By reference to the findings of fact in the court below, it appears that the judgment under which plaintiff claims title, was recovered and docketed in December, 1867. At that time defendant John McMullin, as one of two heirs of Angus McMullin, and as equitable assignee or purchaser from the other heir, was the -owner of a durable léase of a farm in said county of Delaware, where said judgment was docketed. Prior to the last date, and in 1861, John McMullin made an executory contract with his landlord for the purchase of the landlord’s remaining interest in the soil and rents reserved. This contract was never performed by McMullin, nor did he ever receive any deed under it. Defendant Bell became the assignee of such contract, in 1871, and, upon full payment and performance by him, obtained a deed of the landlord’s interest. •
It is claimed by the appellants, that the plaintiff’s judgment never became a lien upon the land, for the reason that McMullin’s durable lease and his title under the same became merged, in 1861, in the contract which he then made with his landlord for the purchase of his remaining interest in the property. In other words, the appellants claim that McMnllin’s freehold estate under his lease in fee, was merged in his 'executory contract to purchase his landlord’s rents reserved and rights of forfeiture and re-entry for nonpayment of rent. The statement of the proposition would seem to be a sufficient answer. A greater estate is not merged in a *579smaller estate. (4 Kent Com., 99; James v. Morey, 2 Cow., 246.) The greater estate remains. If we concede that the contract gave McMullin an estate, it was not a greater estate than he before that possessed, and consequently could not drown it. But the contract did not give McMullin any estate. It was an executory agreement to convey upon payments to be made. McMullin, therefore, had but an equity. Where legal and equitable estates in land unite in the same person, the equitable is merged in the legal, and ceases to be recognized in equity. (James v. Morey, supra; Nicholson v. Halsey, 1 Johns. Ch., 417.) But the equitable interest in this case was not coextensive with the legal estate, and would not. therefore merge at all. In my opinion no merger could take place until an actual conveyance by the landlord of his remaining interest to the person owning the durable lease. That has never occurred.
Besides, merger is generally, if not always, a question of intention. The acts of McMullin do not indicate an intention that a merger should take place. He assigns the contract without assigning the lease. He mortgages his leasehold estate to. secure the debt due to Daniel for the purchase-price of his half. This he could not do if the legal estate had been merged in the contract, because by the contract he had no estate to mortgage. It would be extravagant to suppose McMullin intended to extinguish his legal estate under his lease, and accept, instead, a mere executory contract for the purchase of the fee.
If these conclusions are well founded, the judgment under which plaintiff claims title became a lien upon McMullin’s premises in 1867, and through such judgment and the sale thereunder the plaintiff became the owner of McMullin’s title and interest, subject to the equities of Bell, as assignee of the contract and of the mortgage given to Daniel, and as owner of the landlord’s interest. Such equitable interest of Bell is in the nature of a mortgage upon the estate, and was properly chargeable with the amounts realized by Bell from the estate while in his possession and leased by him. The sum of $322.60, realized by Bell from the property, was justly deducted from the amount found due Bell by the Special Term.
Daniel’s title and interest are not in issue in this case. In allowing Bell the amount of Daniel’s-equitable lien, the court went to the extreme limit in Bell’s favor. If Daniel still holds and owns *580Ms title, then such allowance should not have been made to Bell. As the plaintiff has not objected to such allowance, I do not. think Bell can be permitted to object to the finding of the court whereby the allowance becomes possible.
The findings and decision of the court appear to me quite too favorable to defendant Bell; notably in omitting to deduct the $120, paid by McMullin upon the contract of 1861, by way of interest.
.As no injustice has been done the appellants, and no error calling for a new trial, the judgment must be affirmed with costs.