plaintiff should not have waited until the sale. When brought into court as a defendant, and certain to be bound by the decree, it should have sought to modify the decree, and showing the peril of its easement and offering to bid the full amount of the mortgage debt and costs upon a sale subject to the servitude, it should have asked that the sale be so made. The mortgagee could not object since his debt would be paid in full and he had no greater right; and Mrs. Mack could have asserted no equity to have the sale so made as to free her from the easement. But when no limitation or condition is imposed by the decree, and no duty of payment rests on the purchaser, the statute determines the estate which passes by the foreclosure deed.

The judgment of the General Term should be reversed and that of the Special Term affirmed, with costs.

All concur.

Judgment accordingly.9

EVANSVILLE GAS CO. v. THE STATE. `

SUPREME COURT OF INDIANA. 1881.
73 Ind. 219.

[The State, by the auditor of Vanderburgh county as relator, prosecuted this suit against the appellant and Francis J. Reitz, and obtained judgment against the former, but not against the latter. The object of the action was to revive a decree of foreclosure upon two school-fund mortgages, which had been taken on May 12, 1862, against James G. Jones and wife. Said decree was rendered upon two several mortgages, one dated April 14, 1855, upon lot 23, block 171, in Lamasco City, and the other dated August 5, 1859, upon lot 29, block 129, both to secure the same sum. On the 3d day of November, 1865, said Jones and wife conveyed said lot 29 to the Evansville Gas. Co.]

ELLIOTT, J.: [After stating the facts.] The decree of foreclosure which this proceeding sought to revive was, as appears from the special finding, rendered on the 12th day of May, 1862, and this action was not instituted until the 10th day of November, 1877, more than sixteen years afterward. The appellant insists that the lien of the decree ceased at the expiration of ten years from the date of its rendition. The argument is that the mortgage was merged in the

9 Compare, Van Horne v. Everson, 13 Barb. (N. Y.) 526; Huxley v. Rice, 40 Mich. 73; Thompson v. Heywood, 129 Mass. 401; Manwarring v. Powell, 40 Mich. 371 (cf. Canfield v. Shear, 49 Mich. 313); Kennedy v. Borie, 166 Pa. St. 360; Carlisle v. Libby, 185 Mass. 445; Brown v. Winter, 14 Cal. 31; Russell v. Heirs of Mullanphy, 4 Mo. 319.

judgment, and that, as the statute limits the lien of a judgment to a period of ten years from its date, with the expiration of that period terminated the lien of the decrees sought to be revived.

Appellant's chief reliance is upon section 527 of the code, which provides, inter alia, that all final judgments for the recovery of money or costs shall be a lien upon real estate for ten years after the rendition thereof, and no longer. 2 R. S. 1876, p. 233. The statute in terms applies only to judgments for the recovery of money, and does not apply to a decree of foreclosure establishing a specific mortgage lien upon real estate, and we do not think it should, by construction, be so extended as to apply to such decrees of foreclosure. Section 642 of the code is also relied upon by the appellant. If the appellant is correct in asserting that the judgment merges both the lien of the mortgage and the cause of action evidenced by it, and that the lien of the judgment takes the place of that of the mortgage, then, under the provisions of either statute, it is entitled to a reversal.

If the decree of foreclosure, which the State obtained against Jones and wife, is to be treated as an ordinary judgment, then it must be held that the lien was lost long before this action was instituted. The controlling question, therefore, is, whether a decree of foreclosure is to be treated as an ordinary judgment; for, if it is to be so regarded, then the appellant is clearly right.

If the judgment merged the mortgage lien, then the mortgage lien was extinguished. It will not do to assume, as a matter of course, that there was a merger, for there are many cases in which, in order to prevent injustice, courts will not allow merger to take place, although all the essential elements of a technical merger combine in the particular case. Mergers are not favored. As Chief Justice Parker tersely said, in Gibson v. Crehore, 3 Pick. 475, "Mergers are odious in equity."

