I do not perceive that the cases which have been referred to upon the effect of covenants not to sue have any direct bearing upon the present case. The plaintiff was under no personal liability to pay the money secured by the mortgage upon the premises purchased by him. Fitch was the only person bound to pay that money, and nothing which has been done by the several parties deriving titles under him has at all affected his liability. If the lien *Page 582 against the lot has been extinguished so that it cannot now be enforced against the plaintiff's interest, it is on account of the dealings of the parties with the land, and not with the personal contract. The case in the Vermont Reports, which has been urged upon us as a controlling authority, appears to me to have been decided upon other grounds altogether. (Proctor v.Thrall, 22 Verm., 262.) For the cases upon covenants not to sue, see Cuyler v. Cuyler (2 John., 186); Phelps v.Johnson (8 id., 54); Clark v. Bush (3 Cow., 151);Sewall v. Sparrow (16 Mass., 24); Brown v. Williams (4Wend., 360).
The doctrine of merger is equally inapplicable. Merger, in its relation to real estate, occurs where the legal and equitable estates are united. In such cases the equitable estate is merged in the legal title and is extinguished at law, and generally in equity also, by the unity of seisin. But in this case there was no union of the equity of redemption and of the estate mortgaged, in Philo D. Mickles. He had parted with the equity of redemption long before he purchased the mortgage. He had also, before that time, assigned the mortgage of the equity of redemption, which he took back when he conveyed to the plaintiff. So there was nothing upon which to predicate the idea of merger. But if this were otherwise, and if P.D. Mickles had retained the equity of redemption until he had purchased the mortgage, it would, in the view of a court of equity, depend upon his intention, when he did the latter act, whether the mortgage should be considered extinguished. By taking an assignment from Hall, instead of a satisfaction, and especially by selling and assigning the mortgage to Townsend for a valuable consideration as an existing security, he sufficiently manifested an intention not to extinguish it, according to the case of James v. Morey (2Cow., 246).
But there is another principle which is, I think, fatal to the validity of the mortgage. It is the doctrine of estoppel by deed. It is a rule of the common law, that if a grantor *Page 583 without title convey lands with warranty, and afterwards acquire title, it immediately vests in the grantee by estoppel. In section 446 of Littleton's Tenures, the writer, in speaking of the effect of a release, says: "If there be father and son, and the father be disseised, and the son (living the father) releaseth by his deed to the disseisor all the right which he hath or may have in the same tenements, without clause of warranty, c., and after the father dieth, c., the son may lawfully enter upon the possession of the disseisor, for that he had no right in the land in his father's life, but the right descended to him, after release made, by the death of his father,c." COKE, in commenting upon this, taking the words "withoutclause of warranty" as his text, remarks: "For if there be a warranty annexed to the release the son shall be barred. For, albeit the release cannot bar the right for the cause aforesaid, yet the warranty may rebut and bar him and his heirs of the future right which was vested in him at that time; and the reason (which is in all cases to be sought out) wherefore a warranty, being a covenant real, should bar a future right, is for avoiding circuity of action (which is not favored in law); as he that made the warranty should recover the land against the terre-tenant, and he, by force of the warranty to have as much in value against the same person." (Co. Litt., 265, a.) And in another place, speaking of the parties who may avail themselves of an estoppel, he says: "Privies in blood, as the heir; privies in estate, as the feoffee, lessee, c.; privies in law, comprehending those who come in by act of law or in the post, shall be bound by and take advantage of an estoppel." (Id., 352, a.) The courts of this State have constantly affirmed this principle and have applied it in a great variety of cases. (Van Horne v. Crain, 1 Paige, 455; Kellogg v. Wood, 4 id., 578; Jackson v. Parkhurst, 9 Wend., 209; The Bank of Utica v. Mersereau, 3 Barb. Ch.Rep., 528, 567; Jackson v. Bull, 1 John. Ca., 81;Jackson v. Murray, 12 John. R., 201; Jackson v.Stevens, 13 id., 316; Vanderheyden v. Crandall, 2Denio, 9, and cases referred to by *Page 584 BEARDSLEY, J., at p. 25.) An estoppel created by a warranty runs with the land and binds the privies, both of the grantor and the grantee. It operates upon the title so as actually to alter the interest in it. (Bank of Utica v. Mersereau, supra.) Therefore, Townsend, who derived his title from P.D. Mickles, was as much bound by the warranty as Mickles was. If the plaintiff had conveyed, his grantee would have been entitled to the benefit of the estoppel.
The answer given by the defendants' counsel to this view of the case was, that the mortgage was not a title to the land, but a mere chattel interest, and that the rule relied upon did not apply. For some, and indeed for most purposes, the mortgagor is considered seised, and the mortgagee has a mere lien. Still, as between mortgagor and mortgagee, the title is considered as passing by the mortgage for many purposes. Before the Revised Statutes, the mortgagee could maintain ejectment after forfeiture; and now, if he gets into possession he may defend himself upon the title conveyed by it. (Van Duyne v. Thayre, 14 Wend., 233; Phyfe v. Riley, 15 id., 248; Watson v.Spence, 20 id., 260; Fox v. Lipe, 24 id., 164; 2Sandf., 325.) I am of opinion that, for the purpose of applying the doctrine of estoppel, the mortgagor is to be considered as having an equity of redemption only, the fee being in the mortgagee; and that in this case the purchase by P.D. Mickles of the mortgage inured to the benefit of the plaintiff in the same manner that a release by the mortgagee would have done.
It is, therefore, unnecessary to inquire, whether Townsend, or any of the persons claiming under him, had notice of the conveyance to the plaintiff. It is not an equity residing in the plaintiff, which the defendants seek to avoid. If the assignment of the mortgage to P.D. Mickles operated in the way I have supposed, when he attempted to assign that mortgage to Townsend the plaintiff was seised of the whole legal and equitable title to the premises, subject only to the *Page 585 mortgage he had himself given, and which was already in the hands of Townsend.
I am in favor of affirming the judgment of the Supreme Court.
JOHNSON, Ch. J., ALLEN, GRAY and GROVER, Js., concurred; COMSTOCK, J. (who had been of counsel), and SEL DEN, J., took no part in the decision.
Judgment affirmed.