
    Freeman vs. Paul.
    Where the legal and equitable estates become united in the”morfgageo, the mortgage will be considered as subsisting, or not, according to his intention, actual or presumed. If no such intention appears, the Court will consider what is most for his interest. And if it appears wholly indifferent, the charge or incumbrance will be treated as merged.
    After a bill in equity is brought to redeem mortgaged premises, the Court will not permit the officer, who execute the writ of habere facias under which the mortgagee entered, to amend his return, by stating an earlier day of service, for the purpose of foreclosure.
    In this case, which was a bill in equity to redeem an estate mortgaged, the principal facts were as follows.
    
      The premises were originally mortgaged on the 18th day of .May 1814, by Peter and Theodore Littlefield, who were tenants in common, to Samuel Luni and Jeremiah Paul, to secure a joint debt of both the mortgagors, for the sum of four hundred dollars, due in six months with interest.
    Afterwards, July 16, 1816, their right inequity of redemption was sold to Edward A. Emerson, at a sheriff’s sale, in due course of law, by Mr. Paul, the defendant, who was a deputy sheriff, to satisfy two writs of execution in his hands against them in favor of another creditor.
    At October term 1816, of the Supreme Judicial Court, Luni and Paul recovered judgment upon their mortgage, for possession of the premises.
    
      February 22, 1817, Lmt conveyed all his interest in the premises to Edward A. Emerson.
    
    In July following, Mr. Emerson conveyed to the plaintiff one half of all the right in equity which belonged to the mortgagors, and which he had before purchased of Mr. Paul, at the sheriff’s sale, the condition in the deed not having been performed.
    
      Apluries habere facias having been duly issued on the judgment obtained by the mortgagees for possession of the premises, it was delivered July 13, 1818, to a coroner for service, by the present plaintiff, who was the attorney of the mortgagees in that suit. The coroner testified that on that day he gave possession of the land to Emerson and Paul, in presence of the mortgagor and his family ; and that afterwards having collected the bill of costs, he paid over the money to the present plaintiff, October 24, 1818; ■who, on the same day wrote the coroner’s return, bearing that date, and running in the usual form, — “By virtue of this precept I have delivered seisin and possession,” &c. which was then signed by the coroner. It did not appear that the plaintiff had any actual knowledge of the precise time when possession was delivered by the officer to the mortgagees ; but only that he knew that it had been done, and that he wrote the return at the officer’s request.
    
