
    William Wade versus Charles Howard et al.
    
    Where the purchaser of an equity of redemption of land which is subject to two mortgages, pays and takes an assignment of the first mortgage, it seems, that he does not thereby acquire the rights of an assignee of the first mortgagee, but that (lie first mortgage is discharged.
    A purchased on execution the equity of redemption of land which was subject to two mortgages ; he then paid the first mortgage and took from the mortgagee a deed purporting to “ release, grant, bargain and sell ” the mortgagee’s interest in the land, and adding, “ the aforesaid sum having been this day paid me in discharge of said mortgage.” In a writ of entry by A against the second mortgagee to obtain possession of the land, it was held, that the deed to A was not an assignment, but a discharge of the first mortgage.
    Parol evidence is not admissible in such a case to show the intentions of A in receiving, or of the first mortgagee in giving such a deed
    This was a writ of entry on the demandant’s seisin within thirty years. Plea, non disseisivit, and issue thereon.
    At the trial, before Putnam J., the demandant, to maintain the issue on his part, offered a mortgage deed of the land, dated April 29, 1819, from Thomas Fry and Nathaniel Fry to John Gould, to secure 1500 dollars, and an assignment on the back of the mortgage from Gould to Justice Willard, dated February 8, 1825, and a deed from Willard to the demandant dated February 26, 1827, by which Willard, in consideration of 527 dollars and ten cents, paid by the demand-ant, did “ remise, release, grant, bargain, sell and forever quitclaim ” to the demandant, all his “ right, title, interest and estate of, in and to ” the demanded premises, “ being the same land which was mortgaged to John Gould by Thomas Fry and Nathaniel Fry by their deed dated the 29th of April,'A. D. 1819, and assigned by said Gould to me on the 8th day of February, A. D. 1825, together with the evidences of the sum remaining due on said mortgage; meaning hereby to release all the right I have in the premises by virtue, of said mortgage and assignment, the aforesaid sum having been this day paid me in discharge of said mortgage.” It was proved that Gould had entered on the demanded premises for condition broken, and that the right to redeem would have been foreclosed February 27, 1827, and that the demandant paid Willard the money due on the mortgage February 26, 1827, on which day Willard’s deed to him is dated.
    The tenants, Howard and Lathrop, offered in evidence a deed of Nathaniel Fry to Thomas Fry, dated March 12, 1821, of his interest in the demanded premises, a mortgage from Thomas Fry to Nathaniel of the same date to secure 1000 dollars, an assignment of this mortgage from Nathaniel Fry to Joseph and Elijah Bissel, and an assignment from them to the tenants. Thomas Fry gave possession to the tenants December 8, 1823. The tenants also produced a deed from David H. Merwin, a deputy sheriff, dated January 7, 1824, conveying to the demandant all Thomas Fry’s right to redeem the demanded premises, which had been taken and sold on execution ; and referred also to a bill in equity of the demandant against the tenants, pending at the time of the trial, which states the fact that the tenants had possession December 8, 1823.
    Willard held the premises as trustee for the tenants, they having furnished him with the money.
    It was proved by paroi evidence, that Wade wished Willard to assign the mortgage and moneys and evidences of the debt due thereon, to the end that Wade should stand in the place of Gould, and have the benefit of the foreclosing of the first mortgage, and so of excluding the claim of the tenants as assignees under the second mortgage. Parol evidence was offered to show that Willard objected to giving an assignment of the mortgage, and that he did not intend that his deed should operate as an assignment, but as a discharge of the first mortgage, and to save the right of the tenants under the second mortgage ; that the evidences of the debt were delivered by Willard to G. Bliss junior, Wade’s attorney, Willard intending that the delivery of them should be considered as of notes delivered up on payment, and Bliss claiming to hold • them and the deed as a legal assignment to Wade. Bliss prepared a release and assignment in apt words to carry Wade’s object into effect, but Willard refused to execute it. Parol evidence was also offered of conversation and other circumstances to show the intention of Willard in the instrument which he executed, and also the wishes of Wade’s attorney. The demandant’s counsel objected to the paroi evidence.
    
