Reed vs. Latson and others, 15 Barb. 2

By the Court, Willard, P. J. The position taken by the defendants’ counsel, that the mortgages sought to be foreclosed have become inoperative by reason of merger, cannot be maintained. To constitute a merger, the greater and less estate must meet and coincide in the same person. In such case, it is admitted, that at law, the less estate is immediately annihilated. But this rule is not inflexible, in equity. In that court it depends on the intention of the parties, and a variety of other circumstances, whether a merger shall take place or not. (See James v.

Morey, 2 Cowen, 246; 7 Paige, 50; 8 Id. 182,186.) In the present case the two estates did not unite in the same person. Assuming the answer to be true, the sheriff’s deed of the equity of redemption was- not given to the plaintiff, the mortgagee. He held indeed the sheriff’s certificate by assignment, a short time, hut transferred it to another, to whom the deed was given. Whether this transfer was with or without consideration is immaterial. The two estates never for a moment met in him, and consequently there was no merger.

Again; the sheriff’s sale and conveyance which the defendants contend operated as a merger, took place prior to the time when the defendants, Fowler and Billings, purchased the land covered hy the mortgage. The answer itself admits that they agreed to take a conveyance from Latson of the premises in question, subject to the §8000 mortgage, in part payment for their houses and lots in Twenty-second-street; and they admit that Latson gave them a deed of the said premises, in pursuance of that agreement.

It does not rest in their mouths to set up a merger, after making a purchase expressly subject to the mortgages. [See James v. Morey, 2 Cowen, 246.) The counter claim set up by way of offset or recoupment, against the mortgages, is equally untenable. There are no facts stated in the answer which show that the defendants have any claim against the plaintiff. A counter claim must be one existing in favor of a defendant and against a plaintiff, between whom a several judgment might be had in the action, and arising out of one of the following causes. 1.

A cause of action arising out of the contract or transaction, set forth in the complaint as the foundation of the plaintiff’s claim, or connected with the subject of the action. 2. In an action arising on contract, any other cause of action arising also on contract, and existing at the commencement of the action. (Code of 1852, § 150.) If the defendants have a claim against any person, it was against Lat-son. The plaintiff was no party to the agreement. It is not pretended that he made any representations, true or false.

The only fact alleged is, that in fulfilling their agreement, the defendants, instead of conveying their houses .in Twenty-second-street to Latson, as by the contract they were bound to do, conveyed them to the plaintiff, by the direction of Latson. That fact did not make the plaintiff a party to Latson’s fraud. Again; the counter claim set up had not the slightest connection with the mortgages sought to be foreclosed.

They were made, the one in 1846, and the other in 1847, more than three years before the defendants conveyed their houses in Twenty-second-street to the plaintiff, and of course a like time before the commission of the fraud of which the defendants complain. The consideration of the mortgages is not impeached. The transaction with respect to them is not shown to have led to the subsequent bargain between Latson and Fowler and Billings, or to have any connection with them. This case is entirely different from Van Epps v.

Harrison, (5 Hill, 63.) The action there was upon the bond accompanying the mortgage given for the purchase price of certain lots, and the fraud set up was alleged to have been perpetrated by the obligee in relation to the same lots. It was all a part of one and the same transaction. But in the present case the defendants seek to repudiate an express agreement made by them to purchase land subject to the mortgages, on account of a fraud practised upon them, more than four years after the mortgages were given, and by a person other than the plaintiff. This cannot be done.

The answer shows no cause of action against the plaintiff. If Latson cheated the defendants, it affords no reason why the plaintiff should not recover judgment of foreclosure on the mortgages set up in the complaint. The plaintiff might have demurred to the answer. That was an appropriate remedy, and he would have been entitled to judgment. But leave might have been granted to the defendants to amend. The court gave the defendants their election of a judgment as upon a demurrer, but they declined it. They have no ground therefore to complain that it was stricken out. The 152d

section of the code of 1851, empowers the court to strike out either sham or irrelevant answers. Brown v. Jenison, (3 Sandf. S. C. R. 732,) was decided under the code of 1849, when

section 152 only applied to sham answers. The remedy for a frivolous defense was under

section 247, to move for judgment thereon. But probably the court always had the power of striking out a frivolous pleading, as they clearly had a sham pleading. (Steward v. Hotchkiss, 2 Cowen, 634. Brewster v. Hall, 6 Id. 34. Oakley v. Devoe, 12 Wend. 196. Broome County Bank v. Lewis, 18 Id. 565. Lowry v. Hall, 1 Hill, 663. Heaton v. Bartlett, 13 Wend. 672. Melville v. Hazlet, 18 id. 680.) The foregoing cases 'show what the practice was before the code. The case of Nichols v. Jones, (6 How. 355,) before Barculo, J. and Harlow v.

Hamilton, (Id. 475,) before Willard, J. show what the practice is under the code. [Schenectady General Term-, January 3, 1853. Willard, Hamd, Cady and C. L. Allen, Justices.] It is no objection to the motion that the answer was verified. In Mier v. Cartledge, (8 Barb. 75,) the general term in Hew-York held that a sham answer which was verified could not be stricken out on motion. Mr. Justice Edmonds concludes his review of the cases by saying, that when a pleading is verified aS required by the code, a motion to strike it out as false, cannot be entertained.

We are not called upon to question that opinion here, because the motion was not granted on the ground of the falsity of the answer, but its frivolousness. Hone of the reasoning of Judge Edmonds applies to this case. The truth of the matter stated was not in issue. The affidavit of verity under the code, had no tendency to make that material which was palpably f rivolous. The order of the special term is affirmed, with ten dollars costs.