Nor is it clear that, where a mortgage is foreclosed, the decree "swallows" the lien of the mortgage. There are at least two very strong reasons why this can not on principle be so: First, the mortgage lien is a specific one, the judgment a general one, and the lien of the former is, therefore, the superior one. The difference between mortgage and judgment liens is clearly drawn by Worden, J., in Gimbel v. Stolte, 59 Ind. 446. Second, the lien of the mortgage is superior in duration to that of the judgment. In these two essential particulars, the mortgage lien is the greater, and it would seem almost a contradiction of terms to declare that the inferior lien can swallow the greater. The whole theory of merger is that the greater estate or thing takes into itself the less, and this can not be so where there are essential particulars in which the one alleged to be the inferior is really the superior. It can hardly be possible that even an imaginary legal entity can be conceived as capable of ab

sorbing into itself another thing greatly larger in two very essential and prominent features.

The merger of a judgment takes up the mortgage as a cause of action, but not as a lien. There is a broad distinction between a merger of a cause of action and the merger of a lien, It is owing to error in confusing the merger of the cause of action with the merger of a lien, that some of the courts have been led into the erroneous holding, that a judgment extinguishes the mortgage lien.

A suit of foreclosure is a remedy for the enforcement of a mortgage lien, and it ought not to be abridged by holding that the decree cuts down, rather than enlarges, the lien. Without a decree the lien continues for twenty years, and surely that which is meant to carry into effect this lien ought not to be allowed to have the effect of shortening the duration of the lien to a period one-half shorter than that for which it would continue without the decree. Upon principle it is, in our opinion, very clear, that although the judgment merges the mortgage as a cause of action, it does not abridge or extinguish

its lien.

Although there is some conflict in the authorities, we think the weight is with the doctrine, that the decree of foreclosure does not merge the lien of the mortgage. Counsel cite us to Freeman on Judgments, sections 215 and 216, but we think these sections afford appellant's theory no support. The author is speaking of the effect of a judgment upon the mortgage as a cause of action, not of its effect upon the lien created by the mortgage. There can not well be two opinions upon the proposition, that the mortgage as a cause of action is merged in the decree, and that all rights growing out of it as a right of action are merged in the judgment or decree. This, however, is not the point here in debate. In The People v. Beebe, 1 Barb. 379, it was held that the lien of the mortgage was merged in the decree, and this doctrine is stated approvingly in Gage v. Brewster, 31 N. Y. 218. These are the only cases to which appellant has referred, and we have found no others supporting the doctrine they declare.

There are many well-considered cases holding a doctrine different from that declared by those upon which appellant relies. In our own reports, we have the case of Lapping v. Duffy, 47 Ind. 51, where it was held that a judgment did not extinguish the lien of the mortgage. It is true that the case just cited did not pass upon the question as here presented, but the principle enunciated is substantially the same as that which must govern the case under examination. We have also the case of Teal v. Hinchman, 69 Ind. 379, where the same general doctrine is declared and enforced. In the case of Helmbold v. Man, 4 Whart. (Pa.) 409, the question was considered and decided adversely to the doctrine of the New York cases. It was there said: "The lien was created by the mortgage itself; the judg

ment neither added to, nor took anything from it; and it is clear, therefore, that the acts of Assembly, which require judgments creating liens or binding lands or real estate, to be revived every period of five years, for the purpose of continuing such liens, do not extend to or embrace the liens of mortgages, and can have no application to or bearing upon them whatever."

The rule, that the mortgage lien is not merged in the decree, is asserted by the Supreme Court of Iowa in two well-considered cases: Stahl v. Roost, 34 Iowa, 475; Hendershott v. Ping, 24 Iowa, 134. The same rule has long since been the settled law of Missouri. Riley's Adm'r v. McCord's Adm'r, 21 Mo. 285. Illinois has adopted and enforced a like doctrine. Priest v. Wheelock, 58 Ill. 114.

