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The doctrine of merger does not, in all its bearings, belong to the present section. It is an important branch of the law of real estate, which we have treated in a separate chapter. [See part 2, chap. 4.] Its connection with the law of life estates and of estates less than freehold, renders it proper briefly to notice it in this connection.
The definition of merger is not easily framed. It is thus defined by an eminent author: Whenever a greater estate and a less coincide and meet in one and the same person, without any intermediate estate, the less is immediately annihilated, or is said to be merged, that is, sunk or drowned in the greater. (2 Bl. Com. 177. Preston on Merger, 6.)
With regard to the merger of terms in each other, the object is to accelerate the possession, or at least the estate in which the merger takes place. (Preston on Merger, 6, 7.)
There is a strong analogy between surrender and merger. It is said by a learned writer on this subject, that 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. (Preston on Merger, 23.)
An example of merger of the life estate in the reversion may be thus stated : If A., tenant for life with reversion to B. in fee, surrenders his life estate to B., or if B. releases to A. in fee, the life estate of A. is in either case absorbed in the inheritance. The necessary effect of this operation is to accelerate the estate in reversion. The reversionary estate is not enlarged by this union of the life estate—it is still a fee simple—but it is brought sooner into possession and enjoyment.
The above is as simple a case as can be put. If there were an intermediate estate between the tenant for life and the reversioner in fee, the merger would not take place. Nor would there be a merger if the one estate was held in auter droit, and the other in the party's own right. (Preston on Merger, 50.)
A merger sometimes has a partial operation. Thus, where a lessee of land became a purchaser of an undivided moiety of the rent or reversion, the lease and rent are merged and extinguished as to that portion of the premises. (Lansing v. Price, 4 Paige, 639.)
It is an essential requisite to merger, that the estate in immediate remainder or reversion must be as large in quantity of interest as the preceding estate, or larger than that estate. If the lessee for years afterwards takes a conveyance from the reversioner of an estate for life to take effect immediately, the estate for years is merged and extinguished, because the life estate is larger than the estate for years. But if there be a grant to A. for life, and subsequently a grant of the reversion for twenty years, in that case A. has both estates without a merger of the one in the other. The reason is that the estate in the reversion is limited to twenty years, which is less than the preceding estate which was for life. If, therefore, A. should die within the twenty years, though his life estate would thus be determined, the residue of the term for years would vest in his executors or administrators, and be assets in their hands.
The rule may be further illustrated by other cases. Suppose A. is tenant for life, remainder to B. for life, and A. surrender to B., A.'s estate merges in that of B. The reason is that B.'s estate for his own life is to him greater than A.'s estate, which to B. is an estate pur auter vie. In this case the less estate merges in the greater. But if the case be reversed, and B. conveys his estate in reversion to A., no merger will ensue—for the reason that B.'s estate is to A. less than A.'s own estate, and therefore A.'s ownership will embrace the duration of both estates. (Bowles' case, 11 Rep. 73, 4th resolution.)
It has sometimes been made a question whether a term for years would merge in another term in remainder or reversion. If the tenant for one hundred years underlets a part of the demised premises to B. for ten years, it is obvious that the tenant for one hundred
accepting a surrender. Should such surrender be made, no reason is perceived why the under lease would not be merged in the estate for one hundred years. After the surrender, the original term will be in the same state in point of duration of title, and right of enjoyment, except by reason of mesne incumbrances, as if no under lease had been created. (Preston on Merger, 182, 200.)
The doctrine of merger will be considered more at large in a subsequent chapter. [See post, Part II, ch. 4.1
SECTION II. Of estates at will, and tenancy from year to year. The connection between these two estates is so intimate that they may both be treated together in the same section.
“ Tenant at will,” says Littleton, ($ 68,)“is when lands or tene
ESTATES AT WILL, AND FROM YEAR TO YEAR. ments are let by one man to another, to have and to hold to him at the will of the lessor, by force of which the lessee is in possession. In this case the lessee is called tenant at will, because he hath no certain or sure estate ; for the lessor may put him out at what time it pleaseth him." But according to Coke (1 Inst. 55 a) every such estate is at the will of both parties. Though the estate be stated to be at the will of the lessor, the law implies that it is at the will of the lessee also. In like manner should it be stated to be at the will of the lessee, the law would imply that it was at the will of the lessor also. A person who occupies land, when no terms are prescribed, and without a reservation or the payment of rent, is a tenant at will. (Jackson v. Bradt, 2 Caines, 169.)
Estates at will are not usually created by lease in express words. They have been found to be inconvenient, and exist only notionally. (Timmins v. Rowlinson, 3 Bur. 1609. Co. Litt. 55 a, note 3 of Mr. Hargrave. Jackson v. Bryan, 1 John. 324, per Thompson, J. Same v. Aldrich, 13 id. 110.) It has been said that a parol gift of lands creates a tenancy at will. (Jackson v. Rogers, 1 John. Ch. 33. 2 Caines, 6, 314.) When no express term is agreed upon these estates are considered as estates from year to year, and each party is bound to give the other a reasonable notice to quit.
A tenant at will has no such estate that he can convey to a third person. If he assigns to another, the latter, on entering, becomes a trespasser, and may be so treated by the landlord.