      May 22, 1819, Emerson conveyed to Paul, the defendant, in fee, all his right, title aruh interest in the land ; thus uniting in 
      Paul the titles of mortgagor and mortgagee of half the premises. This conveyance the plaintiff treated as payment of one half of the debt, and accordingly, on the 5th day of October 1821, being less than three years after the date of the coroner’s return, tendered to the defendant two hundred and ninety dollars for the amount due to him, which being refused, the present bill was filed.
    Shepley, for the plaintiff,
    contended that by the union in the defendant of both titles to one undivided moiety of the land, one-half of the debt was ipso facto extinguished ; and the plaintiff was thereupon entitled to redeem, upon payment of the residue. To this point he cited 2 Com. Dig. 676. Chancery 4 JV. 8, 9. 6 Com. Dig. 323. Suspension B. ib. 190. Release B. 6. Co. Lit. 280 a. 148 a. Litt. sec. 222, 543, 544. Thomas v. Thompson % Johns. 471. Ld. Compton v. Oxenden2 Ves. jr. 264. Selby v. Alston 2 Ves.jr. 339. Berry v. Usher 11 Ves. 90. 13 Ves. 62. St. Paul v. Ld. Dudley & Ward 15 Ves. 173. Forbes v. Moffatt 18 Ves. 384. Porter v. Millett 9 Mass. 101. Collins v. Torrcy 7 Johns. 278. Ritchie v. Williams 11 Mass. 50. Stevens v. Gaylord ib. 266. Winshipv. Bass 12.Mass. 199.
    • The officer’s return, he insisted, wus conclusive evidence of the time when possession was delivered ; and was not to be con-troled by parol testimony; nor could the officer now be permitted to amend it, as such amendment would impair the rights already vested in a third person. Neither could the parol evidence of what was done on the 13th day of July avail the defendant as an entry enpais for condition broken, because the evidence shewed that it was not so intended. To the conclusiveness of the return, Jie cited Purintonv. Loring 7Mass. 391. 6 Com. Dig. 242. Retorn G. Williams v. Brackett 8 Mass. 240. Davis v. Maynard 9 Mass. '247. Bott v. Burnell 11 Mass. 165.
    Greenleaf, for the defendant,
    having at the opening of the case moved the Court to permit the officer to amend his return, by stating the true time when he delivered possession to the mortgagees, now argued that the amendment was in perfect consonance with established principles, as it did not go to contradict the return, but only to explain it. The return states that he had delivered possession, but not on what day this was done ; and to ascertain this day is the object sought. Nor would it affect the rights of strangers, the plaintiff claiming at that time to be a privy in estate, by his purchase in the preceding year. Thatcher & al. v. Miller 11 Mass. 413. If, however, this motion is not granted, the evidence shews an entry en pais July 13, 1818, in presence of the mortgagor, and with his assent; and by the lapse of three years from that time the mortgage is foreclosed.
    The union of titles in the defendant, he contended, was not to be construed to his injury ; but the mortgage was to be kept on foot as it originally stood, so long as it was plainly his intention, or his interest, that it should be so treated. Otherwise, the mortgagee to whom a mortgagor has executed a release of the land, must lose his remedy on the covenants in his mortgage deed ; and hold the land subject to all mesne attachments and incumbrances. But here the intent of the mortgagees evidently was to claim the benefit of the mortgage. Forbes v. Mojfatt 18 Ves. 384. Denn v. Wynkoop 8 Johns. 168. Norton®. Soule 2 Greenl. 341.
    But the plaintiff in this case is not, on any principle, entitled to redeem ; because nothing passed to him by his deed, it being a conveyance oí part of a right in equity, which was indivisible.
   The cause being continued nisi, the opinion of the Court was delivered at the ensuing Jlugusl term in Oxford by

MelleN C. J.

If the coroner’s return speaks the truth as to the time when seisin and possession was delivered to the mortgagees, then the tender’was made in due season; being within three years next following the date of the return. For the purpose of being relieved from the effect of the return, as it now stands, the counsel for the defendant has moved for leave to the officer who made it to amend it, by inserting July 13, 1818, as the day when seisin and possession were in fact delivered; and he has introduced proof with a view of establishing the truth of his assertion. This motion is opposed by the plaintiff, as not being grantable on principle. It is not necessary to notice the authorities introduced by bis counsel to shew the conclusiveness of the return. On the other side this seems admitted ; and hence is perceived the importance of the motion to amend it, inasmuch as it cannot be contradicted in its present form. In support of the motion, the defendant’s counsel has cited the case of Thatcher v. Miller 11 Mass. 413. The report of the case there shews nothing decisive. The same case was again considered and is reported in 13 Mass. 270. By this last report it appears that the motion was denied ; the Court considering that it would be dangerous to grant it. But if we were clear that on principle it would be proper to grant the leave requested ; another question remains, and that is, whether, in the circumstances of this case, justice requires that the amendment should be made. As a general principle, it is certainly true that when a mortgagee takes possession under his habere facias, the owner of the equity of redemption has a right to consider the -officer’s return thereon as speaking the truth, and to make his calculations accordingly, with respect to redeeming. It maybe, and often is the only evidence which he has as to the time of taking possession. He will in such cases rely on the record, presuming it cannot deceive him. It is said, however, that the general principle is not applicable in this case, because Freeman had personal knowledge that the habere facias was executed July 13, 1818. It is difficult to arrive at this conclusion from the depositions in the case. All the deponents, except Howard the officer, say expressly they do not know that Freeman had any knowledge of the service of the writ of possession ; and Howard himself, who doubtless has strong wishes on this subject, only says that Freeman had knowledge of the service of the writ, and was present at the time, which he says he has no doubt was on the 13th of July; but he adds, that he is positive that Freeman wrote the return himself; and yet this very return bears date Oct. 24, 1818. He says further, that Freeman wrote the return at his request. It must therefore be considered as written and dated according to Hoioard’s direction ; and thus contains a declaration on his part that the return was completed, and was to take effect on that day and not before ; and of course Freeman was justified in so considering it; and from that day commenced his calculation of the three years within which he must redeem the premises. On these principles, it would seem to be direct injustice to allow the amendment, as its operation would be retrospective, avd destructive of the plaintiff’s claims. But, if we only place the present motion on the common ground of motions out of time, to plead infancy, or the statute of limitations, or the statute against usury, motions which are seldom granted, there would seem to be good reasons for denying the leave requested. This is a process in equity ; and by refusing the motion and eventually sustaining the bill, we do no injustice to the defendant; — his debt and interest must be paid, and perfect justice be done him, before he will be compelled to surrender up the possession of the premises. But by granting the leave, the tender must he decided to have been too late, and the equity of redemptionlost. As the motion is addressed to our discretion, we are at liberty to grant or refuse the amendment, according as the justice of the case .may seem to demand. On the whole, considering all the circumstances abovementioned, our opinion is that the motion ought not to prevail ; and we deny it accordingly.

