Worden, J.
Complaint by the appellant against the appellees, to redeem certain mortgaged premises.
The substantial facts set up in the complaint, are, that in October, 1853, Cornelia M. Baker, being then the owner of the premises in question, with her husband, Charles F. Baker, mortgaged the same to one Martha J. Fish, to secure the payment of three notes—one for 100 dollars, one for 44 dollars, 62 cents, and one for 55 dollars, 38 cents; that afterwards, said Martha assigned the note for 100 dollars, and the mortgage, to Otis Neivton, who, on the 12th of September, 1854, assigned the note and mortgage to the plaintiff; that the other two notes are owned by Morse, and Morse and Woodruff, who are made defendants; that [216]*216the mortgage above mentioned is subject to a prior mortgage executed by said Martha T. Fish, and her husband, Charles F. Fish (she then being the owner of the property), to one Samuel Bartlett, to secure the payment of 200 dollars, which last-mentioned mortgage was executed in March, 1853, and was assigned by Bartlett to Hubbarcl. Prayer, that plaintiffs be permitted to redeem the senior mortgage, and for other relief.
The defendants answered, setting up—
First. That at the commencement of the suit, Woodruff was the owner in fee of the premises; that the mortgage executed by Fish and wife to Bcurtlett, and by him assigned to Hubbard, was foreclosed by Hubbard, by advertisement and sale pursuant to a power of sale contained in the mortgage, and at such sale Woodruff bid off the premises and became the purchaser.
Second. That said Cornelia Baker fully paid and satisfied said note of 100 dollars to Newton, while he was the owner thereof.
Third. That after such sale and purchase by Woodruff, Cornelia, and her husband, conveyed the premises to the plaintiff by deed, which is the plaintiff’s only title to the premises.
Fourth. That the plaintiff acted as the agent of said Cornelia Baker, in the payment of the note to Newton, and after such payment, he caused to be made an assignment of the note and mortgage by Newton to himself; but that such assignment conveyed no interest to the plaintiff; that Fmery Morse and Morse and Woodruff are the owners of the other notes secured by the mortgage, and the defendants are willing, and offer to pay whatever may be due thereon.
For replication, the plaintiff denies the matters set up in the answer, except so far as they admit the matter charged in the complaint. For all the purposes of the suit, the plaintiff admits the validity of the sale set up, to Woodruff, and he raises no question, except as to his right to redeem the premises, reserving his right to contest the validity of such sale in another suit.
[217]*217Trial by the Court, finding and judgment for the defendants, a motion for a new trial being overruled.
It appears by the evidence, which is set out in the bill of exceptions, that, on the 15th of March, 1854, Baker and wife executed to the plaintiff a mortgage on the premises in question, to secure the payment of a note for 306 dollars, given by Baker to the plaintiff. The mortgage executed by Fish and wife to Bartlett, was dated March 28, 1853; and the sale, under the power therein contained, was made on the 31st of December, 1853. Between the date of the Bartlett mortgage, and the sale under it, viz., on the 14th of October, 1853, the mortgage by Baker and wife to Fish was executed, which, together with the note for 100 dollars, came to the plaintiff by assignment.
Mrs. Baker furnished to the plaintiff the money paid to Newton, to procure the assignment of the note and mortgage to the plaintiff;’ but from the evidence, it appears to have been the intention of the plaintiff and Mrs. Baker, not thereby to cancel or extinguish the note or the mortgage, but to place the plaintiff in a position to redeem the senior mortgage, and in that manner realize as much of the note for 306 dollars, secured by mortgage on the same premises, as possible.
"We are of opinion, that, although the fee in the premises might have been in Mrs. Baker, and although she furnished to the plaintiff the money with which to procure an assignment of the note, by Newton to the plaintiff, yet such payment to Newton, with the money thus furnished, did not necessarily cancel or extinguish the note, or the mortgage, so far as it was a security for the payment of the note. The transaction, on its face, did not purport to be a payment and extinguishment of the note or mortgage, as they were both duly assigned to the plaintiff. The general rule of law is, that where the mortgage and the fee vest in the same person, and in the same right, the mortgage is merged in the fee simple. But, notwithstanding this technical rule of law, it is well settled that a Court of equity will keep an incumbrance alive, or consider it extinguished, as will best subserve the purposes of [218]*218justice, and the actual and just intention of the party. Forbes v. Moffatt, 18 Ves. 384.— Gardner v. Astor, 3 Johns. Ch. 53.—Starr v. Ellis, 6 id. 393.—Hatch v. Kimball, 16 Maine R. 146.—Holden v. Pike, 24 id. 427.
