concurrence">Ingraham, J. (concurring):

I concur with Mr. Justice Laughlin. By the conveyance of the mortgaged property to the mortgagee —but for the covenant in the deed — the mortgage would have merged in the fee; but it does not follow that the obligation on the bond would have been destroyed. The estate of the mortgagee being a lesser estate than the fee and the same person being seized of both estates, the lesser necessarily merged in the greater. The covenant, however, prevented that merger so that at law the plaintiff owned the entire estate, but in equity the mortgage still remained an existing lien. The fact that it remained a lien necessarily involved the continuance of the obligation upon the bond, for there could be no lien except to secure the payment of an existing indebtedness, and that indebtedness was represented by the bond. It would seem, therefore, that at law the obligation of the bond still existed. Hpon the conveyance of the mortgaged premises by the mortgagor, however, it became the primary fund for the payment of the mortgage ; but the right of the mortgagee to resort to the bond for the payment of the debt was not affected or impaired by the conveyance. (Calvo v. Davies, 73 N. Y. 211.) It was held also in that case that the mortgagor could not, by any dealings or contract with a third party, change the right of the creditor to proceed on the bond or compel him to resort in the first instance to the land. But here the deal*746ings were between the mortgagor and the mortgagee, and the mortgagee by accepting the conveyance of the land, but retaining the lien of the mortgage, was bound in equity to proceed to foreclose that lien before resorting to the obligation of the mortgagor upon the bond. I think, therefore, that there was a good equitable defense to a suit upon the bond until the plaintiff had exhausted his remedy upon the land, the primary security, and that defense having been set up in the answer the court was justified in postponing the enforcement of the bond until the mortgagee had exhausted his remedy as against the primary security for the payment of the mortgage.

Judgment affirmed, with costs.

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