The counsel for the defendant has contended that as the return now stands it does not follow necessarily that possession was not delivered on the 18th oí July 1818 ; because the officer in his return dated Oct. 24, 1818, only says, “ by virtue of this precept I have delivered,” &c. — not saying when. We cannot admit this construction. The act must be considered as dope on the day stated at the head of his return. It has also been urged that, laying the return out of the case, there was an entry enpais on the 13th of July ; and that such an entry was sufficient. On looking carefully into the proof, it does not establish any such fact; it is mere opinion or hearsay. Besides, the ans.wer of the defendant alleges nothing of this kind ; it relies merely on the seisin and possession delivered by Howard, by virtue of a writ of habere facias. These circumstances, therefore, can have no effect in the decision of the cause.

The only question remaining to be considered is, whether a sufficient sum was tendered by the plaintiff to entitle him to maintain this bill; and under this head three points have been presented.

1. Was the equity of redemption capable of division so that the plaintiff could legally purchase a moiety of it ?

2. If so, could he redeem the premises by paying or tendering a moiety only of the original debt and interest ?

3. If so, has he tendered a moiety of such debt and interest ?

In considering these points, we shall change their order.

As to the third, we would observe that a question arose at the hearing, whether the sum tendered was a moiety of the original debt and interest due at the time of the tender ; to answer which question, it became necessary that an account of rents, profits, and expenses, since the entry of the mortgagees, should be taken. This has been done, and it is now ascertained that the sum tendered, added to the > balance of rents and profits received by Paul, since possession under the judgment was taken, was sufficient ; being more than a moiety of the original debt and interest. This disposes of the third point.

As to the first point, it is of importance to attend to dates. It appears by .the deeds in the case that on Feb. 22, 1817, Emerson was the owner of all the equity of redemption, and of a moiety of the premises as mortgagee ; or rather as assignee of one of the mortgagees. Now, if this union of titles in Emerson, as to a moiety, operated as an extinguishment of the mortgage in respect to such moiety and a merger of the equity in the legal title, as is contended by the counsel, and will be examined by us under the second point, then it follows that when Emerson, on the 26th of July 1817, conveyed to Freeman what he called one half of the equity of redemption, he in fact conveyed all the right that he had and that was then in existence. On this principle, the objection disappears, and leaves only one question or point more ; being the second point before mentioned, viz. — could the plaintiff r edeem the premises and be entitled to a decree of restoration by tendering only a moiety of the debt and interest ? This resolves itself into the question, whether the union of titles in Emerson, of which we have before spoken, did, as to a moiety, extinguish the mortgage, and of course, leave only one half the original debt and interest in legal existence. If so, the bill must be sustained and a decree passed in favor of the plaintiff, — if not, it must be dismissed.

