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the lease takes effect, by passing an interest, it cannot operate by way of estoppel, even though it cannot operate by way of interest to the full extent of the intention of the parties. If any interest, however small, passes by a deed, it creates no estoppel. The deed which creates an estoppel to the party undertaking to convey or demise real estate, when he has nothing in the estate at the time of the conveyance, passes an interest or title to the grantee, or his assignee, by way of estoppel, from the moment the estate comes to the grantor, and creates a perfect title as against the grantor and his heirs. The estoppel works an interest in the land. An ejectment is maintainable on a mere estoppel. If the conveyance be with general warranty, not only the subsequent title acquired by the grantor will enure by estoppel to the benefit of the grantee, but a subsequent purchaser from the grantor, under his after-acquired title, is equally estopped, and the estoppel runs with the land. Lord Kenyon was inclined to the opinion that a subsequent purchaser would be equally estopped, though the conveyance, *creating the estoppel, was

*99

a Co. Litt. 45, a. 47, b. 265, a. Bacon's Abr. tit. Leases, O. Preston on Convey. vol. ii. 136. 139. Brown v. M'Cormick, 6 Watts, 60. Logan v. Moore, 7 Dana's Rep. 76. Fletcher v. Wilson, 1 Smedes & Marshall, Miss. Ch. Rep. 376. 389. Willis v. Watson, 4 Scammon Rep. 67. But if the estate comes to him as trustee to convey to a bona fide purchaser, the estoppel does not apply. Burchard v. Hubbard, 11 Ohio Rep. 316.

b Trevivan v. Lawrence, 1 Salk, 276. The learned editor has annexed to this short case of Trevivan v. Lawrence, in Smith's Leading Cases, vol. ii. an elaborate essay on the doctrine of estoppels. Coe v. Talcott, 5 Day's Rep. 88. Jackson v. Stevens, 13 Johns. Rep. 316. M'Williams v. Nisly, 2 Serg. & Rawle, 507. Somes v. Skinner, 3 Pick. Rep. 52. White v. Patten, 24 Id. 324. Middlebury College v. Cheney, 1 Vermont Rep. 336. Gardner v. Johnston, 1 Peck's Tenn. Rep. 24. Douglass v. Scott, 5 Hammond's Ohio Rep. 194. Lawry v. Williams, 13 Maine Rep. 281. In Doswell v. Buchanan, 3 Leigh, 365, A. having only an equitable title, conveyed lands by bargain and sale without warranty to B. in trust for C., and afterwards acquired the legal title, and sells it to D. with warranty. It was held, that the legal estate subsequently acquired by A. did not enure to B. in trust. for C.

without warranty; but he was embarrassed by the conflicting authorities, and particularly by Co. Litt. 265. In Jackson v. Bradford, it was held, that though a covenant of warranty would bar, by way of estoppel, the heir and his issue, the estoppel would not affect the purchaser, under a judgment entered against the heir, in the lifetime of his ancestor, and previous to the conveyance creating the estoppel.

(5.) A term for years may be defeated by way of merger, when it meets another term immediately expectant thereon. The elder term merges in the term in reversion or remainder. A merger also takes place, when there is a union of the freehold or fee and the term, in one person, in the same right, and at the same time. In this case, the greater estate merges and drowns the less, and the term becomes extinct; because they are inconsistent, and it would be absurd to allow a person to have two distinct estates, immediately expectant on each other, while one of them includes the time of both; nemo potest esse dominus et tenens. There would be an absolute incompatibility in a person filling, at the same time, the characters of tenant and reversioner in one and the same estate; and hence the reasonableness, and even necessity, of the doctrine of merger. The estate in which the merger takes place is not enlarged by the accession of the preceding estate; and the greater or only subsisting estate continues after the merger, precisely of the same quantity and extent of ownership as it was before the accession of the estate which is merged, and the lesser estate is extinguished. As a general

• Goodtitle v. Morse, 3 Term Rep. 365. In Comstock v. Smith, 13 Pick. Rep. 115, the estoppel was held not to apply to the case of a deed with warranty, when the warranty was restricted to the grantor, and those claiming under him.

⚫ 4 Wendell, 619.

* 2 Blacks. Com. 177. Preston on Convey, vol. iii. 7. 15. 18. 23.

Ibid. 7.

rule, equal estates will not drown in each other. *100 The merger is *produced either from the meeting of an estate of higher degree with an estate of inferior degree, or from the meeting of the particular estate and the immediate reversion in the same person. An estate for years may merge in an estate in fee, or for life; and an estate pour autre vie may merge in an estate for one's own life; and an estate for years may merge in another estate or term for years, in remainder or reversion. There is no incompatibility, and, therefore, there is no merger, where the two estates are successive, and not concurrent. Thus, a lease may be granted to a tenant pour autre vie, to commence when his life estate ceases; and he will never, in that case, stand in the character, which the law of merger is calculated to prevent, of the reversioner to himself."

Merger bears a very near resemblance, in circumstances and effect to a surrender; but the analogy does not hold in all cases, though there is not any case in which merger will take place, unless the right of making and accepting a surrender resided in the parties between whom the merger takes place. To a surrender, it is requisite that the tenant of the particular estate should relinquish his estate in favour of the tenant of the next vested estate, in remainder or reversion. But merger is confined to the cases in which the tenant of the estate in reversion or remainder grants that estate to the tenant of the particular estate, or in which the particular tenant grants his estate to him in reversion or remainder. Surrender is the act of the party, and merger

is

The

• Preston on Convey. vol. iii. 182, 183. 201. 213. 219. 225. 261. merger applies if there be a unity of seisin of the land, and of a right of way over it, in the same person. Tindal, Ch. J., in James v. Plant, 4 Adolph. & Ellis, 749.

b Doe v. Walker. 5 Barn. & Cress. 111.

• Preston on Convey. vol. iii. 23. 153.

Ibid. 25.

the act of the law. The latter consolidates two estates, and sinks the lesser in the greater estate. The merger is co-extensive with the interest merged, as in the case of joint-tenants, and tenants in common; and it is only to the extent of the part in which the owner has two several estates. An *estate may merge for *101 one part of the land, and continue in the remaining part of it."

To effect the operation of merger, the more remote estate must be the next vested estate in remainder or reversion, without any intervening estate, either vested or contingent; and the estate in reversion or remainder must be at least as large as the preceding estate. The several estates must generally be held in the same legal right; but this rule is subject to qualification, and merger may take place even when the two estates are held by the same person in different rights, as when he holds the freehold in his own right, and the term en autre droit. If they are held in different legal rights, there will be no merger, provided one of the estates be an accession to the other merely by the act of law, as by marriage, by descent, by executorship, or intestacy. This exception is allowed, on the just principle, that as merger is the annihilation of one estate in another by the conclusion of law, the law will not allow it to take place to the prejudice of creditors, infants, legatees, husbands or wives.c But the accession of one estate to another, is when the person in whom the two estates meet is the owner of one of them, and the other afterwards devolves upon him by the act of the party, or by act of law, or by descent, or in right of his wife, or by will. If the other estate, held in another's right, as in

• Preston on Convey. vol. iii. 88, 89.

Ibid. 50. 55. 87. 107. 166.

• Preston on Convey. vol. iii. 273. 285. 294. Donisthorpe v. Porter, 2 Eden's Rep. 162.

right of the wife, had been united to the estate in immediate reversion or remainder, by act of the party, as by purchase, the merger would take place." The power of alienation must extend to the one estate as well as to the other, in order to allow the merger, as where the husband has a term for years in right of his wife, and a reversion in his own right by purchase."

*102

*Merger is not favoured in equity, and is never allowed, unless for special reasons, and to promote the intention of the party. The intention is considered in merger at law, but it is not the governing principle of the rule, as it is in equity; and the rule sometimes takes place without regard to the intention, as in the instance mentioned by Lord Coke. At law, the doctrine of merger will operate, even though one of the estates be held in trust, and the other beneficially, by the same person; or both the estates be held by the same person, on the same or different trusts. But a court of equity will interpose, and support the interest of the cestui que trust, and not suffer the trust to merge in the legal estate, if the justice of the case requires it.a Unless, however, there exists some beneficial interest that requires to be protected, or some just intention to the contrary, and the equitable or legal estates unite in the same person, the equitable trust will merge in the legal title; for, as a general rule, a person cannot be a trustee for himself. Where the legal and the equitable interests descended through different channels, and united in the same person, and were equal and co-extensive, it has been held, that the equitable estate

• Preston on Convey. vol. iii. 294, 295. 309.

Ibid. 306, 107.

• Co. Litt. 54, b.

• 1 P. Wms. 41.

Preston on Convey. vol. iii. 43-49.

Atk. 592. Preston on Convey. vol. iii. 314, 315. 557,

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