lien. To this she made no objection; nor did she ever pay any part of the mortgage or consideration money for the land.
After this, under a judicial proceeding had upon the mortgage of the plaintiff in error, the land was sold, in January, 1830, by the sheriff to her, for the sum of twenty-six hundred dollars, subject, however, to whatever the land might be then bound for, by the mortgage given to Paul Jones. Parol evidence was also given by the plaintiff below, showing that the land, at the time of this sale to the defendant below, was worth between six and seven thousand dollars. The conditions of the sheriff’s sale were also given in evidence, and the agreement of the purchaser, to take the land under it, subject to the Jones mortgage, in case it should be a lien; thereon, and to whatever sum of money might be due upon it. The defendant below, by her counsel, objected to the parol evidence on the part of the plaintiff there being received; and after it was ruled admissible by the Court, excepted to the opinion of the Court in this respect, as also the charge of the Court delivered to the jury.
The questions raised by the errors assigned, are, 1st, Was the parol evidence, and the mortgage and bonds, which were also read in evidence, after being objected to, from Margaret Helmbold to the defendant in error, admissible ? 2nd, Did the deed of conveyance from Thomas Gilpin to Daniel Man, under the particular circumstances attending the case, merge or extinguish the mortgage, which the latter held at that time, by assignment from Paul Jones'! 3rd, Did the deed of conveyance from Daniel Man to Margaret Helmbold, discharge the lien of said mortgage upon the land; or show that he did not intend to keep it on foot when he became the owner of the land, or estop him from claiming under it? And 4th, Supposing the Court below to have answered these three questions correctly, by responding to the first in the ’affirmative, and the two last in the negative, did the lien of the mortgage expire, because it was not revived by scire facias, within five years from July term, 1819, when the judgment was first obtained upon it, authorising the issuing of a writ of levari facias, to sell the land for the purpose of obtaining the mortgage debt ?
As to the first question, the parol evidence first objected to, was [420]*420offered for the purpose of showing that the value of the land, at the time it was sold by the sheriff to the plaintiff in error, by virtue-of a writ of levari facias, sued out by her upon a judgment, which she had obtained in a scire facias upon her mortgage from George Helmbold, was worth the amount of the debts mentioned in both mortgages given by him. This evidence cannot well be considered altogether irrelevant, as has been contended by the plaintiff in error, nor yet going to vary, contradict or alter any written evidence on the subject concluding the parties. It was perfectly consistent with the conditions of the sheriff’s sale of the land, and with the deed of conveyance made in pursuance thereof. By them it -appears that the plaintiff in.error expressly agreed to take the land at the price bidden for it by her agent, subject to the payment of whatever might be due upon the Jones mortgage, if it were then a lien upon the land ; and as the parol evidence tended to prove that the land wms equal in value to the amount of the moneys claimed on both mortgages, it went not only to corroborate and sustain the agreement made by the plaintiff' in error, for the purchase of the land, but also to affect her conscience, and to show that she ought not, either in law or equity, to be permitted to hold the land discharged from the payment of the money due on the Jones mortgage, if it were a lien upon the land, at the time she bought.
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[418]*418The opinion of the Court was delivered by
Kennedy, J. —
George Helmbold being the owner in fee of a tract or parcel of land, situate in Montgomery County, on the first day of April, a. d. 1811, mortgaged the same to Paul Jones, in fee, to secure the payment of a debt of three thousand dollars, owing by him to Jones; and on the following day mortgaged the same land again to Elizabeth Helmbold, the plaintiff in error, who was the defendant below, in like manner to secure the payment of a debt owing to her. The debt owing to Paul Jones, not being paid, he sued a scire facias upon his mortgage, out of the Common Pleas of Montgomery County, to May term, 1819, in which he obtained judgment, the nineteenth day of July, in the same year; awarding execution in his favour for the amount of his debt against the land. Accordingly a writ of levari facias was issued thereon, returnable to the following November term, which was returned by the sheriff tarde venit. No further proceeding being had therein, Paul Jones, on the 16th of February, 1820, assigned his mortgage and the judgment had thereon, to Daniel Man, the defendant in error, and plaintiff below; who, subsequent^, on the 30th of August, 1823, became the purchaser of the equity of redemption in the land, from Thomas Gilpin, who had acquired it by an assignment from George Helmbold and his wife, made to him on the 16th of October, 1818, in trust for the benefit of the creditors of the said George. On the 18th of November, 1823, Daniel Man (having then, as stated above, become the owner of the mortgage to Paul Jones, and the equity of redemption, which remained in George Helmbold, after giving the two mortgages, the second to the plaintiff in error, still remaining unpaid and in full force,) sold, and by his deed conveyed the land, embraced by the mortgages, in fee, with