, On this head we have examined the places referred to by the counsel for the plaintiff in Littleton and Coke, and the cases in the \JYew-York and Massachusetts reports. The former relate to extinguishment of rent as to all, or to a part, in certain cases ; the latter refer to cases of extinguishment or suspension of debts by the appointment of the debtor as executor or administrator. The cases from 2 Ves. 264, 3 Ves. 339, and 15 Ves. 173, seem to establish or recognize the general principle that the union of the legal and equitable estates produce a merger of the equitable, unless the contrary appears to have been the intention on the part of him in whom the two interests are united. In the case from 8 Johns. 168, cited by the defendant’s counsel, there was express proof, that the mortgage was kept on foot by way of security. But he principally relies on the case of Forbes v. Moffatt 18 Ves. 385, as containing and establishing principles that will settle this cause in his favor. This case was also cited by the counsel for the plaintiff. The facts were, John Moffatt held a mortgage of certain estates to secure the payment ofl3,000Z. Afterwards the mortgagor died ; having by his will devised all his property real and personal to the said John Moffatt the mortgagee ; and the question was, whether the mortgage was extinguished or sunk in the devise. Sir William Grant, the master of the rolls, in delivering his opinion, lays down certain principles, regulating in all questions of such a nature. He observes — “ It is very i£ clear that a person becoming entitled to an estate subject to a “ charge for his own benefit, may, if he chooses, at once take the ‘4 estate, and keep up the charge. The question is upon the intention, actual or presumed, of the person in whom the u interests are united. In most instances it is, with reference <c to the party himself, of no sort of use to have a charge on his “ own estate ; and where that is the case, it will be held to sink, unless something shall have been done by him to keep it on foot. u The owner of a charge is not, as a condition of keeping it up, called upon to repudiate the estate. The election he has to make is not, whether he will take the estate or the charge ; “ but whether, taking the estate, he means the charge to sink “ in it, or to continue distinct from it.” Where no intention is expressed by words or actions, on the part of the mortgagee, as to the maimer in which he holds the estate after acquiring the whole title, recourse is to be had to presumptive intention. On this ppint the master of the rolls proceeds and says, — “With “ regard to presumptive intention, it was evidently most advan- “ tageous for John Moffatt that this mortgage should be kept on “ foot; for otherwise, he would have given priority to the other “ mortgage and all the debts of his brother, (the mortgagor.) “ The reasonable presumption, therefore, is that he would choose “ to keep the mortgage on foot. When no intention is expressed, “ or the party is incapable of expressing any, I apprehend the “ Court considers what is most advantageous to him. Upon that “ principle it was holden in the case of Thomas v. Kemish, that “ the charge should not sink ; as that was for the advantage of “ the infant.” He further observes, — “ Upon looking into all the “ cases in which charges have been held to merge, I find nothing “whichshows that it was not perfectly indifferent to the party, “ in whom the interests had united, whether the charge should or “ should not subsist; and in that case, I have already said it.sinks.” In the above case of Forbes v. Moffatt it was contended that as the whole estate was devised to John Moffatt, the mortgagee, the whole charge or mortgage was sunk. In the case before us as Paul purchased the equity of redemption as to a moiety only, it is not contended that more than a moiety of the mortgage is extinguished or charge sunk. Let us now apply the principles we have been considering, to the facts in the case before us, and see if there are any circumstances shewing an express intention on the part of Paul as to the continuance or merger of the moiety of of the mortgage. We have none of his language or declarations on the subject; and the only acts on his part, in relation to the mortgage, are the recovery of judgment thereon in the year J1816,'by him and Lunt, and receipt of seisin and possession in October 1818, — and both these events took place before Paul had acquired any interest whatever in the equity of redemption. This interest he purchased in May 1819. Of course neither of those acts can explain the intentions of Paul, in a transaction which did not occur till many months afterwards. As to Paul’s refusal of the money tendered, accompanied by his reasons for the refusal, it certainly does not furnish any evidence of intention as to the point under consideration. He claimed the property as his own absolutely ; and denied all right on the part of Freeman. Such conduct is perfectly consistent with any good title in him, from whatever source derived. There being then, no proof of intention by words or acts on the part of Paul, the next inquiry is whether the case furnishes any grounds of presumptive intention. The answer is simple and plain. No facts are disclosed, shewing that the continuance of the mortgage or charge, as to the moiety owned by Paul, has been, since he became the owner of it, or ever can be, of any advantage-to him. We hear of no intermediate incumbrances whatever, and have no grounds presented to our view on which we can perceive any possible advantage in bolding the moiety under the mortgage, when he owned the whole title and estate therein. In the language of Sir William Grant, we find nothing which shows that it was not, and is not, perfectly indifferent to Paul whether the charge should or should not subsist; and in that case it sinks.

The result is that there must be a decree for the plaintiff.  