      Sept 17th
    If the Court should be of opinion that the demandant was assignee of- the first mortgage, the tenants were to be defaulted. If the first mortgage was discharged, and not assigned, by Willard’s deed to the demandant, the demandant was to become nonsuit.
    The demandant having died since the first day of the term, and before the argument, a question was made whether judgment might not be entered, as of the first day of the term ; the Court, however, without giving any opinion on the point, directed the case to be argued.
    
      Ashmun and G. Bliss junior, for the demandant.
    The deed of Willard to the demandant was an assignment of the first mortgage in the most general and effectual terms. 4 Cruise, 161. Where a deed may enure to divers purposes, he to whom it is made, may elect which way to take it, and he may take it that way which is most for his advantage. Shep Touch. 83 ; Co. Litt. 301 b ; Hayward’s Case, 2 Co. 35 The assignment of the mortgage did not operate as a merger, for the Court will prevent a merger where it would operate against the interest or intent of the party taking the estate. Vin. Abr. Merger, A, 2; Gibson v. Crehore, 3 Pick. 482; James v. Morey, 2 Cowen, 284; Chandos v. Talbot, 2 P. Wms. 601; Thomas v. Kemeys, 2 Vern. 348; Wyndham v. Egremont, Ambl. 753; Gardner v. Astor, 3 Johns. Ch. R. 53; Starr v. Ellis, 6 Johns. Ch. R. 393; James v. Johnson, ibid. 417; Taylor v. Bassett, 3 N. Hampsh. R. 294; Freeman v. Paul, 3 Greenl. 260 ; Archer’s Case, 1 Co. 66. The intervening incumbrance in this case prevents the merger. Merger depends on the intention of the party. If it is for the interest of the party to uphold a charge, as it is in this case, an intent to do so will be presumed, and no merger will take place. Compton v. Oxenden, 2 Ves. jun. 263; Forbes v. Moffatt, 18 Ves. 384; Chandos v. Talbot, 2 P. Wms. 601; Chester v. Willes, Ambl. 246; Powell v. Morgan, 2 Vern. 90; Popkin v. Bumstead, 8 Mass. R. 491; Snow v. Stevens, 15 Mass. R. 278; Gibson v. Crehore, 5 Pick. 150; Barker v. Parker, 4 Pick. 505.
    
      The clause in Willard’s deed, “ the aforesaid sum having been this day paid me in discharge of said mortgage,” cannot control the effect of the deed. It only shows Willard’s intent; whereas the intent of the party taking the deed must govern. But it is clear in this case, that the grantor intends to bargain and sell, as well as to release, and where there is a repugnance in the different parts of a deed, the first part operates in preference to the last. Touch. 99 ; 2 Preston on Conv. 439, 440 ; Stukely v. Butler, Hob. 170; Cutler v. Tufts, 3 Pick. 277, 278. The words of a deed are to be construed most strongly against the grantor. Co. Litt. 42 a, 183 ; 2 Bl. Com. 380. A deed must be construed so as to give effect to. the intent of the parties. Worthington v. Hilyer, 4 Mass. R. 205.
    The evidence of the conversation between the parties was improperly admitted, to vary the effect of the writing.' Dwight v. Pomeroy, 17 Mass. R. 325; Rich v. Jackson, 6 Ves. 334, note ; S. C. 4 Bro. Ch. C. 514 ; 3 Stark, on Ev. 1009 ; Doe v. Chichester, 4 Dow, 65; Randall v. Phillips, 3 Mason, 383.
    