covenant of special warranty to Margaret Plelmbold, for the consideration of thirteen thousand dollars, therein mentioned; which was secured to be paid by mortgage upon the land and thirteen bonds, making the amount payable by annual instalments of' one thousand dollars each, all bearing date the same day. In connection with the deed conveying the land by Man to Margaret Helmbold, the parol evidence of George Helmbold, was given on the part of the plaintiff below. George Helmbold testified that he, as the agent of Margaret Plelmbold, made the agreement on her behalf, for the purchase of the land; that Man refused to sell unless the mortgage assigned to him by Jones, were permitted to remain a lien upon the land; that the advice of a professional gentleman was taken, in order to know what the effect of Man’s selling and conveying the land in fee to Margaret Plelmbold, would be upon his mortgage — whether it would extinguish or discharge the lien of it from the land; that they were advised, it would not destroy or affect it in any way ; that it would notwithstanding still continue to bind the land; that thereupon the contract for the purchase was [419]*419concluded; and for the purpose of having it carried into execution, the same professional gentleman was employed to draw the deed of conveyance, transferring the land, as also the mortgage and bonds, for securing the .payment of the purchase money; and that he accordingly did so. That the three thousand dollars in the Jones mortgage were included in the thirteen thousand dollars, as forming part of the consideration to be paid by Margaret Helmbold to Daniel Man for the land. That Margaret Helmbold was informed by the witness, that Man would, not sell the land to her unless the mortgage assigned to him by Jones, were permitted to remain a lien upon it ; and if she took the land she would have to take it subject to such lien. To this she made no objection; nor did she ever pay any part of the mortgage or consideration money for the land.
After this, under a judicial proceeding had upon the mortgage of the plaintiff in error, the land was sold, in January, 1830, by the sheriff to her, for the sum of twenty-six hundred dollars, subject, however, to whatever the land might be then bound for, by the mortgage given to Paul Jones. Parol evidence was also given by the plaintiff below, showing that the land, at the time of this sale to the defendant below, was worth between six and seven thousand dollars. The conditions of the sheriff’s sale were also given in evidence, and the agreement of the purchaser, to take the land under it, subject to the Jones mortgage, in case it should be a lien; thereon, and to whatever sum of money might be due upon it. The defendant below, by her counsel, objected to the parol evidence on the part of the plaintiff there being received; and after it was ruled admissible by the Court, excepted to the opinion of the Court in this respect, as also the charge of the Court delivered to the jury.
The questions raised by the errors assigned, are, 1st, Was the parol evidence, and the mortgage and bonds, which were also read in evidence, after being objected to, from Margaret Helmbold to the defendant in error, admissible ? 2nd, Did the deed of conveyance from Thomas Gilpin to Daniel Man, under the particular circumstances attending the case, merge or extinguish the mortgage, which the latter held at that time, by assignment from Paul Jones'! 3rd, Did the deed of conveyance from Daniel Man to Margaret Helmbold, discharge the lien of said mortgage upon the land; or show that he did not intend to keep it on foot when he became the owner of the land, or estop him from claiming under it? And 4th, Supposing the Court below to have answered these three questions correctly, by responding to the first in the ’affirmative, and the two last in the negative, did the lien of the mortgage expire, because it was not revived by scire facias, within five years from July term, 1819, when the judgment was first obtained upon it, authorising the issuing of a writ of levari facias, to sell the land for the purpose of obtaining the mortgage debt ?
As to the first question, the parol evidence first objected to, was [420]*420offered for the purpose of showing that the value of the land, at the time it was sold by the sheriff to the plaintiff in error, by virtue-of a writ of levari facias, sued out by her upon a judgment, which she had obtained in a scire facias upon her mortgage from George Helmbold, was worth the amount of the debts mentioned in both mortgages given by him. This evidence cannot well be considered altogether irrelevant, as has been contended by the plaintiff in error, nor yet going to vary, contradict or alter any written evidence on the subject concluding the parties. It was perfectly consistent with the conditions of the sheriff’s sale of the land, and with the deed of conveyance made in pursuance thereof. By them it -appears that the plaintiff in.error expressly agreed to take the land at the price bidden for it by her agent, subject to the payment of whatever might be due upon the Jones mortgage, if it were then a lien upon the land ; and as the parol evidence tended to prove that the land wms equal in value to the amount of the moneys claimed on both mortgages, it went not only to corroborate and sustain the agreement made by the plaintiff' in error, for the purchase of the land, but also to affect her conscience, and to show that she ought not, either in law or equity, to be permitted to hold the land discharged from the payment of the money due on the Jones mortgage, if it were a lien upon the land, at the time she bought.
