
    Calvin E. Hull, Appellant, v. Adelbert D. Cronk and Anna Cronk, Respondents.
    
      Merger of a first mortgage debt in a conveyance to the holder thereof by a purchaser under the foreclosure of a second mortgage on the premises—rejection of evidence as to the comiderationpaid for the conveyance—reversal where no exception is taken.
    
    A conveyance by a purchaser at a foreclosure sale under a second mortgage of the mortgaged premises to the holder of a first mortgage thereon, raises a presumption of a merger in which the debt as well as the mortgage is extinguished. A judgment declaring that a merger took place will not be reversed, because of the exclusion of evidence concerning the amount paid by the first mortgagee to obtain the conveyance, upon the ground that such evidence was competent to establish an intention that no merger should take place, where it appears that no exception to the exclusion of the evidence was taken, that no statement was made as to the purpose with which it was offered, and that no other evidence was given upon the question of intention.
    
      Semble, that even if the question had been answered the Appellate Division would not have been justified in reversing the judgment establishing the merger, either on the ground that such judgment was not warranted by the evidence, or that it was contrary to the evidence or to the law.
    
      Semble, that while the Appellate Division has the power to reverse for errors not fortified by exceptions, this power will be exercised only when it is apparent that grave injustice has been done the defeated party.
    Appeal by the plaintiff, Calvin E. Hull, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings oil the 13th day of February, 1900, upon the decision of the court rendered after a trial at the Kings County Trial Term.
    The case was tried before a jury, but each party having moved for the direction of a verdict, the court discharged the jury and decided the case.
    The action was brought to recover upon a note executed by the defendants, the payment of which was secured by a first mortgage or trust deed delivered by the defendants on the same day.
    
      Samuel M. Gardenhire, for the appellant.
    
      Irving W. Cole, for the respondents.
   Jenks, J.:

At the close of the trial, each party moved for a direction of the verdict, and thus made the court the trier of facts. Therefore, all the facts and the inferences necessary to support the judgment, or which could fairly, have been derived from proofs given, are deemed to be found for the defendant. (Bowery Bank v. Gerety, 153 N. Y. 413.) If there is any evidence to sustain the findings, they are conclusive upon the parties. (Reynolds v. Miller, 79 Hun, 113, 116; affd. on opinion below in 151 N. Y. 624.) The defendant pleaded a merger based upon the undisputed facts that while the plamtifE was the owner of the instrument now in suit, he became the grantee of the premises by conveyance from the purchaser at a foreclosure sale upon the second mortgage. In law this worked what the courts term irresistible merger, and in equity a merger, save that the estates will be kept separate when such is the intention of the parties and justice requires it. (Rand v. Ft. S., W. & W. Rly. Co., 50 Kan. 119, citing Andrus v. Vreeland, 29 N. J. Eq. 394, and authorities there cited, among which is Starr v. Ellis, 6 Johns, Ch. 393. See, too, Smith v. Roberts, 91 N. Y. 470, and cases cited; James v. Morey, 2 Cow; 246, especially 300, per Sutherland, J.,.and 302, adapting the rule of Grant, M. R., in Forbes v. Moffatt, 18 Ves; 389; Clements v. Griswold, 46 Hun, 377; Pom. Eq. Juris. § 790.)

Pomeroy, in his Equity Jurisprudence, in laying down the rule, says: Under like circumstances a merger will take place in equity where no intention to prevent it has been expressed and none is implied from the circumstances and the interests of the party; and a presumption in such a case arises in favor of the merger,” citing authorities. The presumption, then, was of merger, and was sufficient basis for the decision.

The appellant complains against an exclusion of testimony, which, he alleges, was evidence of his intention not to have a merger. Only this excerpt from the record is called to our attention. The plaintiff, on his re-direct examination, was put this question: “ How much did you pay Mr. Noble (i. e., the purchaser at the second mortgage sale and the grantor of the fee to the plaintiff) for that property? " [Objected to as immaterial and irrelevant. Objection sustained.]” The statement of the learned court upon the heels of the ruling is of no consequence.