      Lathrop and Willard, for the tenants.
    It is questionable whether a writ of entry can be sustained, as the tenants are mortgagees, and the demandant is in the place of the mortgager, and now urging his right to redeem by a bill in equity. Hill v. Payson, 3 Mass. R. 559 ; Perkins v. Pitts, 11 Mass. R. 134. Even if Willard’s deed were an assignment in form, it could not operate as such in this case, as it would injure the rights of subsequent mortgagees. The demandant can have no more right in this case, than Fry, the original mortgager, would have had, had he paid off this mortgage. Fry, as against the tenants, could not invest himself with the rights of a prior mortgagee ; neither can an assignee of Fry. Willard’s deed was a release in form, and operated as a discharge of the mortgage. Somes v. Skinner, 3 Pick. 54; Coates v. Cheever, 1 Cowen, 479; Touch. 84. The estates were merged. Co. Litt. 338 b; Powell v. Morgan, 2 Vern. 90; Thomas v. Kemeys, 2 Vern. 248. To construe Willard’s deed as a discharge, gives effect and operation to every part of it; and so construed, the clause declaring the money to be paid in discharge of the mortgage, is not repugnant to the previous part of the uieed. Sprague v. Snow, 4 Pick. 54. Subsequent words may restrain the operation of previous ones. Reade v. Bullock, Dyer, 56 b. If a mortgager, having a bad title, purchases a good title, it enures to the benefit of the mortgagee. Pow. on Mortg. 251. And a mortgager, purchasing a first mortgage, cannot set it up against a second mortgagee. Toulmin v. Steere, 3 Mer. 210; 3 Wheat. 226 note; Bull. N. P. 110; Newall v. Wright, 3 Mass. R. 138; Bigelow v. Will-son, 1 Pick. 485; Maundrell v. Maundrell, 10 Ves. 246. The relative situation of the parties here, the demandant representing the mortgager, and the tenants being mortgagees, may be shown, to aid the construction of the instrument. Fowle v. Bigelow, 10 Mass. R. 379; Leland v. Stone, 10 Mass. R. 459; Adams v. Frothingham, 3 Mass. R. 352; Sumner v. Williams, 8 Mass. R. 214; Whallon v. Kauffman, 19 Johns. R. 104; James v. Morey, 2 Cowen, 284; Kelly v. Beers, 12 Mass. R. 387; Barker v. Parker, 4 Pick. 505.
    If the demandant prevails, the tenants will lose every thing, as the three years for redemption have expired ; but if they prevail he will lose nothing. Haines v. Beach, 3 Johns. Ch. R. 459.
    
      JLshmun,
    
    in reply, said that though a mortgager could not himself claim as assignee of a mortgage against a subsequent incumbrance under himself, yet that an assignee of the equity of redemption might acquire rights as assignee of a mortgage.
    The payment of the first mortgage being made on the last day, cannot vary the rights of the parties as the tenants took no step to redeem, they are not injured.
   The opinion of the Court was afterward drawn up by

Parker C. J.

This case is somewhat complicated, and it is necessary to unravel it before we can apply the principles which ought to decide the controversy between these parties.

Before the 29th of April, 1819, Thomas Fry and Nathaniel Fry were the owners, as tenants in fee simple, of the land in question. On that day they made their joint mortgage of it to John Gould, to secure 1500 dollars due to him. An equity of redemption was then left to the two mortgagers. On the 12th of March,' 1821, Nathaniel Fry made an absolute deed of all his right to Thomas, and on the same day Thomas exe outed a mortgage deed of the same premises to Nathaniel to secure the payment of 1000 dollars. In this state of the conveyances Gould was the legal owner of .the land, under the joint mortgage to him above stated, with an equity or right to redeem then subsisting wholly in Nathaniel Fry, which equity was defeasible by Thomas on performance of the condition of his deed to Nathaniel. Between the two Frys their condition was the same as would have been created by a bargain and sale of the land itself, and their respective rights were the same, the land being encumbered by the mortgage to Gould. The right of Gould was transferred to Willard by deed on the 8th of February, 1825. The right of Nathaniel Fry was transferred to Joseph and Elijah Bissel, and by them to Howard and Lathrop, who entered upon the land, by consent of Thomas Fry, in December, 1823. Gould, before his assign ment to Willard, viz. February 27, 1824, had entered upon them by virtue of his mortgage, in order to foreclose the right to redeem. His seisin under the mortgage passed to Willard, by virtue of the assignment, in February, 1825. On the 7th of January, 1824, when the sheriff’s sale took place, the title stood virtually thus : — Gould was the legal owner by virtue of the mortgage, and Howard and Lathrop were the owners of the right in equity to redeem, by virtue of the conveyance from Nathaniel Fry ; and Thomas Fry had a right to redeem this equity and restore himself to the right of paying off Gould’s mortgage and so becoming owner of the whole land. Thomas Fry’s right was then sold by the sheriff, and the plaintiff was the purchaser. What right did he acquire by the sheriff’s deed ? certainly nothing more than the right of Thomas Fry. which was to pay off the mortgage to Nathaniel, which had become vested in Howard and Lathrop, and then to pay off the mortgage to Gould, and he paid for this right only. Under this purchase, after the estate of Gould was vested in Willard, viz. on the 26th of February, 1826, the plaintiff paid to Willard the amount due on the mortgage to Gould and took from him a deed, the effect of which will be presently considered. If Thomas Fry himself, supposing his title had not been transferred, had paid the money due, it is manifest that whatever might have been the form of the deed from Willard to him, he could not thereby have defeated his own mortgage to Nathaniel; and it would seem to follow, that the purchaser of Thomas’s right could not, merely by paying off the mortgage to Gould, secure to himself an indefeasible title notwithstanding Thomas’s mortgage was outstanding, the equity purchased being that of redeeming against both mortgages, for that was all the sheriff could sell.

