Ætna Life Insurance v. Corn

Citations

• 89 Ill. 170

Syllabus

<p>1. Merger of incumbrance—in fee. Where a party acquires an estate upon which he holds an incumbrance, it is considered in equity as subsisting or extinguished, according to his intention either expressed or implied. If no intention can be learned, equity will treat the incumbrance as subsisting or extinguished, as may be most conducive to the interests of the holder of the incumbrance and of the estate. The .intention, when manifest, governs in such case.</p> <p>2. Where the holder of a mortgage takes a conveyance of the mortgaged premises, in which it is expressly stated that the conveyance is subject to the mortgage, and afterwards collects part of the mortgage debt, this will show an intention to keep the mortgage alive, and there will be no merger as between the parties, and if the conveyance is recorded it will afford notice of the same fact to all persons subsequently dealing with the property.</p> <p>3. Where the holder of a mortgage took a conveyance of the mortgaged premises, in which it was expressed to be subject to the mortgage, and after-wards transferred the note secured by the mortgage, to indemnify a surety, and then executed a deed of trust upon the same premises, under which a sale took place, it was held, there was no merger, and that the surety, in equity, could foreclose the mortgage to the extent he was compelled to pay for his principal, as against the purchaser under the trust deed, the record of the conveyance showing it was subject to the mortgage.</p>