The next parol evidence received, that was objected to by the plaintiff in error, was the testimony of George Helmbold. According to it, he as the agent for Margaret Helmbold, contracted with Daniel Man for the purchase of the land; that Daniel Man refused to sell, when in treaty for the sale, unless the Jones mortgage were secured, or permitted to remain a lien upon the land. That advice was taken of a professional gentleman, to know whether Man’s selling and conveying the land to Margaret Helmbold, would have the effect of discharging the lien of that mortgage, who said it would not; and upon this the agreement for the purchase was concluded ; and the same professional gentleman was employed to draw the deed of conveyance transferring the land; and the mortgage and bonds securing the payment of the purchase-money, which he accordingly did. They were all executed afterwards, when the witness was not present. But Margaret Helmbold was fully apprised before this execution, that the Jones mortgage was to remain a lien upon the land,, until the purchase-money should be paid by her to Man, which would have satisfied it too, as it was understood to be included in the thirteen thousand dollars, the amount of the consideration money agreed to be paid by her. It is contended that this evidence ought not to have been received, because it was inconsistent with the import and effect of the deed of conveyance from Man to Margaret Helmbold. But certainly it is not more so than the deed of a grantor, who to secure the repayment of money borrowed by him, conveys his land by deed absolutely in fee, sub[421]*421ject, however, to a parol agreement, that he shall retain in himself the equity of redemption. This. he may do according to the decision of this Court in Kunkle v. Wolfersberger, (6 Watts, 126.) Iiere the grantor conveyed the land subject to the right, which he claimed to have, of using his mortgage thereafter, if it should become necessary in order to protect him against the claim of the plaintiff in error, under her mortgage. Or if this view of the matter should seem to be repugnant to the analogy of the law in any respect, Daniel Man, in order to give effect to the agreement and intention of the parties, may be considered as having conveyed his right to the Jones mortgage, and the equity of redemption to Margaret Helm-bold, to hold them in the same manner as he held them himself, and she, by the execution of the mortgage to him, as having reconveyed the right to the Jones mortgage, so that the right to this mortgage, and the lien of it should still continue to exist and be used by him, whenever it might be for his advantage to do so. Under this view, the objection that the parol evidence admitted, had a tendency to change or alter the import and legal effect of the deed of conveyance from Man to Margaret Helmbold, is completely removed; and the mutual deeds executed by the parties respectively, forming, constituent parts of one and the same arrangement between them, may be regarded as sufficient in law as well as in equity, to have this operation and effect, without uniting the two interests, so as to merge the one in the other, and render them forever thereafter inseperable for any purpose whatever, contrary to the agreement of the parties. The rule of law in this respect, comports with equity and the plain principles of common sense, that all instruments of writing shall be so construed, if susceptible of it, as best to effectuate the intention of the parties, and not to overturn or defeat it.
