majority">WAGNER, Judge,

delivered the opinion of the court.

The facts in this case are similar to those in the case of Atkinson v. Stewart, ante, p. 510, except that in Stewart’s case the deed of trust was to secure the payment of purchase money, and was paid off and discharged by the assignee out of the assets of the estate of the husband. In this case the deed of trust signed and acknowledged by the wife was to secure a certain sum of money borrowed by the husband, and the purchaser at the assignee’s sale bought the property subject to the encumbrance, and paid off the same during the lifetime of the husband, and entered satisfaction on the record. After payment of the debt and acknowledgment of satisfaction on the record, the purchaser at the assignee’s sale conveyed the property to the defendant, who is now resisting this suit. The question is whether the payment of the debt and entry of satisfaction by the purchaser was such an extinguishment as enabled the widow to claim her dower.

There may be cases in which the purchaser of an equity of redemption, by paying the mortgage debt and taking an assignment of the mortgage, can protect himself against tho demand for dower, and the widow will only be allowed to come in by proceedings in equity, and contributing her proportionate share toward the extinguishment of the legal charge. But in the present case the purchaser, without any assignment or attempt to keep the mortgage alive, paid it off absolutely and unqualifiedly; and as no mistake is alleged or pretended in the cancellation or entry of satisfaction, it was effectually dead and incapable of being used for any purpose.

The case of Eaton v. Simonds, 14 Pick. 98, is in point. It was a bill in equity, and the complainant had joined with her husband in mortgaging a portion of his estate. The equity of redemption *518was afterward sold to tbe defendant on an execution issued against the mortgagor, and the defendant during the lifetime of the mortgagor having paid the amount due to the mortgagee, claimed an assignment of the mortgage; but the mortgagee declaring that an assignment would be unnecessary, the mortgage was discharged upon the margin of the record in the registry of deeds.

It was held that this discharge was an extinguishment of the mortgage and not an equitable assignment, and that the widow was entitled to dower in the land free from the encumbrance of the mortgage.

Wilde, J., in delivering the opinion of the court, disposed of the question arising upon the discharge of the mortgage, as follows: “But this discharge, the defendant’s counsel contend, will operate as an equitable assignment, as it was so intended to operate by the parties, and that the union of the legal and equitable titles may well exist without producing the effect of a merger or the extinguishment of a mortgage. Perhaps this might be so if the discharge could be considered as an assignment of the mortgage. The general principle is, that w'hen the purchaser of a right to redeem takes an assignment, this shall or shall not operate as an extinguishment of the mortgage, according to what the interest of the party taking the assignment may be, and according to the real intent of the parties. (Gibson v. Crehore, 3 Pick. 482.) But Chief Justice Savage remarks, in the case of Coates v. Cheever, 1 Cow. 460, “ that the spirit of the case seems to bo this: that where the tenant in possession enters by virtue of a purchase from the mortgagor, then the subsequent purchase of the mortgage by him is an extinguishment. And that case was decided upon that principle. The same principle is laid down in James v. Morey, 2 Cow. 301, and in other cases; Forbes v. Moffatt, 18 Ves. 390; Gardner v. Astor, 3 Johns, Ch. 53.

The rule at law is inflexible, that where a’greater and a less estate meet and coincide in the same person, in one and the same right, without any intermediate estate, the less estate is immediately annihilated or merged; and the same rule applies to the union of the legal estate with the equitable interest. But this *519rule is not inflexible with courts o£ equity, but will depend on the intention and interest of the person in whom the estates unite.

In the present case, however, the doctrine o£ merger is not applicable, for the estate in the mortgage of William Eaton was never assigned to the defendant and never vested in him, so that it could not unite with the equitable title in him so as to operate as a merger. But this mortgage has been legally discharged; the debt has been paid, and could no longer be set up as a subsisting title either at law or in equity.”

It makes no difference that the defendant was advised and supposed that a discharge of the mortgage would be equally beneficial to him as an assignment. This was a mistake which this court has no power to correct. (Runyon v. Stewart, 12 Barb. 537, also in point.) In the case- at bar there was no foreclosure or sale of the premises under the deed of trust, the equity of redemption was sold by the assignee, and the purchaser, without taking any assignment, paid off the mortgage debt and extinguished the legal encumbrance. This extinguishment effectually destroyed the relinquishment and left the wife’s right of dower in full force. As remarked in the case of Atkinson v. Stewart, we do not think that the doctrine of subrogation is applicable to these cases; and it may be further said that the ' common-law principles by which dower is obtained and lost, and to which most of the authorities cited by the counsel for the appellant refer, have been essentially modified by our statute.

From the best consideration we have been able to bestow upon the subject, we are of the opinion that the judgment of the court in awarding dower should be affirmed. . Some minor points have been discussed, but their decision can not change the result, and we deem it unnecessary to examine them.

Judgment affirmed.

The other judges concur.

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