the estoppel runs with the land. (c) Lord Kenyon was inclined to the opinion that a subsequent purchaser would be equally * 99 estopped, though the conveyance, * creating the estoppel, was without warranty; but he was embarrassed by the conflicting authorities, and particularly Co. Litt. 265. (a) In Jackson v. Bradford, (b) 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.1

(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

(c) Trevivan v. Lawrence, 1 Salk. 276. The learned editor has annexed to this short case of Trivivan v. Lawrence, in Smith's Leading Cases, vol. ii., an elaborate essay on the doctrine of estoppels. Coe v. Talcott, 5 Day, 88. Jackson v. Stevens, 13 Johns. 316. M'Williams v. Nisly, 2 Serg. & Rawle, 507. Somes v. Skinner, 3 Pick. 52. White v. Patten, 24 Id. 324. Middlebury College v. Cheney, 1 Vermont, 336. Gardner v. Johnston, 1 Peck (Tenn.) 24. Douglass v. Scott, 5 Ham. (Ohio) 194. Lawry v. Williams, 13 Maine, 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.4

(a) Goodtitle v. Morse, 3 Term Rep. 365. In Comstock v. Smith, 13 Pick. 116, 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.

(b) 4 Wendell, 619.

4 So, where a person has a vested share under an executory devise, and makes a conveyance of all right, &c., and subsequently the whole estate vests, the estate subsequently vesting does not pass by estoppel. Hall v. Chaffee, 14 N. Hamp. 216.

5 If the grantor is evicted, a title subsequently acquired by the grantor will not defeat the grantee's action on the covenant of warranty. Blanchard v. Ellis, 1 Gray, 195. See Jarvis v. Aikens, 25 Vermont, 635. But see Sweetzer v. Lowell, 33 Maine, 446. A release or quitclaim deed does not estop the grantor from setting up a subsequent title, although it contain covenants against claims and demands, &c. Bell v. Twilight, 6 Foster, 401.

1 See the doctrine of estoppel discussed in Wells v. Pierce, 7 Foster, 503; Cheeney v. Arnold, 18 Barb. (N. Y.) 434; Buckingham v. Hanna, 2 Ohio St. 551; Way v. Arnold, 18 Geo. 181; Van Rensselaer v. Kearney, 11 How. U. S. 297. That it applies to a state as well as an individual, see People of Vermont v. Society for Propagating the Gospel, &c. 2 Paine C. C. 545. But see also Wallace v. Maxwell, 10 Ired. Law, 110. Estoppel wil also prevent a grantee from denying the title of his grantor. Wedge v. Moore, 6 Cush. 8.

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. (c) 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. (d) As a general rule equal estates will not drown in each other. The merger is produced either from *100 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, the remainder or reversion. (a) 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. (b)

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. (c) To a surrender, it is requisite that the tenant of the particular estate should relinquish his

(c) 2 Blacks. Comm. 177. Preston on Convey. vol. iii. 7, 15, 18, 23.

(d) Ibid. 7.

(a) Preston on Convey. vol. iii. 182, 183, 201, 213, 219, 225, 261. The 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, Chief Justice, in James v. Plant, 4 Adol. & Ell. 749.

estate in favor 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. (d) Surrender is the act of the party, and merger is the act of the law. The latter consolidates two estates, and sinks the lesser in the greater estate. The merger is coextensive 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 *101 estate may merge for one part of the land, and continue in the remaining part of it. (a)1

*

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. (b) 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

(d) Preston on Convey. vol. iii. 25.

(a) Ibid. 88, 89.

(b) Ibid. 50, 55, 87, 107, 166.

(c) Ibid. 278, 285, 394. Donisthorpe v.

Porter, 2 Eden, 162.

1 See Badeley v. Vigurs, 26 Eng. L. & Eq. 144.

2 Where the executor of a mortgagee purchased, in his own right, the premises, under a foreclosure of a second mortgage, it was held that the first mortgage was merged in the fee, in equity and at law. Clift v. White, 15 Barb. (N. Y.) 70. This decision was, however, reversed in the New York Court of Appeals, where it was held that under the special circumstances the merger did not take place. 12 N. Y. 519.

