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any intermediate estate, the less is annihilated or is said to be merged, that is, sunk or drowned in the greater. (2 Black. Com. 177.)
Merger is the act of the law, by which the less of two vested estates is extinguished, by uniting in the same person in the same right, without any intermediate estate. The object is to accelerate the estate in which the merger takes place. The estate in which the merger takes place is not enlarged by the accession of the preceding estate. After the merger, the only subsisting estate continues precisely of the same quantity and extent of ownership as it was before the accession of the estate which was merged. Thus if the owner of the reversion in fee, depending on an estate for years, acquires the title of the tenant for years, the two estates are blended into one. The estate of the reversioner in fee is not enlarged, because he has still only a fee, but the possession is accelerated by the annihilation of the estate for years. He is not said to have a fee simple and an estate for years, but a fee simple only, with the right of immediate enjoyment.
We cannot, in a single chapter, discuss at much leugth the doctrine of merger. It has been very fully treated by Mr. Preston in his treatise on merger, to which we are greatly indebted for the following pages on this subject. We shall therefore bring together, in successive sections, some of the leading principles on the subject, and incorporate with them such decisions of our own courts as may seem to be material.
Of the difference between Merger and certain Acts of Law
analogous to it.
There were at common law five different acts of law, which resembled each other in many respects, but which were still distinguishable from each other. They were merger, suspension, extinguishment, discontinuance and remitter.
Merger, we have already seen, is the extinguishment by act of law of one estate in another, by the union of the two estates in the same person, in the same right, without any intermediate estate. The term estate in this definition must be understood in its technical meaning; as being the interest which one has in lands, or other property, rather than the land itself. In this sense it is nearly synonymous with the words right, title and interest. The word is often used in a broader sense, as denoting the corpus. Thus, a man speaks of his farm as being his estate.
Extinguishment is the annihilation of a collateral thing or subject, in the subject itself out of which it is derived. Thus, a rent may be extinguished. A common may be extinguished. Extinguishment is sometimes confounded with merger, but they are distinguishable. Merger is only a mode of extinguishment; and applies to estates only under particular circumstances. But extinguishment is a term of general application to rights as well as estates. (Crabbe on Real Property, $ 1488.)
Suspension is a partial extinguishment, or extinguishment for a time.
Discontinuance is defined by Preston to be the cesser of a seisin under one estate and the acquisition of a seisin under a new, and necessarily a wrongful act. It occurred where a tenant in tail created a larger estate in the land than he was by law entitled to. It operated to take away the right of entry, and put the issue or those in remainder to the necessity of bringing a real action. (3 Bl. Com. 167. This species of title does not exist in this state, or in this country; and it is substantially abolished in England by 3 and 4 Will. 4, ch. 27, § 39.
Remitter is the act of the law which puts an end to the seisin under the wrongful and new acquired title, and restores the rightful owner to the ancient seisin and better title. Remitter is the same in effect, as to rights and titles, which merger is as to estates, and extinguishment is of things. The doctrine of remitter proceeds on the ground that the possession is cast on an innocent person, who has an existing title to the possession; or that the freehold is cast on a person who has a right which is remediable, and who has done no act by which he has estopped himself to insist on his ancient title ; and then as often as the possession, where the entry is lawful, or the immediate freehold, when the right is remediable, devolves to that person by act of law, or is vested in him by the act of the parties, without his concurrence or voluntary consent, or at a time when that person, (as in the case of an infant, feme covert, &c.) is under an incapacity of giving assent to any act which would be prejudicial, the law does of itself restore the party to that estate to which he had a subsisting right of possession at the time when he entered, or a subsisting right of action at the time when the freehold devolved on him. A remitter, when it operates, universally supplies the place of an entry, when an entry is lawful; and of an action when an action might be maintained. (Preston on Merger, 12, 13.) It redresses the injury done to the person in whom the right resides, by putting him into possession, or obtaining for him seisin of the freehold under his rightful title, in the same manner, and to the same extent, as he could restore himself to his estate by means of an entry, or an action. (Id.)
The difference between remitter and merger may be thus concisely stated. Remitter revives the seisin under the ancient title, in favor of the person in whom the possession of the freehold becomes vested, under a defeasible estate. Merger, on the contrary, puts an end to a subsisting estate, though held by a good title, and it accelerates the right of possession under a remote estate, residing in the same person. (See Co. Litt. 347 b; Litt. $ 659 et seq.; Preston on Merger, 14.)
SECTION II. Of the Origin of Merger, and of the Effect of Intention upon it.