In Hatch v. Kimball, it is said, that “It is, in each case, a question of intention whether or not there is an extinguishment of the charge upon the estate. If at the time the mortgage is taken in, the intention to extinguish it appears, that is decisive. If it does not, equity presumes it to be outstanding or extinguished, as the interest of the party may require.” Vide, also, Clift v. White, 2 Kernan, 519.
In the case at bar, it not only appears to have been the intention of the jrarties to keep the mortgage alive, so far as the note for 100 dollars is secured thereby, but it was evidently for the interest of Mrs. Baker that it should be so kept alive. Pier equity of redemption had been cut off, by a sale of the property, and if a transfer of the note and mortgage by Newton to the plaintiff, would enable the plaintiff to make not only that note, but all or a part of the note for 306 dollars, which he held against Baker, out of the property, it would so far pay a debt which would otherwise devolve a personal liability upon her husband. "We think that, under the circumstances, all hough Mrs. Baker furnished the money that procured the assignment of the note and mortgage to the plaintiff, the transfer to him is valid, and vests in him the same right which Newton held before the assignment.
What is the effect of the sale to Woodruff, so far as the interests of the plaintiff are concerned ? This must be determined by the provisions of the statutes of 1843, under which the sale was made. By § 58, R. S. 1843, p. 464, it is provided that “No mortgagee of the same premises, or any part thereof, whose .title accrued prior to such sale, &c., shall be prejudiced by any such sale, nor shall their rights or interests be, in any way, affected thereby.”
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Worden, J.
Complaint by the appellant against the appellees, to redeem certain mortgaged premises.
The substantial facts set up in the complaint, are, that in October, 1853, Cornelia M. Baker, being then the owner of the premises in question, with her husband, Charles F. Baker, mortgaged the same to one Martha J. Fish, to secure the payment of three notes—one for 100 dollars, one for 44 dollars, 62 cents, and one for 55 dollars, 38 cents; that afterwards, said Martha assigned the note for 100 dollars, and the mortgage, to Otis Neivton, who, on the 12th of September, 1854, assigned the note and mortgage to the plaintiff; that the other two notes are owned by Morse, and Morse and Woodruff, who are made defendants; that [216]*216the mortgage above mentioned is subject to a prior mortgage executed by said Martha T. Fish, and her husband, Charles F. Fish (she then being the owner of the property), to one Samuel Bartlett, to secure the payment of 200 dollars, which last-mentioned mortgage was executed in March, 1853, and was assigned by Bartlett to Hubbarcl. Prayer, that plaintiffs be permitted to redeem the senior mortgage, and for other relief.
The defendants answered, setting up—
First. That at the commencement of the suit, Woodruff was the owner in fee of the premises; that the mortgage executed by Fish and wife to Bcurtlett, and by him assigned to Hubbard, was foreclosed by Hubbard, by advertisement and sale pursuant to a power of sale contained in the mortgage, and at such sale Woodruff bid off the premises and became the purchaser.
Second. That said Cornelia Baker fully paid and satisfied said note of 100 dollars to Newton, while he was the owner thereof.
Third. That after such sale and purchase by Woodruff, Cornelia, and her husband, conveyed the premises to the plaintiff by deed, which is the plaintiff’s only title to the premises.
Fourth. That the plaintiff acted as the agent of said Cornelia Baker, in the payment of the note to Newton, and after such payment, he caused to be made an assignment of the note and mortgage by Newton to himself; but that such assignment conveyed no interest to the plaintiff; that Fmery Morse and Morse and Woodruff are the owners of the other notes secured by the mortgage, and the defendants are willing, and offer to pay whatever may be due thereon.
For replication, the plaintiff denies the matters set up in the answer, except so far as they admit the matter charged in the complaint. For all the purposes of the suit, the plaintiff admits the validity of the sale set up, to Woodruff, and he raises no question, except as to his right to redeem the premises, reserving his right to contest the validity of such sale in another suit.
[217]*217Trial by the Court, finding and judgment for the defendants, a motion for a new trial being overruled.
It appears by the evidence, which is set out in the bill of exceptions, that, on the 15th of March, 1854, Baker and wife executed to the plaintiff a mortgage on the premises in question, to secure the payment of a note for 306 dollars, given by Baker to the plaintiff. The mortgage executed by Fish and wife to Bartlett, was dated March 28, 1853; and the sale, under the power therein contained, was made on the 31st of December, 1853. Between the date of the Bartlett mortgage, and the sale under it, viz., on the 14th of October, 1853, the mortgage by Baker and wife to Fish was executed, which, together with the note for 100 dollars, came to the plaintiff by assignment.