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 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. (d) 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. (e)

Merger is not favored in equity, and is never allowed, *102 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. (a) 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. (b) 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 coextensive, it has been held, that the equitable estate merges

(d) Preston on Convey. vol. iii. 294, 295, 309.

(e) Ibid. 306, 307.

(a) Co. Litt. 54, b.

(b) 1 P. Wms. 41.

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

Atk. 582. Preston on Convey. vol. iii. 314, 315, 557, 558.

1 Loomer v. Wheelwright, 3 Sandf. Ch. 136. A charge will not merge in the inheritance. if contrary to the interest of the owner of the estate. Davis v. Barrett, 11 Eng. L. & Eq. 317. Johnson v. Webster, 31 Ibid. 98. Where the owner of the equity of redemption of mortgaged premises made a second mortgage, and then took an assignment of the first mortgage which he shortly afterwards assigned to a third person, held that the existence of the second mortgage at the time of these assignments prevented the merger of the first one. Evans v. Kimball, 1 Allen, 240.

in the legal, in equity, as well as at law. (c) The rule at law is inflexible; but in equity it depends upon circumstances, and is governed by the intention, either expressed or implied, (if it be a just and fair intention,) of the person in whom the estates unite, and the purposes of justice, whether the equitable estate shall merge or be kept in existence. (d) 2 If the person in whom the *103 estates unite, be not competent, as by reason of infancy or lunacy, to make an election, or if it be for his interest to keep the equitable estate on foot, the law will not imply such an intention. (a)

It would be inconsistent with the object of these Lectures, to pursue the learning of merger into its more refined and complicated distinctions; and especially when it is considered, according to the language of a great master in the doctrine of merger, that the learning under this head is involved in much intricacy and confusion, and there is difficulty in drawing solid conclusions from cases that are at variance, or totally irreconcilable with each other. (b)

(6.) Surrender is the yielding up of an estate for life or years, to him that hath the next immediate estate in reversion or remainder, whereby the lesser estate is drowned by mutual agreement. (c) 1

(c) Preston, ub. sup. 314-342. Donisthorpe v. Porter, 2 Eden, 162. Goodright v. Wells, Doug. 771. Wade v. Paget, 1 Bro. C. C. 363. Selby v. Alston, 8 Vesey, 339. (d) Forbes v. Moffatt, 18 Vesey, 384. Gardner v. Astor, 3 Johns. Ch. 53. Starr v. Ellis, 6 Johns. Ch. 393. Freeman v. Paul, 3 Greenl. 260. Gibson v. Crehore, 3

Pick. 475.

(a) Earl Rosslyn, in Compton v. Oxenden, 2 Vesey, 264. James v. Johnson, 6 Johns. Ch. 417. James v. Morey, 2 Cowen, 246.

(b) The third volume of Mr. Preston's extensive Treatise on Conveyancing is devoted exclusively to the law of merger. It is the ablest and most interesting discussion in all his works. It is copious, clear, logical, and profound; and I am the more ready to render this tribute of justice to its merits, since there is great reason to complain of the manner in which his other works are compiled. He has been declared, by one of his pupils, to have "stupendous acquirements as a property lawyer." The evidence of his great industry, and extensive and critical law learning, is fully exhibited; but I must be permitted to say, after having attentively read all his voluminous works, that they are in general encumbered with much loose matter, and with unexampled and intolerable tautology; magnitudine laborant sua.

(c) Co. Litt. 337, b.

2 See Campbell v. Carter, 14 Ill. 286; Knowles v. Lawton, 18 Geo. 476; Reed v. Latson, 15 Barb. (N. Y.) 9.

1 When a term is surrendered before the expiration of the period for which rent accrues, the rent for the whole of such period, not then due, is extinguished. Curtiss v. Miller, 18 Barb. (N. Y.) 477.