If the estate be determined by the landlord, the tenant is entitled to the emblements. But this is otherwise when it is determined by his own act. (Stewart v. Doughty, 9 John. 108.)
The most obvious way of putting an end to a tenancy at will is by an express declaration to that effect by either party. The statute provides that the tenancy may be determined by the landlord's giving one month's notice in writing to the tenant, requiring him to remove therefrom. (1 R. S. 745, § 7.) At the expiration of the month from the service of such notice, the landlord may re-enter, or proceed in the manner prescribed by law, to remove such tenant, without any further or other notice to quit. (Id. $ 9. Post v. Post, 14 Barb. 253.) If the tenant shall give notice of his intention to quit, and shall not accordingly deliver up the possession thereof at the time specified in the notice, he or his executors or administrators are made liable to pay thenceforth to the landlord, his heirs or assigns, double the rent which he should otherwise have paid, at the same time and the same manner as the single rent. And such double rent shall be continued to be paid during all the time such tenant shall continue in possession as aforesaid. (1 R. S. 745, § 10. Hall v. Ballentine, 7 John. 376.)
There are other modes of determining the tenancy. It will be determined by the landlord's selling the premises. (Jackson v. Aldrich, 13 John. 106.)
Any act of ownership of the landlord hostile to that of the tenant, and any act of desertion of the tenant, is in either case a determination of the estate. So is an act of waste by the tenant. (Post v. Post, 14 Barb. 254. Phillips v. Covert, 7 John. 4.)
The leaning of the courts in modern times has been against considering demises when no limitation for the termination of the estate is fixed into estates at will, but they have held them to be estates from year to year. This latter species of estate has nearly superseded estates at will. When there was a lease at a certain annual rent, and the tenant holds over, after the expiration of the lease, without any new agreement as to the reat, the law implies that he holds from year to year at the original rent. (Abel v. Radcliff, 15 John. 505. Evertsen v. Sawyer, 2 Wend. 507. Pugsley v. Aikin, 1 Kern. 496.)
It was said by the court, in Post v. Post, (supra,) that the reservation of an annual rent is the leading circumstance that turns leases for uncertain terms into leases from year to year. (Jackson v. Bradt, 2 Caines, 174.) The difference between a tenancy at will, and from year to year, with respect to the termination thereof by notice from the landlord, is that in the former case a month's notice to quit from the landlord requiring the tenant to remove from the premises, without reference to the time of the commencement of the tenancy is only required; (1 R. S. 745, $ 7;) whereas, in the other case, the notice must be to determine the tenancy at the end of the year. (Post v. Post, 14 Barb. 257.)
The estate of a tenant from year to year is less frail than that of a tenancy at will. In the latter case, any entry by the landlord, or act done inconsistent with the continuance of the tenancy, puts an end to it at common law; but in the case of an estate from year to year, the landlord cannot enter until the year closes. It was held by the court of appeals, in Livingston v. Tanner, (4 Kern. 67,) that the purpose and design of the various provisions of the revised statutes, (1 R. S. 745, SS 7 to 9,) were to regulate and protect the rights of tenants at will and at sufferance, however created, by a definite and uniform rule, applying alike to each class of tenants specified ; and to prescribe the conditions upon which the landlord should exercise his right of re-entry, and the prerequisites to his bringing an action of ejectment, or instituting proceedings to recover possession of the lands thus held. The statute applies to all cases where the tenancy at will or sufferance exists in law, however created. The court thought that although the language of the statute was permissive, it was obviously intended by the legislature to impose a positive and absolute duty upon the landlord of giving notice, before the tenancy should be determined.
The learned judge who delivered the judgment in that case, thought that since the statute, the landlord could in no case, when a tenancy at will or at sufferance exists, either re-enter or bring ejectment until the expiration of one month from the service of the notice. (Id. 67.) This is giving to the tenant an advantage not enjoyed by him at common law. Originally neither a tenant at will or a tenant at sufferance was entitled to notice to quit. (Jackson v. McLeod, 12 John. 182. Jackson v. Bradt, 2 Caines, 169.)
The statute above referred to, does not name tenants from year to year. The estate of the latter is different from that of an estate at will. Though in ejectment under the former practice such tenant was entitled to six months' notice, yet in the summary proceedings to remove the tenant under the act of April 23, 1820, (43 Sess. ch. 194, p. 176; 1 R. S. 745 ; 3 id. 35, 5th ed.,) a notice to the tenant was only required in the case of a tenancy at will or sufferance, originally of three months, but reduced to one month by the revised statutes, and no notice was required in the case of a tenancy from year to year. (Nichols v. Williams, 8 Cowen, 13. Rowan v. Lyttle, 11 Wend. 616. Post v. Post, 14 Barb. 253. Livingston v. Tanner, 12 id. 481 ; S. C. on appeal, 4 Kern. 64. Contra, Prouty v. Prouty, 5 How. 81.)
Except for the purpose of a notice to quit, to enable the party to bring an action, the estate at will retains its true character. It is sometimes held an estate from year to year for the purpose of a notice to quit. (Bradly v. Covill, 4 Cowen, 350. Nichols v. Williams, 8 id. 15.) The notice required preparatory to an ejectment was a notice of six months, which must terminate at the end of the year. A party who comes in under such tenant stands in the same relation to the landlord. (Jackson v. Salmon, 4 Wend. 324.)