Mrs. Baker furnished to the plaintiff the money paid to Newton, to procure the assignment of the note and mortgage to the plaintiff;’ but from the evidence, it appears to have been the intention of the plaintiff and Mrs. Baker, not thereby to cancel or extinguish the note or the mortgage, but to place the plaintiff in a position to redeem the senior mortgage, and in that manner realize as much of the note for 306 dollars, secured by mortgage on the same premises, as possible.
"We are of opinion, that, although the fee in the premises might have been in Mrs. Baker, and although she furnished to the plaintiff the money with which to procure an assignment of the note, by Newton to the plaintiff, yet such payment to Newton, with the money thus furnished, did not necessarily cancel or extinguish the note, or the mortgage, so far as it was a security for the payment of the note. The transaction, on its face, did not purport to be a payment and extinguishment of the note or mortgage, as they were both duly assigned to the plaintiff. The general rule of law is, that where the mortgage and the fee vest in the same person, and in the same right, the mortgage is merged in the fee simple. But, notwithstanding this technical rule of law, it is well settled that a Court of equity will keep an incumbrance alive, or consider it extinguished, as will best subserve the purposes of [218]*218justice, and the actual and just intention of the party. Forbes v. Moffatt, 18 Ves. 384.— Gardner v. Astor, 3 Johns. Ch. 53.—Starr v. Ellis, 6 id. 393.—Hatch v. Kimball, 16 Maine R. 146.—Holden v. Pike, 24 id. 427.
In Hatch v. Kimball, it is said, that “It is, in each case, a question of intention whether or not there is an extinguishment of the charge upon the estate. If at the time the mortgage is taken in, the intention to extinguish it appears, that is decisive. If it does not, equity presumes it to be outstanding or extinguished, as the interest of the party may require.” Vide, also, Clift v. White, 2 Kernan, 519.
In the case at bar, it not only appears to have been the intention of the jrarties to keep the mortgage alive, so far as the note for 100 dollars is secured thereby, but it was evidently for the interest of Mrs. Baker that it should be so kept alive. Pier equity of redemption had been cut off, by a sale of the property, and if a transfer of the note and mortgage by Newton to the plaintiff, would enable the plaintiff to make not only that note, but all or a part of the note for 306 dollars, which he held against Baker, out of the property, it would so far pay a debt which would otherwise devolve a personal liability upon her husband. "We think that, under the circumstances, all hough Mrs. Baker furnished the money that procured the assignment of the note and mortgage to the plaintiff, the transfer to him is valid, and vests in him the same right which Newton held before the assignment.
What is the effect of the sale to Woodruff, so far as the interests of the plaintiff are concerned ? This must be determined by the provisions of the statutes of 1843, under which the sale was made. By § 58, R. S. 1843, p. 464, it is provided that “No mortgagee of the same premises, or any part thereof, whose .title accrued prior to such sale, &c., shall be prejudiced by any such sale, nor shall their rights or interests be, in any way, affected thereby.”
The plaintiff, holding a mortgage which accrued before the sale, was not in any manner prejudiced thereby, nor were his rights as such holder in any manner affected by [219]*219the sale. So far as his rights under the mortgage thus assigned to him are concerned, the case stands as if no sale had been made. To protect himself and secure his own claim, he has a right to redeem the prior mortgage. Whether or not his right to redeem could be defeated by a payment or tender to him of the amount due on the note and mortgage thus assigned to him, so as to cut off his claim on the subsequent note and mortgage for 306 dollars, executed after the sale, is a question that has not been argued by counsel, and one which we do not decide. But the plaintiff, holding a note and mortgage executed before the sale, and the sale not, in any manner, affecting his rights, so far as that note and mortgage are concerned, he has a right, for the purpose of securing the benefit of his mortgage, to redeem the prior incumbrance. If a payment or tender of what may be due on the mortgage thus held by assignment, would defeat the plaintiff’s right to redeem, no such tender or offer of payment is made. The offer to pay, contained in the pleading of the defendants, is confined to the other two notes secured by the mortgage, and in the hands of some .of the defendants.
J. B. Howe, for the appellant (1).
J. M. Flagg and O. H. Smith, for the appellees (2).
We are of opinion, that upon the law and the facts in the case, the plaintiff- was entitled to relief, and that a new trial should have been granted.
Per Curiam.
The judgment is reversed with costs. Cause remanded for a new trial.