Upon the exceptions the court are of opinion that the direction was incorrect.

The respondent had a deed from Adams, now alleged to have been fraudulent, as intended to defraud creditors, but good as between the parties. By a subsequent deed the respondent procured a release or discharge, or an assignment, from Gates, of a mortgage admitted to be good. We are of opinion that this instrument was, under the circumstances, a good assignment. The words “ cancelled and discharged ” are controlled by the statement that the grantee had recently acquired the equity of redemption. If the conveyance of the equity had been good, the mortgage assigned and the equity of redemption would have merged; but if the creditors interfere and take the equity, then there is no merger, and the equity and the mortgage are still distinct. If this mortgage is good, then the title of the respondent to the whole estate under his mortgage is paramount to any title the petitioner can have, and the petition for partition cannot be maintained. Exceptions sustained.