The rule, that the lien of the mortgage is not absorbed by the decree or judgment, is in harmony with settled general rules, while the opposite doctrine is in direct conflict with them. It is a rule of very frequent application, and upon which there is no contrariety of judicial opinion, that a mortgage lien is only extinguished by payment or release, and, with this rule, the doctrine that the decree does not merge the lien of the mortgage fully harmonizes; while the opposite rule is in direct and irreconcilable hostility to it. We have already adverted to the well known rule, that, as the lien of the mortgage is specific, while that of the judgment is general, the former is the superior. The doctrine, for which the appellant contends, that the lien of the judgment supplants that of the mortgage, can not be brought into harmony with the general rule just stated. There is a sharp and full conflict, but we deem it unnecessary to multiply illustrations. It is obvious that appellant's theory jars and conflicts with many settled principles; while the opposite theory agrees and harmonizes with all the great rules of law, except the technical one of merger, a doctrine neither important in its practical results, nor well supported by either reason or authority.

10 "The mortgage-deed, though in some senses merged in the decree, remains a muniment of the title which passed to the purchaser at the mortgage sale, and to be looked to, not only for the purpose of ascertaining the point of time at which the mortgage lien attached, but also (in the absence of express directions in the decree limiting the estate to be sold) the estate purporting thereby to have been conveyed by way of mortgage, as being in fee or otherwise." Wallace, C. J., in Vallejo Land Assn. v. Viera, 48 Cal. 572, holding that covenants of title implied by statute in a mortgage in fee enure to the benefit of the purchaser at foreclosure, passing a title acquired by the mortgagor after the execution of the mortgage.

OGLE v. KOERNER.

SUPREME COURT OF ILLINOIS. 1892.
140 Ill. 170.

On the 6th day of February, 1890, Gustavus A. Koerner and Timothy McCarthy filed their bill in chancery, in the Circuit Court of St. Clair county, alleging, in substance that, on the 13th day of October, 1886, Russell Hinckley was indebted to Benjamin Higgins, in the sum of $21,700; to Benjamin Smith in the sum of $12,728, and to Joseph Ogle in the sum of $20,000, and that being so indebted, he executed to each of his said creditors his two certain promissory notes, due in one and two years after date, for the amounts of his indebtedness to them respectively; that he was also indebted to Henry M. Needles, administrator de bonis non of the estate of John Short, deceased, in the sum of $10,000, and that on the same day he executed his promissory note for that amount, due two years after date; that to secure said notes to Ogle, Smith and Higgins, said Hinckley and wife, on the same day, executed and delivered to said Koerner, as trustee, their five deeds of trust on lands in the counties of St. Clair, Marion, Clinton, Fayette and Wayne, the trust deed on lands in St. Clair county conveying certain lands in said bill particularly described; that also on said day, said Hinckley and wife, to secure said note to Needles, executed and delivered to Koerner, as trustee, five similar deeds of trust, on the same lands, the deeds of trust in favor of Needles being made second and sub-. ject to the lien of those in favor of Ogle, Smith and Higgins.

The bill further alleges, that, at the February term, 1888, of the Circuit Court of St. Clair county, said Koerner exhibited his bill in chancery to foreclose the deeds of trust given to secure the indebtedness to Ogle, Smith and Higgins, and that said Needles, as junior mortgagee, was made a party defendant to said bill; that such proceedings were had in said foreclosure suit, that a decree was entered finding the facts as to the indebtedness to Ogle, Smith and Higgins, and to Needles, and as to the execution of said several deeds of trust, as above stated, and also finding the amount due to said several creditors, the amount found due on the Needles note and trust deed being $5,704.74; that said decree also found that, in June, 1887, said Hinckley and wife conveyed all of said lands, subject to the deeds of trust, to Willer H. Horner; also that Needles had assigned his note to certain parties, who, as the bill alleges, afterwards, and on the 6th day of August, 1889, assigned and transferred the same, with all their rights, claims, interest and equity of redemption thereunder to McCarthy, one of the present complainants.

It was further alleged that said decree ordered and adjudged that