The only specification is that the court erred in instructing the jury to find a verdict for the plaintiffs for the full amount of their claim, including the attorney fee.

We find no error in this instruction. Equitable merger is largely of intent, actual or presumed, and when no intent is proven or apparent, this principle may not be deemed to attach in any given case, just as merger is or is not to the interest of the owner of the several and independent rights: Richards v. Ayres, 1 W. & S. 485. The doctrine of merger is well stated by Sir William Grant in Forbes v. Moffatt, 18 Vesey, Jr., 390, as follows: “ It is very clear that a person becoming entitled to an estate subject to a charge for his own benefit may, if he chooses, at once take the estate and keep up the charge. Upon this subject a court of equity is not guided by the rules of law. It will sometimes hold a charge extinguished when it would subsist at law, and sometimes preserve it when at law it would be merged. The question is upon the intention, actual or presumed, of the person in whom the interests are united. In most instances it is, with reference to the party himself, of no sort of use to have a charge on his own estate, and when that is the case it will be held to sink unless something shall have been done by him to keep it on foot.”

*98There is nothing to show that the plaintiffs intended a merger. On the other hand, the terre tenant, who is the appellant here, took the property expressly subject to the entire mortgage of two thousand dollars. He must be presumed to have retained that much of the purchase money in his hands to meet the mortgage.

Judgment affirmed.