
    BROWNE v. PERRIS.
    
      New York Supreme Court, First District, Special Term ;
    
    
      June, 1889.
    1. Executors and administrators; mortgage, when not an asset.] A mortgage transferred to the owner of the fee, without merger, to he held as a muniment of title, belongs on his death to his heir or devisee, and not to the executor or administrator; and if the latter claims it as an asset, an action lies by the former to have it adjudged merely a muniment of title, and to have possession of it awarded.
    2. Mortgages ; merger.] The assignment of a mortgage by the mortgagee to the owner of the fee, provided that the mortgage was • transferred and to be held “ as a muniment of title and not to merge in the fee of the land covered thereby.” The assignee of the mortgage died intestate, leaving him surviving a mother and sister, his only heirs at law, and Ms widow, who subsequently took out letters of administration on her husband’s estate. The sister conveyed her interest in the property in trust to the plaintiff, who brought this action against the administratrix to have the bond and mortgage, then in her hands and claimed by her to still be an existing lien upon the premises, adjudged a muniment of title, and for the delivery thereof to the plaintiff. Held, that although the mortgage did not merge in the fee, yet it was kept alive, not for the purpose of a lien, but merely as a muniment of title and to protect and defend the owner’s title to the premises; and plaintiff as trustee of the heir at law was entitled to delivery of it.
    Trial by the court.
    William. Gr. Perris became the owner of premises subject to a mortgage, which was subsequently assigned to him, with a provision therein that the same was sold to him “ as a muniment of title and not to merge in the fee of the land covered thereby, which is now owned by the said party of the second part.”® It was alleged by the plaintiff in his complaint that Perris' “ entertained a feeling of doubt and uncertainty in respect to the fact whether or not any defect existed in his title to the said real property so acquired by him, and that at the time of the payment by him of the amount of the said bond and mortgage in manner aforesaid, he, the said William GK Perris, believed that his said title was subject to a cloud or defect, and that there was some outstanding right or title adverse to the title so acquired by him,” and that by reason of his belief as to the uncertainty of his title and for the purpose of protecting and defending it, he purchased the bond and mortgage as a muniment of title.
    Subsequently Perris died intestate, leaving him surviving his widow, Maria K. Perris and Jane E. Perris, his mother, and Frances M. Browne, his sister, his only heirs at law, and thereafter the widow took out letters of administration. and became possessed of the bond and mortgage.
    Frances X. Browne conveyed her interest in the premises in trust to the plaintiff,. Arthur E. Browne, who now sued the widow individually and-as administratrix, joining- as a defendant the mother of the intestate, praying for relief that the bond and mortgage be declared to be a muniment of title of William G-. Perris and his heirs and. assigns, and that the mortgage cease to be a lien upon the premises except as against persons who might claim or assert title adverse to the title of William Gr. Perris in the premises ; and that the plaintiff be adjudged entitled to the possession and custody of the bond and mortgage and the instrument of assignment.
    The relief asked for by the defendants was, that the bond and mortgage be declared a valid and existing lien on the premises and an asset of the estate of William Gr. Perris, excepting that Frances M. Browne or the plaintiff might have an assignment thereof upon paying the' inventoried value thereof to the administratrix.
    
      John Aitken, for the plaintiff.
    
      W. W. Niles, for the defendants.
    
      
      The provision in the assignment of the bond and mortgage here referred to was as follows ;
      “ To have and to hold the same unto the said party of the second part, his executors, administrators and assigns forever as a muniment of title and not to merge in the fee of the land covered thereby which is now owned by the said party of the second part, subject only to the proviso in the said indenture of mortgage mentioned. And the said party of the first part doth hereby make, constitute and appoint the said party 'of the second part its true and lawful attorney, irrevocable, in its name or otherwise, but at his proper costs and charges to have, use and take all lawful ways and means for the recovery of the said money and interest, and in case of payment to discharge the same as fully as it might or could do if these presents were not made. And it is expressly covenanted and agreed by and between the parties hereto, that this assignment is made and accepted without any recourse to or liability on the part of the party of the first part for or on account of any defense to the collection of the amount named in said bond and mortgage or any part thereof, or by reason of any implied covenant of warrantee that any amount whatever is unpaid or owing on said bond and mortgage at the time of the execution hereof. In witness,” etc.
    
   Lawrence, J.

It has been held that where the equity of redemption is conveyed to a mortgagee, under an express written agreement between the parties that the deed shall not operate as a merger, except at the election of the mortgagee, equity will preserve the two estates distinct, unless the mortgagee appears to have elected that they should be merged (Spencer v. Ayrault, 10 N. Y. 202; Compton v. Oxenden, 2 Vesey, Jr. 264; James v. Morey, 2 Cow. 246 ; Abbott v. Curran, 98 N. Y. 665). But in all such cases, equity will look to the real and actual intention of the parties. Applying this principle to the case at bar, it seems to me that the disposition which should be made of it is clear.

Wh.en William Gr. Perris took an assignment of the mortgage in question, from the New York Life Insurance Company, and paid $4,000 therefor, he took the same as a muniment of title, and it was expressly declared in the instrument of assignment, that such was the object thereof, and that the mortgage was not to merge in the fee of the land covered thereby, which is now owned by said party of the second part.” “Muniments of title,” is a general ■expression for all the means of evidence, by which an •owner, corporate or individual, may defend title to real property (Abbott's Lem Dictionary / Bouvier's Law Dictionary).

It must be held, therefore, that Mr. Perris kept the mortgage alive for the purpose of protecting and defending his title to the property upon which it has been a lien. He had paid the money secured by it to the life insurance company, but kept it outstanding as a means of defending his title, if for any reason that title should be attacked. "It cannot, in the face of the language of the assignment, be held that he meant to keep the mortgage alive for the purpose of impairing or defeating his interest in the fee to the extent of the consideration expressed in the mortgage. I do not regard section 4 of title 5 of chapter 1, part II. of the Bevised Statutes, as affecting this case, because that section refers to a mortgage which is an actual lien upon the property, and which it was the intention of the owner of the fee to keep outstanding as such. It does not refer to a. mortgage which is simply kept outstanding as a muniment of title.

The cases of Spencer v. Ayrault (10 N. Y. 202) and Abbott v. Curran (98 N. Y. 665) do not aid the defendant, because in each of those cases the money ■ had not been, in fact, paid by the mortgagor.

Here it was paid by Perris, the owner of the fee, subject to its lien, and the instrument was kept alive as before stated, for the sole purpose of aiding him in defending his title.

To sustain the position of the defendant it must be decreed that the estate of Perris should twice pay the amount of the mortgage, which would not be consonant with equity.

I am, therefore, of the opinion that there should be judgment for the plaintiff as prayed for in the complaint.

Findings may be settled on two days’ notice..  