It is, perhaps, impossible to trace the doctrine of merger to its origin; or to assign it to any one principle to which there may not be some exceptions. The most obvious reason is that which results from the maxim, Nemo potest esse dominus et tenens. This is subject to fewer objections than any other one principle which has been given as the foundation of the doctrine. This applies to actions and causes of actions as well as to estates. A man cannot be plaintiff and defendant in the same matter, any more than he can be both landlord and tenant of the same estate. If by the course of the transaction between parties, the estate of the tenant is vested in that of the landlord, it is extinguished or rather merged in that of the larger estate. If the owner of the fee simple, having granted an estate for years, should afterwards, during the continuance of the estate for years, succeed to the latter estate by operation of law or purchase, with no intervening estate, a merger would take place of the estate for years in the estate of inheritance. The owner of the fee simple would thus become landlord and tenant. He would be entitled to the rent and the benefit of the other covenants in the lease, and be at the same time the person, by whom that rent was to be paid, and these covenants are to be performed. The law deals more wisely when it extinguishes the less estate in the greater, by the doctrine of merger, than by keeping up incompatible relations,
In the Touchstone (p. 300) merger is treated as a surrender in law. When the immediate effect of a conveyance corresponds to a surrender, the instrument must be pleaded as a surrender, and not in the words in which the intention is expressed. In short, says Mr. Preston, there is not any case in which merger will take place, unless the right of making and accepting a surrender resides in the several persons between whom the transaction which causes the determination of one of these estates, takes place.
The effect of a surrender is not always the same as that of merger. If the lessee for life make a lease for years rendering rent, and afterwards the lessee for life surrender his estate ; in this case, albeit the primitive estate for life be yielded up, yet the derivative estate for years shall continue notwithstanding ; but the surrenderee shall not have the rent reserved upon the lease for years. So if lessee for life or years break a covenant with his lessor, and after surrender his estate to him, his breach of covenant is not thereby saved, for the lessor may have an action of covenant still, notwithstanding the surrender. (Touchstone, 301.) If, therefore, the lessee for life desires not only to surrender his estate to the lessor, but also to transfer the rent due and to become due to him from the tenant for years, there should not only be a surrender of the life estate, but an assignment to the primitive lessor of the lease for years. It is probable that a grant, under the revised statutes, by the tenant for life to the original lessor of all his estate in the premises, and of the lease for years granted by him, and the rent due and to become due thereon, would operate as a surrender of the primitive lease, and an assignment of the derivative one to the original lessor.
SECTION III. Of the Extinguishment of the equitable in the legal estate, and of a
simple contract in a specialty or judgment, frequently denominated Merger.
We have pointed out, in a previous section, the difference between merger and extinguishment, showing that the former relates to estates only, while the latter is a term of general application to rights as well as estates. The union of the legal and equitable estate in the same person and in the same right, operates as an ex
tinguishment of the equitable estate. For the doctrine of merger, technically speaking, it is essential that the several estates consolidated by merger should be all legal or all equitable ; and this whether the union be by act of the law or act of the party. (Den v. Van Ness, 5 Halst. 102.) Merger is a mode of extinguishment. The two are often confounded together; and our judges have not always been careful to distinguish the one from the other. They have frequently used indiscriminately the term merger and extinguishment as meaning the same thing. And they have generally denominated the union in one person of the equitable with the legal estate, as a merger of the former in the latter. In this sense a more enlarged and popular signification is given to the term merger, than is strictly appropriate. It does not, however, occasion any essential difficulty in the discussion of principles. Using the term, therefore, as our own judges have used it, we shall proceed to notice the application of the doctrine to the cases mentioned at the head of this section.
At an early day, the chancellor, in Nicholson v. Hallett, (1 John. Ch. 422,) said that it is a settled principle that when the legal and equitable estates, being coextensive, unite in the same person, the equitable estate is merged in the legal, and may be said no longer to exist for the purpose of being recognized and acted upon by the court. The legal estate is left to prevail according to the rules of law. Thus, if the legal estate in fee descends, ex parte materna, and the equitable estate in fee, ex parte paterna, the equitable estate is merged in the legal, and both go in the line of descent of the legal estate. That the union of the legal and equitable estates in one person in the same right leads in general to the merger of one in the other, was the settled doctrine as well of the courts of law as of equity. (Roberts V. Jackson, 1 Wend. 484. James v. Mowry, 2 Cowen, 246.) The term extinguishment is sometimes used, but not as conveying any different idea from that of merger.
The effect of the doctrine sometimes leads to an apportionment of an incumbrance. Thus, if a tenant in fee acquires a moiety of the rent and reversion, the lease and rent are merged pro tanto. (Lansing v. Paine, 4 Paige, 639.) On the same principle, if an undivided half of land upon which an annuity for A. is charged, is cast upon B. by descent, the half of the annuity chargeable upon his share of the land is thereby merged. (Jenkins v. Van Schaick, 3 Paige, 242.)