The opinion of the Court was drawn up by
Shepley J.— The demandant alleges, that by an attachment made by Ellis and others, and by a subsequent seizure and sale on execution, he acquired a title to the equity, which the Pools had to redeem the estate mortgaged by them to Cope-lands and Lovering. And if lie thus became the owner of the equity of redemption nothing could pass by the deed, by which the Pools attempted to convey the same to the tenant; who would not therefore become the owner of the estates both of the mortgagor ami mortgagee ; and the doctrine of merger could not be applied. And if the demandant did not thus acquire a title to the equity, he has no title. Even if the tenant could Joe considered as acquiring the equity of redemption by the conveyance from the Pools to himself on the second of November, 1837, and the title of the mort*88gagees by the deed of Copelands and Lovering on the twenty-first of May, 1838, the .rule is well established, that the mortgage would not be considered as extinguished, when it was for his interest to have it upheld, unless the intention of the parties to extinguish it was apparent. But the deed from Copelands and Lovering to the tenant, so far from disclosing such an intention, undertakes to convey the estate to the tenant, who would thereby become the assignee of the mortgage. After a release of the title that deed contains this clause, “ meaning and intending hereby to convey all the right, title and interest now vested in us by virtue of any and all conveyances heretofore made to us by Isaac Pool and John C. Pool.” It is not necessary therefore to inquire, whether the mortgage was foreclosed so as to prevent the demandant from acquiring any title by the sale of the equity of redemption, for if he did thus acquire the title he cannot maintain this action. Plaintiff nonsuit.