The fact that but for the subordination agreement the Mock Homes mortgage would be subsequent does not avoid the application of the equitable principle of placing the parties in the position contemplated by plaintiffs and giving effect to the subordination agreement. Lawton v. McIlvaine, 113 Fla. 743, 152 So. 179 (1934). In the present case, in order to avoid prejudice to the contemplated positions of the parties, we must consider the entire escrow arrangement, not only the subordination agreement but the provisions of the deed of trust.
When a mortgage on land and the equity of redemption in the same lands become united in the same person, ordinarily the mortgage is merged and the same ceases to be an incumbrance and the owner will hold the lands with an unincumbered title, if there be no other mortgage or lien. See Jackson v. Reif, 26 Fla. 465, 8 So. 184; Lawton v. McIlvaine, 113 Fla. 743, 152 So. 179; Dolan Properties, Inc., v. Vonnegut, 133 Fla. 854, 184 So. 757. The record in this case has been carefully studied, the briefs of counsel for the respective parties have been considered, and the authorities examined, and we have concluded that there is no error in the record and the decree appealed from should be and the same is hereby affirmed.
The intention and interest of the party who unites the two estates in himself will determine whether or not a merger takes place. Jackson v. Relf, 26 Fla. 465, 8 So. 184; see Lawton v. McIlvaine, 113 Fla. 743, 152 So. 179. Where an incumbrancer, by mortgage or otherwise, becomes the owner of the legal title, a merger will not be held to take place if it be apparent that it was not the intention of the owner, or if, in the absence of any intention, the merger was against his manifest interest. Jackson v. Relf, 26 Fla. 465, 8 So. 184.
However, the joinder of both legal and equitable title in one person does not always have that result. The intention of the party who unites the two estates in himself is determinative of whether a merger results or not. Jackson v. Relf, 26 Fla. 465, 8 So. 184 (1890); Lawton v. McIlvaine, 113 Fla. 743, 152 So. 179 (1934); Fay v. Lougee, 113 Fla. 784, 153 So. 91 (1934); Friedman v. Pohnl, 143 So.2d 690 (Fla. 3d DCA 1962); 22 Fla.Jur., Mortgages, ยง 535. As the Supreme Court of Florida stated in Relf: