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operate as a conveyance, it must be remembered that estates cannot be passed inter vivos, except by deed; whereas a simple writing, though not under seal, is all that is required by the statute of frauds to give validity to a surrender.
One thing essential to a surrender is not noticed in the definition given above from Coke. An estate cannot merge in one which is not of equal or higher degree. All terms of years, whatever their relative lengths, are considered as of the same degree; and a term of 1000 years will therefore merge in the one immediately reversionary to it, though it should be but of a year's duration. One estate pur autre vie will merge in another, or in an estate for life ; but an estate for life will not merge in an estate pur autre vie. The estate of a tenant for life, when conveyed to another, becomes an estate pur autre vie in the hands of the assignee; therefore, if a tenant for life in remainder should purchase the estate of the tenant for life in possession, such estate would merge; and, consequently, if the purchaser should die the next day, his representatives would not be entitled to retain the property during the residue of the life of the first tenant for life. A tenant for life in remainder, making such a purchase, should not, therefore, take the conveyance to himself, in case he has the legal estate in his own life-estate, but should have it conveyed to a trustee for him, which would prevent its destruction ; for a legal estate will not merge in an equitable one; nor, on the other hand, will an equitable particular estate merge in a legal one in remainder.
An estate for life or years will merge in an estate tail ; but an estate tail never merges : and though, previously to the act for the abolition of fines and recoveries, a base fee, into which an estate tail had been converted, when the issue in tail, but not the remainders, had been barred, would have merged,
like other base or conditional fees, in the absolute fee-simple in remainder ; the 39th section of that acto has provided, that a base fee, into which an estate tail is converted, on becoming united with the remainder or reversion in fee, without any intervening estate, shall not merge, but become enlarged into an absolute fee.
Any vested intervening estate in some third party, between the particular estate and the one in remainder, would prevent a merger, during its continuance. A contingent estate, or a right, as that which a widow has to dower before assignment, or an interesse termini, not being vested estates, would not be any obstacle in the way of merger.
Thus, if an estate were limited, on the marriage of A. B., to himself for life, with remainder to trustees, for a term of years, to commence from his death, with remainder to his children in tail, (without the intervention of the usual limitation to trustees to support the contingent remainder,) with remainder in fee to his father—if by the death of A. B.'s father before the birth of a child, the remainder in fee should descend to, or otherwise become vested in, A. B., his estate for life would merge, notwithstanding the interesse termini, in the trustees, and the contingent remainder to the children; and though the term would take effect on A. B.'s death,' his children would never derive any benefit from the limitation in their favour.
A term of years which has not yet commenced, (often called a reversionary term, as distinguished from a term of the reversion, which is a term actually running, but, owing to the existence of some particular estate, cannot take effect in possession,) is
an interesse termini. The same name is given to that interest which a person has under a common law lease before entry. If the lease (as is always the case in mortgages for a term) is made by way of bargain and sale, the statute of uses supersedes the necessity of entry, and the party has an estate from the execution of the conveyance.
It must not be supposed, from the statement, that an equitable will not merge in a legal estate above .made—that the legal and equitable interest in the same estate can exist as separate interests in the same person ; for wherever they unite, the equitable merges in the legal. Thus, if the trustee conveyed his legal estate to the equitable owner, his cestueque trust, the equitable estate would be merged in the legal; but it is merely to be understood, that an equitable interest in one estate will not merge in the next estate in remainder, whether legal or equitable, nor will a legal estate merge in an equitable one.
The distinction last noticed will show that the law of merger is solely applicable to legal estates, and that in this rule of real property, equity has not fol. lowed the law as it generally does, and one equitable estate will not merge in another.
An interesse termini, as before stated, will not prevent a merger. It has also been laid down, that, so long as it retains that character, it is incapable of destruction by merger, though it may be released by the party entitled to it.
A surrender to one joint tenant will enure for the benefit of his co-tenants ; but if the particular estate becomes vested in one of several joint tenants of the next estate in remainder, by operation of law, or by a grant or conveyance not intended to operate as a
* Watkins' Conveyancing, Book ii. chap. 4.
· Doe v. Walker, 5 Barn. and c. 111; 4 Bac. Abr. Leases R. S. T. 303,
surrender, a merger would take place as to his share only."
It is laid down in the text-books on this subject, that, in order to a merger, the estates must be vested in the same person, in the same right. The rights there intended are legal ones, or such only as a court of law will recognize. Thus, the circumstance of a person being entitled to one of the estates, as trustee only, will not prevent a merger at law, whatever relief a court of equity might give;" but a term which a man has in right of his church, or his wife, or as executor or administrator, does not necessarily merge in an estate of freehold which he has in his own right; for a man may have a freehold in his own right, and a term in auter droit.
In the passage last cited from Coke, it is also laid down, that a man cannot have, consisting together, a term in his own right, and a freehold in auter droit, which, of course, must be understood to apply to estates immediately reversionary on each other. But that position is open to several exceptions; for it
appears to be clear, that a merger of the term will not take place, unless the coalition of the estates is occasioned by the party's own act. Thus, where the fee descended on the wife of the party entitled to the term, it was held, that, inasmuch as the union of the estates was not the act of the termor, no merger took place.
The words " surrender," and " yield up," though the most appropriate, are not the only words by which a surrender may be effected. Any language sufficient to show the intention of the parties will be sufficient.
* Co. Litt. 192 a. Shep. Touch. 308.
Thorn v. Newman, 3 Swanst. 603. Co. Litt. 338 b. Lady Platt v. Heap, Cro. Jac. 275; 1 Bulst. 118. 9 Farmer v. Rogers, 2 Wils. 26 ; Smith v. Mapleback, 1 Durn, and E. 441.
WARRANTS OF ATTORNEY,
AND DEFEASANCES THEREON.
To C. D. and E. F., attorneys of her Majesty's Court
of Queen's Bench,' at Westminster, jointly and severally, or to any other attorney of the same court.'
These are to desire and authorize you, the attorneys above named, or any one of you, or any other attorney of the said court, to appear for me, A. B., of, &c., in the said court of in term next, or at any time thereafter, and then and there receive a declaration for me in an action of debt at the suit of G. H., for the sum of two hundred pounds, [usually double the debt,] and thereupon to confess the same action, or else to suffer a judgment by nil dicit, or otherwise, to pass against me in the same action, and to be thereupon forth with entered up against me of record of the said court, for the said sum of two hundred pounds. And I, the said A. B., do hereby further authorize and empower you, the said attorneys, or any one of you, after the said judgment shall be entered up as aforesaid, for me in my name, and as my act and deed, to sign, seal, and execute a
* Common Pleas, or Exchequer, as the case may require
• It is directed to two attorneys, to provide against the death of one before the judgment is entered up. (Wils
Release of errors.