If the mortgage had been .foreclosed, and Johnson had obtained his title under the sale on that *282foreclosure, it is clear that the plaintiff could not recover; but it is contended that the same act which divested the husband of all title, rendered his wife’s right to dower perfect; in other words, the husband’s inability to pay the mortgage debt being established, if he voluntarily surrendered the mortgaged premises, in satisfaction of the mortgage, his wife could be endowed, but if he forced the creditor into a foreclosure and sale, she could not. This distinction is so repugnant to good sense and justice, that it cannot be sanctioned unless some inflexible rule of law demands it. Eor that purpose I am referred to the doctrine of merger.
It is true that in James v. Morey (2 Cow. 284), all the judges, and afterward, in Roberts v. Jackson (1 Wend. 484), lay down the rule as applicable to an union in one person of the estate of the mortgageor and mortgagee, that wherever a greater estate, and a less, coincide and meet in one and the same person, without any intermediate estate, the less is immediately annihilated or merged, that is, sunk or drowned in the greater; and that rule, literally construed and carried out to its extreme, might, as is contended in this case, give the wife an estate in the premises, discharged of the mortgage, which the husband never had.
But it is not for the purpose of working such effects that the doctrine of merger is admitted into the law. In equity, the doctrine is never allowed to prevail against the clearly expressed intention of the mortgagee; and even at law, where some of the judges say the rule is inflexible and invariable, it has, in the very case under consideration, been held to operate only so far as to convert a conditional into an absolute estate; as merely extinguishing the equity of redemption, and removing the condition. Per Story, J. (Dexter v. Harris, 2 Mason, 531.)
If this is so, then Johnson became seized of the premises, by virtue of the conveyance from Merrill, long prior to the plaintiff’s husband having any interest in them, and she can not be endowed.
Such has been held to be the rule where the wife of the *283mortgageor was the demandant in dower, and yet the doctrine of merger, as asserted in this case, would operate equally to enable her to be endowed. (Jackson v. Dewitt, 6 Cow. 316; 4 Kent’s Com. 45; Cooper v. Whitney, 3 Hill, 102; Coles v. Coles, 15 J. R. 319.)
I regard the case of Van Dyne v. Sayre (19 Wend. 170), as decisive of this case. According to the principles of that case, the conveyance to Johnson had the effect not to enlarge the estate, but to extinguish a right. It was not the drowning of a lesser in a greater estate, for the estate was already a fee simple, but it was the extinguishment of a condition or equity. (Vide 2 Mason, 539; Carll v. Buttman, 7 Greenl. 102; Spencer v. Hanford's Executors, 4 Wend. 381.)
The result is that the mortgageor released all his right in the equity of redemption, and the mortgagee entered under an absolute instead of a qualified title. Can this be called a merger? Of what? Of the legal estate? Who ever heard of a legal estate being merged in an equitable? The legal estate is always too strong for that. Hone will say that both estates are merged. It would be still more extraordinary that one holding in himself all legal, and all equitable right, should be upset by the very perfection of his. title. That case continues: All the adjudged cases concede that as against the mortgagee there can be no dower in the equity of redemption. What is the estate of the husband at law, as against the mortgagee, even while in actual possession, under the equity of redemption ? At most he is a tenant at will, and after he shall have parted with that right, by assigning his equity, it sounds most extravagant to say that such an act shall add to his estate— as it must if the wife is to be endowed.
The defendant is entitled to judgment.