21 Colo. 54 | Colo. | 1895
delivered the opinion of the court.
The finding of the court below that the allegations of fraud were not sustained is amply supported by the testi
Ib further appears that The Comet Consolidated Mining Company, in good faith, attempted to carry out the agreement on its part, and, after the default of Matthews, Webb and Dillingham, continued working the property and incurred an indebtedness aggregating upwards of $7,000, which it was unable to pay, and for which the property was after-wards subjected to sale under the Hudson and Frost judgments, and through which sales The Roswell Mining Company claimed its title to the property.
Appellant was notified in December, 1882, that such a transfer or disposition of its property was contemplated, and that, if consummated, the personal stock received by Sharp in the new company would be held as security for the payment of this indebtedness; and on March 27, 1883, he was notified that the transfer had been made, and that Sharp, in pursuance of his previous agreement, would assign as collateral security to him and the other parties holding the notes of The Upper Platte Mining and Smelting Company $20,000 worth of his stock in the new company. He made no objection to the transaction at that time, and afterwards, on May 19, 1884, attempted, in his suit against The Upper Platte Mining and Smelting Company, to subject the stock of The Comet Consolidated Mining Company, given as a consideration for
But for a further reason we are clearly of the opinion that appellant cannot maintain this action. The Le Bert attachment was levied upon the property thirteen days prior to his levy. The judgment Le Bert obtained against The Upper
We cannot agree with counsel for appellant that the purchase of the Le Bert judgment by Brown operated as a satisfaction and extinguishment of that judgment. The purchase of a prior charge or incumbrance upon property, by one who claims the ownership in fee, does not in equity merge such charge or incumbrance. The rule in such cases is well stated by Pomeroy, in his work on Equity Jurisprudence, section 791:
“ The equitable doctrine concerning the merger where the owner of the fee becomes entitled to the charge or incumbrance, may be stated as follows, substantially in the language of most eminent judges. Sir William Grant says: ‘The question is upon the intention, actual or presumed, of the person in whom the interests are united.’ Sir George Jessel says: ‘ In a court of equity it has always been held that the mere fact of a charge having been paid off does not decide the question whether it is extinguished. * * * If there is no reason for keeping it alive, then equity will, in the absence of any declaration of his intention, destroy it; but, if there is any reason for Iceeping it alive, such as the existence of another incumbrance, equity will not destroy it.’’ In short, where the legal ownership of the land and the absolute ownership of the incumbrance become vested in the same person, the intention governs the merger in equity. If this intention has been expressed, it controls; in the absence of such an expression, the intention will be presumed from what appear to be the best interests of the party as shown by all the circumstances ; if his interests require the incumbrance to be kept alive, his intention to do so will be inferred.”
“ When an owner of the premises who is not personally and primarily liable to pay the debt secured, pays off a mortgage or other charge upon it, he may keep the lien alive as a security for himself against other incumbrances or titles, and thus prevent a merger. Whether he does so, is a question of intention governed by the rules laid down in the previous paragraphs.’
The intention of the parties purchasing the Le Bert judgment to prevent a merger is clearly evidenced by the terms of the assignment by which it was transferred. It therefore follows that whatever title remained in The Upper Platte Mining and Smelting Company to the property in question was, through these proceedings, subjected to sale under an attachment prior to that of appellant, and became vested, by the sheriff’s deed, in Brown, and through him in Welch or The Plymouth Rock Mining and Smelting Company, which had theretofore been vested with the title conveyed by the sheriff’s deeds in pursuance of the sales under the Hudson and Frost judgments.
We think, therefore, upon either of the foregoing propositions, the court below properly dismissed the action at plain- • tiff’s costs. The judgment is therefore affirmed.
Affirmed.