The second question presents itself next; did the deed of conveyance, from Thomas Gilpin to Daniel Man, under the particular circumstances attending the case, merge or extinguish the mortgage, which the latter held at that time, by assignment from Paul Jones'! There have doubtless been cases where a merger has been held to take place against the intention of the parties; as where a lease for years, and a remainder for life, were limited to the same person by the same deed, it was determined that the estate for years, should merge in the estate for life. 1 Inst. 54, b. Uthen v. Godfrey, in note to Dyer, 309, b. Clark v. Sir John Sydenham, (Yelv. 85.) Preston on Merger, 44. Although it would seem from these authorities, that the intention does not always determine whether there shall be or has been a merger or not; and that it may take place in some instances without any regard, or even in opposition to the intention, yet as Sir William Grant, Master of the Rolls, says, in Forbes v. Moffat, (13 Ves. 390,) “it is very clear, that a person becoming entitled to an estate, subject to a charge for his own benefit, may, if he chooses, at once take the estate, and keep up the charge. [422]*422The question there is upon the intention, actual or presumed, of the person in whom the interests are unitedand whenever, as he further observes, as is the case in most instances, it is of no sort of use to the party himself to have a charge upon his own estate, it will be held to sink, unless something shall have been done to keep it on foot; yet in the absence of all evidence showing a manifest intention, either the one way or the other, if it appears most for his advantage to keep the charge alive, it will be presumed that he intended it should be so. This doctrine is sustained by the case of Dougherty v. Jack, (5 Watts, 457-8.) Then seeing there is no evidence here of any avowed or declared intention by Daniel Man, when he purchased the equity of redemption, and thus became the owner of both the legal and equitable estate, that he wished to keep the mortgage assigned to him by Jones, on foot thereafter, it becomes proper to examine and see whether it was indifferent to him, or was not for his advantage that the mortgage should be kept on.foot. It will soon be seen it was not a matter of indifference to him ; for haring bought the equity of redemption, subject to the mortgage of the plaintiff in error, which was posterior to his own, he could only protect himself in the enjoyment of the land under his own mortgage, by keeping it alive until he should' be paid the amount of it Unless he kept his mortgage on foot after he became the owner of the land by the purchase of the equity of redemption, he permitted the mortgage of the plaintiff in error to become the oldest incumbrance, and consequently could not claim to hold or enjoy the land without paying it off. And for aught that could be foreseen, something might have occurred thereafter to cause a great depression in the value of the land, so as to reduce it to a sum of money not exceeding the amount in his mortgage : in such event, by keeping his mortgage alive, he would be enabled either to receive.the amount of his mortgage, or otherwise to become the absolute owner of the land, discharged from all incumbrances, without paying any more money for it. But if his mortgage were to be considered as extinguished by his purchase of the equity of redemption, it is perfectly obvious that in the event of such depression in the value of the land, as has just been mentioned, he would lose the amount of the money mentioned in his mortgage, and the land too, unless he should choose to pay the mortgage of the plaintiff in error. It being thus seen to be for the advantage of the defendant in error, that his mortgage should be kept on foot, we must therefore presume that he intended it to be so. Upon such presumed intention, it was held in the case of Forbes v. Moffat, (18 Ves. 385,) that a mortgage, to answer it, and to benefit the personal representatives, was not extinguished by its being purchased by a person who had acquired the equity of redemption.
We come now to the third question; — Did the deed of conveyance from Daniel Man to Margaret Helmbold, discharge the lien of [423]*423his mortgage upon the land, or show that he did not intend to keep it alive, when he became the owner of the land ; or estop him from claiming under it ? His conveyance to Margaret Helmbold might probably have operated in either of those ways, or at least in either of the two first, were it not for the parol evidence which has been already noticed.. From this evidence it would appear, that it was not intended to operate as a discharge; nor to be taken as evidence, that he had at any time intended not to keep the mortgage on foot; or that he intended then to relinquish it. But this evidence, on the contrary, going to show that it was the understanding of the parties 'that the mortgage assigned by Jones to Man should be kept on foot, wre can perceive no good reason why it should be considered extinguished, contrary to the express intention in this respect; or why Man should be estopped from claiming under it against the plaintiff in error, who is neither party nor privy to the deed from Man to Margaret Helmbold. It is only by and between parties to a deed, or those claiming under them, that an estoppel can be set up, or any advantage derived therefrom ; and the plaintiff in error not being a party to this deed, or claiming under it in any way, is not bound, and cannot be estopped by it, and is therefore not entitled to claim any advantage from it,' upon the ground of estoppel.
It only remains now to notice the last question ; — Did the lien of the mortgage of the defendant in error expire, because the judgment in the scire facias thereon was not revived within five years thereafter, as liens arising from judgments are required to be, by the acts of assembly passed in that behalf, in order to continue them beyond that period! The judgment obtained in the sc ire facias, sued out upon the mortgage here, created no lien whatever upon the land. The lien was created by the mortgage itself; the judgment neither added to, nor took any thing from it; it is clear, therefore,.that the acts of assembly, which require judgments creating liens or binding lands or real estate, to be revived every period of five years, for the purpose of continuing such liens, do not extend to or embrace the liens of mortgages, and can have no application to or bearing upon them whatever. The lien of the mortgage, therefore, continued to exist in the present case as if no scire facias had been sued out and judgment obtained in it. The only effect of a judgment in such case, is to give the mortgagee an execution immediately, if he chooses, against the land mortgaged, and nothing else, that he may lev" the amount of his debt out of it, by a sale thereof. The scire facias, will also, if sued out within twenty years after the mortgage money shall have become payable, prevent the presumption of payment from arising, which without it would arise, unless repelled by other circumstances. The judgment is affirmed.
Judgment affirmed.