*378By the Court —
Wilson, C. J.— The only question in this case is whether in the purchase of the Marsh mortgage by the plaintiff, the estate or interest thus acquired merged in the legal estate.
In equity where the legal and equitable estates become united in the same person the equitable is merged in the legal, unless the party in whom they meet intends to keep them separate, (which intention must be just and injurious to no one,) and where no such intention is expressed it will be jiresumed if it is for the interest of the party in whom the estates meet. Wilcox & Barber vs. Davis, 4 Minn., 197; Starr vs. Ellis, 6 John. Ch., 395; Forbes vs. Moffatt, 18 Ves., 384; Cleft vs. White, 2 Ker., 536; 4 Kent's Com., 102; James vs. Morey, 2 Conn., 246. The question here then is one purely of intention declared or presumed. The Judge who tried the cause below has found as a matter of fact that the plaintiff did not in taking the assignment of said mortgage, intend either that it should be extinguished or merged, or that it should not remain a valid or first lien upon the premises therein described, and. has also found that it was for the interest of the plaintiff that the mortgage should remain a lien.
To this finding the defendants’ counsel objects, (1), that it does not show affirmatively that the plaintiff intended to keep said mortgage lien alive ; (2), that it was not competent for the plaintiff to prove or for the Court to find that it was for the plaintiff’s interest to keep the estates separate, that fact not having been alleged ; (3), that it is not the province of the Court in any case to find as a fact that it is for the plaintiff’s interest, &c,, but that the facts must be found from which this is inferred.
It is true that in this finding it is not affirmatively and positively stated that in taking the assignment plaintiff intended to keep alive the lien ; but from the facts found the Court was authorized and bound to presume such intention. See authorities above cited.
If there was any error, therefore, in the finding in that respect it was technical and formal merely, and should be disregarded. An averment of the plaintiff’s interest in keeping al'ive the lien, was not necessary in order to justify the reception of evidence of that fact.
*379The interest of the plaintiff was shown merely as evidence of his intentions — it being presumed that he intended to act in accordance with his interest.
With reference to defendants’ third objection, even if we should' regard the finding of the Court as the finding of a legal conclusion rather than of facts, it would not be a fatal error — as the facts from which this is inferred are all found by the Court.
The evidence, we think, was clearly sufficient to justify the finding.
Judgment below affirmed.