The opinion of the court was delivered by
This was a contest for priorities between the holder of a tax lien and the holder of a mortgage lien on real estate. Judgment went in favor of the former, and the latter has prosecuted error. The defendant in error the Stock Exchange Bank had been the owner of the property, which had been *88sold for taxes. The defendant in error C. W. Cupp was a tenant of the bank, but was not under obligation to pay the taxes. On January 80 he purchased the tax-sale certificate, and the following July “became entitled to and received a tax deed. On February 3, four days after purchasing the certificate, he made a settlement with the bank for rent due and to become due, for his occupancy of the property, and gave his note for the amount. The bank, foreseeing at that time that a tax deed would presently issue to Cupp and his relation as its tenant terminate, promised to make him a present of a quitclaim deed of the property. The deed was executed on the day mentioned, February 3, but was not delivered until the following May.
The plaintiff, Oilman, the mortgagee, instituted an action to foreclose his mortgage. The tax deed to Cupp was invalid because of irregularities in the tax-sale proceedings and was held to evidence a lien for taxes only and not a title. The plaintiff contended that Cupp’s lien for taxes, the inferior interest held by him, had become merged in the superior title acquired by him by deed from the bank. Whether it had merged is the sole question in the case. We .think it had not. The question whether an inferior estate or lien merges in a superior one is a question .of intention. It cannot be said to be a rule that the act of a person holding an estate or lien in acquiring ¡another and adverse one merges the lesser in the ¡greater. If it be to his interest to maintain the two ¡as separate, equity will not infer an intention to ! merge from the mere fact of a conveyance of the conflicting claims, but will hold the two to be separate. (2 Pom. Eq. Juris. § 788, et seq.)
Now in this case the lien for taxes which the law *89gave, failing the validity of the tax deed, was paramount to the mortgage lien, but the title acquired by deed from the bank was subject to the mortgage. It was unavailing as against the plaintiff’s foreclosure action. It hardly can be supposed that Cupp, by his mere acceptance of the gift of a quitclaim deed from the bank conveying a title which constituted no defense against the mortgage, intended to abnegate his claim for taxes, which constituted a charge on the land superior to the mortgage.
In the summary of facts above made ultimate conclusions only and not evidentiary matter were stated, and the plaintiff in error mentions one or two circumstances tending to show an intbnt on the part of the defendant in error to merge the two interests. The court, however, on evidence partly oral, found to the contrary of the claimed intent, and this finding concludes us in the lack of undisputed facts showing it to be erroneous. Even if we were required or were'at liberty to examine and weigh the evidence as to intention, our conclusion would be, we think, the same as that of the court below. One of the circumstances adverted to by plaintiff in error as an evidence of intent to merge seems to us to point to the contrary. It is that Cupp took the assignment of the tax-sale certificate in the name of an agent and afterward directed it to be transferred to his wife, which was done. It would appear from this that he contemplated the possibility of a merger and sought to maintain a separation of interests by a show of appearances.
The judgment of the court below is affirmed.
Johnston, Smith, Greene, JJ., concurring.