¶1The Court of Errors reversed this decision, Woodworth, J., Sutherland, J., and Savage, Ch. J., all delivering opinions in ■favor of reversal, and holding:
¶21. That the rule as to merger, though inflexible at law ■was not so in equity.
¶32. That the mortgagee, in this case, having elected by the assignment of the bond and mortgage, to keep the equitable and legal estates, distinct, the plaintiff acquired a good title to them, as assignee, and was entitled to a priority as assignee for the amount due to him.
¶4took a somewhat different view, as to the three-fourths bought in by Wattles himself, holding that Morey’s deed not being recorded as a mortgage, but as an absolute 'deed, must be considered as an unregistered morí*385gage, and that as the parties were equal in point of negli- <- .gence, the rule prior in tempore, potior in jure, must apply.