Polk v. Reynolds

Alvey, J., delivered the opinion of the Court. In this case the decree appealed from must be affirmed; the appellants wholly failing to show any right or title in themselves, and the case falling within the principle of Polk vs. Rose, 25 Md., 153 . It has been insisted by the counsel for the appellants, that the leasehold interest of Huntt had been surrendered to Hamilton, the lessor and mortgagee, before the assignment by the latter to the appellee, and that by such surrender, and the union of the legal and equitable title in the same person, the mortgage had become merged and extinguished, and, consequently, the appellee acquired no right to entitle him to institute and maintain this proceeding. But upon examination of the record, we have discovered no sufficient evidence of such surrender of the leasehold interest, either by Huntt himself, or by any person claiming by assignment under him.

That interest, subject to the mortgage, would appear to have been at the time of the institution of these proceedings, still outstanding. Nor would it have followed, as a necessary consequence, if the evidence had shown that Hamilton had acquired the leasehold interest of Huntt, that the mortgage charge thereon would have been extinguished. Eor it is now well settled, that a person becoming entitled to an estate, subject to a charge for his own benefit, may, if he elect so' to do, and manifest such election, take the estate and keep up the charge. And a Court of Equity will sometimes hold a charge extinguished, when, by the strict rules governing the subject at law, it would be regarded as subsisting ; and sometimes preserve it, where at law it would be merged.