There is no exception on the record. The Appellate Division undoubtedly has the power to reverse for errors not'fortified by exceptions. (Gowdey v. Robbins, 3 App. Div. 353; Gillett v. Trus tees of Kinderhook, 77 Hun, 604; McMurray v. Gage, 19 App. Div. 505; Kowalewska v. New York, etc., R. R. Co., 72 Hun, 615; Howell v. Manwaring, 3 N. Y. St. Repr. 454; affd., 118 N. Y. 682.) In Gowdey v. Robbins (supra) the trial justice erred in stating the rule as to the burden of proof. Ho exception was taken, nor were any requests for a different instruction made. We held, per Willard Bartlett, J., that we ought to grant a new trial, under the unusual circumstances presented here, where the rule laid down by the court as to the burden of proof may well have had a controlling influence upon the verdict.” Ill Gillett v. Trustees of Kinderhook (supra) the theory of submission was wholly erroneous, in that an improper rule of damages was laid down. The court, per Pura am, J., said: When a case has been submitted at a Circuit to a jury upon a theory which is wholly erroneous, the General Term has power, and it is its duty, to grant a new trial because of the erroneous instruction, though an exception was not taken.’ ” In McMurray v. Gage (supra) the court, per Herrick, J., said: “Yet it is a power that will not ordinarily be exercised, and will only be resorted to when it is apparent that grave injustice has been done, and where it is necessary for the purpose of correcting an injustice that cannot otherwise be corrected.” In Kowalewska v. New York, etc., R. R. Co. (supra) the court, per Haight, J., said: “ But this power will only be exercised where it is apparent that great injustice has been done.” In Howell v. Manwaring (supra) the court, per Barker, J., said : “ To justify this court in reversing a judgment for error, in ruling not excepted to, it must appear that injustice has been done to the defeated party upon the merits as established by the proofs.” Multiplication of authorities but- accentuates the rule. It does not appear for what purpose the testimony was offered. There is not the slightest indication on the record that the purpose now avowed was then in the mind of counsel. There is not a suggestion elsewhere in the record of any evidence introduced or of any testimony offered to establish the intention of the plaintiff. If the learned counsel had offered the testimony, even without statement or explanation, and had not apparently acquiesced in the ruling, but had protested by an exception, a different question would be presented here. It may well be that the value of the property was a fact relevant in arriving at the intention of the plaintiff as to a merger, and it has been held that under some circumstances price may tend to show value. (Matter of Johnston, 144 N. Y.. 564.) But the most that can he said here is that we are asked, in the absence of any exception to the ruling, in the absence of any avowed purpose for the question, in the absence of any evidence or of any attempt to introduce testimony touching intention, to reverse this judgment for the reason that an answer to the question would have given evidence tending to establish a fact that might be relevant as one of the surrounding circumstances tending to prove intention. Assume that the question had been answered, then there would have been but before the court an isolated fact that is evidence tending perhaps to establish a fact that the court might have considered. But even then the record would have been bare of any other fact tending to show intention. And so, even if the question had been answered, the court would have had before it the merger in law and in equity, shown by the act of the plaintiff, opposed to his testimony regarding the money he had paid for the conveyance. We would not have been justified in reversing this decision upon such evidence, either on' the ground that it was not warranted by the evidence, or that it was contrary to the evidence or to the law.

• It is further urged that the court erred in its finding of merger in fact and in law, in that the debt cannot be drowned. Thomas on Mortgages (§ 363) says : And where the mortgaged land and the mortgage both vest in the same person, the mortgage debt cannot thereafter be enforced against the mortgagor, though the land be at that time of less value than' the amount of the debt.” (Dickason v. Williams, 129 Mass. 182.)

The judgment should be affirmed, with costs.

All concurred.

Judgment affirmed, with costs,  