By contrast, the quitclaim scenario makes the lender owner of the property and, under the doctrine of merger, it takes title subject to these interests. See Sanderson v. Hudlett, 832 So.2d 845, 848 (Fla. 4th DCA 2002) ( citing Gourley v. Wollam, 348 So.2d 1218, 1220 (Fla. 4th DCA 1977); accord Washington Furniture Co. v. Potter, 188 N.C. 145, 124 S.E. 122 (1924)). A worse fate awaits the lender if the quitclaimed property is subject to environmental contamination.
Intent can be inferred from the actions of the relevant party.Sanderson v. Hudlett, 832 So. 2d 845, 848 (Fla. 4th DCA 2002) (citing Gourley v. Wollam, 348 So. 2d 1218, 1220 (4th DCA 1977)).Westbury Props., Inc. v. Cardillo, 638 So. 2d 519, 521 (Fla. 2d DCA 1994).
”); Prudential Ins. Co. of Am. v. S.S. Am. Lancer, 870 F.2d 867, 871 (2d Cir.1989). FN15. Sanderson v. Hudlett, 832 So.2d 845, 848 (Fla. 4th DCA 2002) (citing Gourley v. Wollam, 348 So.2d 1218, 1220 (4th DCA 1977)). FN16. Westbury Props., Inc. v. Cardillo, 638 So.2d 519, 521 (Fla. 2d DCA 1994).
Stated another way, an essential prerequisite of a merger is that the party having both legal and equitable interests have the intention that the interests should merge. See, 55 Am. Jur. 2d Mortgages 1258 (1971); Lampert Yards v. Thompson-Wetterling Const. Realty, 302 Minn. 83, 223 N.W.2d 418 (1974); Gourley v. Wollam, 348 So.2d 1218 (Fla. App. 1977). Nebraska agrees.
It is the intention of the mortgagee that is controlling.Overland-Wolf, Inc. v. Koory, 183 Neb. 611, 614, 162 N.W.2d 889, 890-91 (1968) (citations omitted); accord Gourley v. Wollam, 348 So.2d 1218, 1220 (Fla.App. 1977); Stimpson v. Pease, 53 Iowa 572, 574, 5 N.W. 760, 762 (1880); Sylvania Sav. Bank Co. v. Turner, 27 Mich. App. 640, 644-45, 183 N.W.2d 894, 896 (1970); Bahrs v. Bastian, 192 Wis. 642, 644, 212 N.W. 292, 293 (1927); 59 C.J.S. Mortgages § 441(a), at 681-82 (1949) ("merger has been denied even where the conveyance was admittedly made in satisfaction and cancellation of the indebtedness"). Thus, the mortgagee's intent controls.
"[A] transfer of the interest of a mortgagor in mortgaged property to a mortgagee generally operates as a merger of the legal and equitable estates which results in a discharge of the mortgage and a satisfaction of the debt." Gourley v. Wollam, 348 So.2d 1218, 1220 (Fla. 4th DCA 1977). But this is not always and necessarily the result.
Whether the mortgage is merged and the debt extinguished when the mortgagee accepts a return of the mortgagor's interest in the mortgaged property depends upon the intent of the mortgagee. Gourley v. Wollam, 348 So.2d 1218, 1220 (Fla. 4th DCA 1977) (citing Jackson v. Relf, 26 Fla. 465, 8 So. 184 (1890)). The mortgagee's intention is to be determined "by his declarations at the time, or, in the absence of these, by his interest, as shown in the condition of things then existing, or by the attending circumstances."
Key Bank and C.T.W. executed a written document evidencing the intent of the parties to execute an assignment of the mortgage, for the purpose of keeping the mortgage intact. See Ennis v. Finanz Und Kommerz-Union Etabl., 565 So.2d 374 (Fla. 2d DCA 1990); Gourley v. Wollam, 348 So.2d 1218 (Fla. 4th DCA 1977). C.T.W. is therefore entitled to be subrogated to the position of first mortgagee. One who discharges an obligation is usually entitled to subrogation if he is not merely a volunteer.
The presumption is against such a merger. See Gourley v. Wollam, 348 So.2d 1218, 1220 (Fla. 4th DCA 1977). See also Jackson.
The merger results in a discharge of the mortgage and a satisfaction of the debt. However, in Gourley v. Wollam, 348 So.2d 1218, 1220 (Fla. 4th DCA 1977), this court citing Jackson v. Relf, 26 Fla. 465, 8 So. 184 (1890) said: When a mortgage on lands and the equity of redemption in the same lands have become united in the same person, ordinarily the mortgage is merged, — in other words, ceases to be an incumbrance, — and the owner will hold the lands with an unincumbered title, if there be no other mortgage or lien.