Van Nest v. Latson , 19 Barb. 604 ( 1855 )

By the Court,

Clerke, J.

I. Tallmadge, the mortgagor, having sold the premises in question to the defendant Latson, and the latter having assumed the payment of the mortgage, there is no reason why the former should be made a party to this action, which is brought to foreclose the equity of Latson and his wife, and to enforce any deficiency, which may remain, from Latson alone. The court can make a complete determination on these points without reference to Tallmadge. If there should be any equities between him and Latson, they must be settled between them in another suit. Tallmadge is not, therefore, a necessary party to this action.

[New York General Term. April 9, 1855.

Mitchell, Roosevelt and Clerke, Justices.]

II. It is evident from the whole conduct of the parties, both before and subsequent to the agreement between them, and the deed of the 13th February, 1851, that they never intended that the conveyance should operate as a merger of the mortgage. And without such intent, express or implied, it will not be presumed ; and certainly, in cases like this where we think it was contrary to such intent, it would be a manifest departure from all the principles which have guided courts of equity on this subject, to entertain the idea, for a moment, of applying the technical doctrine of merger.

The judgment of the special term should be affirmed with costs.