So if the plaintiff had merely paid the amount of the mortgage to Gould, or tendered it and then proceeded to exact his right at law or by a bill in equity, the result would have been, that he would have held the land discharged of that mortgage, but as he would come to the land only under Thomas Fry, the mortgager, whose right he had purchased, he would not thereby have acquired a right to hold the land discharged of Thomas Fry’s mortgage to Nathaniel, made before the right in equity was sold.

But it is contended, that by virtue of the deed from Willard to him, he became assignee of the mortgage to Gould, so that in consequence of the entry to foreclose made by Gould in 1824, the absolute title, at the expiration of three years from the time of that entry, vested in him to the entire defeat of the tenants’ claim under the mortgage of Thomas Fry. The effect of which would be, not only to supplant those who were prior in right to him, but to acquire the value of this mortgage to himself without any consideration, for he is presumed to have paid for the right to redeem only what the land was worth over and above both mortgages. The law certainly would not work this mischief without the aid of the parties, and we think with such aid the attempt to produce this effect must be unsuccessful. Even if the deed produced was an assignment in terms, and so intended to be by the parties to it, if the second mortgage had been then the property of a third person not consenting, we much doubt whether the plaintiff, having knowledge of the existence of that mortgage, could defend himself in a court of equity against it. Indeed the transaction would probably be held fraudulent as against the rights of the second mortgagee.

But we are of opinion, that the deed of Willard will not admit of the construction insisted on by the plaintiff. Its general phraseology is that of a mere quitclaim 01 release, and notwithstanding it contains the words grant, bargain, sell, &c. yet these words are to be limited and restrained by the general tenor of the context, the subject matter, and more especially by the express declaration of intent by the grantor contained in the deed itself. Words importing general covenants in a deed may be restrained by subsequent words showing a manifest intent to limit and restrain them to a particular subject. It is true, that if there is a clear and undoubted grant in the former part of a deed, and afterwards words are added which are repugnant or contradictory, the latter may be rejected ; but where the words are ambiguous, or so mixed up with other words as to show an intent different from the common effect of some of the words if taken by themselves, the subsequent words may be used to ascertain the real intent of the instrument. Now it is obvious and clear from the whole of the deed taken together, that the intent of the grantor was to give only a release or discharge of the mortgage. This was what he was bound to do by law, and he was bound also, in faithfulness to those for whom he held the mortgage in trust, not to give an assignment, the effect of which would be to destroy their right under the second mortgage. Even if the paroi evidence were admissible, it would show no different intent on his part, and as to the intent of the grantee alone to acquire by virtue of this instrument more than he had a right to ask, it certainly could not prevail. But we are inclined to think that the paroi evidence of the declarations of the parties was not competent, and ought to have been rejected. The facts and circumstances then show a right in the grantee to demand a release of the mortgage, and nothing more, and the deed given ought to have a construction which will give the plaintiff all his rights without.violating the rights of the defendants.

The result of our best consideration of this subject is, that the demandant must become nonsuit, and resort to his bill in equity to perfect his title by extinguishing the second mortgage ; and this places him just where he could expect to stand when he purchased the. equity of redemption at the sheriff’s sale. 
      
      
         See Wade v. Howard, 8 Pick. 353.
     
      
       As to the force and operation of a deed of quitclaim and release, see Somes v. Skinner, 3 Pick. (2nd ed.) 58, note 1; Revised Stat. c. 59, § 5 Wade v. Howard, 11 Pick. 296; Carll v. Butman, 7 Greenl. 102; Dockray v Noble, 8 Greenl. 278.
     
      
       See Wade v. Howard, 11 Pick. 295.
     