274 HARVARD LAW REVIEW. Lord Campbell, in Beamish v. Beamish, 9 H. L. Cas. 274. Theoretically, too, it is generally recognized that parties cast away on an unknown island could marry according to their own forms. Granted that all other conditions to a valid marriage are present, it is hard to discover in what way the presence of fraud upon the home law can be of any effect. It is punishable, but it cannot change the environment on which validity depends. See it Harvard Law Review, 546. How- ever this may be, the court would have been more clearly correct had they based their decision on the admitted principle that a ship carries with it the law of its State. Crapo v. Kelly, 16 Wall. U. S. 610 ; McDon- ald v. Alallory, 77 N. Y. 546. By this principle the parties were practi- cally married in California, and were subject to the State laws. Merger of Charges. — When there have been successive mortgages upon land and the first mortgagee buys up the first equity of redemption, it is of practical value to him to know whether that mortgage is extinguished. If it be extinguished, the second mortgagee has a first charge for which the land is liable ; if, however, the first may still be regarded as existing, the second mortgage remains a second. When the land is not of suflScient value to satisfy both incumbrances the importance of the question is ap- parent. Equity, in accordance with sound justice, laid down the rule that when a charge, of any nature, vests in the owner of the property subject to that charge though prima facie it is merged, yet it may be regarded as existing if the holder has expressed an intention to that effect, and, in the absence of evidence of an intention, the court will consider what is most advantageous for him. Forbes v. Moffatt, 18 Ves. Jr. 390. But equity will not aid fraud, so there came a modification, — that a mort- gagor who pays off the first charge cannot hold his extinguished debt as a shield against a second incumbrance. With this modification, Forbes v. Moffatt is still the law in the United States. James v. Moray, 2 Cow. 246 ; Factors, dvr. Ins. Co. v. Murphy, 11 1 U. S. 738. In England, however, the case of Toulmin v. Steere, 3 Mer. 210, de- clared that this modification extended to a purchaser of the equity of redemption, and that if he later obtained the mortgagee's interest in the land, he might not keep it alive to defeat the claim of a second incum- brance of which he had notice. The ground taken was that the purchaser with notice from a mortgagor should not be in a better position than the rriortgagee. But it seems clear that he stands in a different relation to the mortgagor. He is not a debtor ; he is not attempting to set up an extinguished debt. He paid for the mortgagor's rights in the land, and there is no reason why the second mortgagee should have his claim turned into a first mortgage by a transaction to which he is a stranger, in which no such result was intended by the parties. This is, indeed, the typical case where equity will interfere according to Forbes v. Moffatt, and the later decision is the more remarkable because the opinions in both cases were delivered by Sir William Grant, M. R. The new doctrine was often adversely criticised, then entirely meta- morphosed by Jessel, M. R., in Adams v. Angell, 5 Ch. D. 646, who ex- plained that its application was limited to cases where there was no evidence of intention in regard to merger. Even thus restricted, the doctrine was at variance with Forbes v. Afoffatt, and continued to be dodged and ignored until Liquidation Estates Purchase Co. v. Willoughby,
