RECENT CASES. 1 33 notified the lessee that he was not thereby discharged from liability,) was not invoked. And it would seem that the collection of wharfage by the lessor, after the abandon- ment, apparently on its own account, was as inconsistent with its recognition of the continuance of the lessee's term as the creation of a new tenancy would have been. The correctness of the decision, which depends upon the validity of this distinction, seems at least doubtful. Property — Mortgages — Merger — Bona Fide Purchaser. — A mortgagee acquired the title to the mortgaged property, and, in the deed by which it was conveyed to him, it was stated that the title was passed "subject to a mortgage of three hundred dollars, which grantee hereby assumes and agrees to pay," Held, that it was evident from this that the intention was to continue the existence of the mortgage lien, and no merger ensued ; and that exhibiting the unrecorded deed to intending purchasers of the property, combined with the fact that the records disclosed the encumbrance, con- stituted sufficient notice to such parties of the intention indicated by the clause in the deed. Mathews et al. . Jones, 66 N. W. Rep. 622 (Neb.). This case is apparently very near the line, but may be supported. It is a general rule of law that a merger takes place when a greater and a lesser estate meet in the same party; but in equity, whenever the legal title becomes united with the equity of redemption, there will be no merger, if such is the intention of the parties. Even, however, where there is an expressed intention, especially if it be vague or doubtful, the courts will presume the intention to be in accordance with the real interest of the parties, and will rule accordingly. Jones on Mortgages, §§ 848, 856, 870, 873 ; per Sir William Grant, in Forbes v. Moffatt, 18 Ves. 384. The clause "subject to a mortgage," etc., in the deed, seems to indicate the intention of the parties in the principal case that the titles should be kept separate ; and the fact that in Nebraska, as in most of the States, a mortgage is regarded as a lien, and not as an estate in fee, does not ap- parently affect the rule as to merger. The court would seem to be right too, in hold- ing that the plaintiffs, in obtaining the title to the land, were not bona fide purchasers. They certainly had such notice as required them to make further inquiry in regard to the whereabouts of the mortgage and notes, and should have required the mortgagee to produce them before purchasing. Jones on Mortgages, § 872. See also Purdy v, Huntington, 42 N. Y. 334. Property — Mortgage — Statute of Limitations — Effect of Removal. — A executes to B a promissory note secured by mortgage. A then sells the mortgaged property to C. After the statute has run on the note, A renews to B his promise to pay. Later C sells to D. Held, the original mortgagor cannot by his second promise affect the rights of D. The latter takes clear of encumbrance. Cook v. Prindle, 66 N. W. Rep. 781 (la.). Assuming, as the court does, that when a debt is barred by the statute the mortgage is thereby discharged, the decision seems sound. But this view of a mortgage is quite exceptional. A few of the Western States have adopted it, sometimes owing to the peculiar language of the Statute of Limitations, as in Iowa, and sometimes owing to their conception of the nature of a mortgage, which, they hold, does not convey an estate, but simply creates a lien. Regarded in this light, the mortgage becomes a mere incident to the debt, and when the remedy on the debt is taken away, the mortgage also disappears. Jones on Mortgages, 5th ed., §§ 1203, 1204, 1207, discusses the question fully, collecting the authorities and giving the jurisdictions in which the Iowa rule prevails. Public Officers — Treasurer's Liability on his Bond. — Held^ that a county treasurer is liable for money lost by reason of the failure of the bank in which it was deposited, though due care was used in its selection. Fairchildv. Hedges, 44 Pac Rep. 125 (Wash.). Contra, that there is no liability in such a case without negligence. State V. Copeland, 34 S. W. Rep. 427 (Tenn.). See Notes. QuASi-CoNTRACTS — Money Paid on Judgment Subsequently Reversed. — Held, that money voluntarily paid to satisfy a judgment which was subsequently reversed cannot be recovered back, where it appears that the original claim was just, a!id that the judgment was reversed for a mistake in procedure. Teasdale v. Stoller, 34 S. W. Rep. 873 (Mo.). The case illustrates the equitable nature of this form of action. It is settled that ordinarily one can recover money he has been forced, by levy of execution, to pay on a judgment which is subsequently reversed. Clark v. Finney, 6 Conn. 297 ; Keener on Quasi-Contracts, 417-419. So when the money has been voluntarily paid. Lott v. Swezey, 29 Barb. 87 ; Sr holey v. Halsey, 72 N. Y. 57S ; but see, contra, Gould . McFall, 1 18 Pa St. 45^. The right of recovery is ba^^ed on the fact that it is against conscience for the defendant to retain the money. Hence, where, as in the principal case, it ap-
