Of the doctrine of merger. any lands or tenements are holden, shall (upon application Before we conclude the doctrine of remainders and reversions, it may be proper to observe, that whenever a greater estate and a less coincide and meet in one and the same person, without any intermediate estate (y), the less is immediately annihilated; or, in the law phrase, is said to be merged (20), that is, sunk or drowned in the greater. Thus (y) 3 Lev. 437. (20) Even if there be an intermediate contingent estate, it will be destroyed by the union and coalition of the greater estate and the less, (unless the greater estate is subjoined to the less by the same conveyance,) when such coalition takes place by the conveyance or act of the parties. (Purefoy v. Rogers, 2 Saund. 387.) But the reports of adjudged cases apparently differ with respect to the destruction of an intermediate contingent estate, in cases where the greater estate becomes united to the less by descent: these differences, however, may be reconciled, by distinguishing between those cases where the descent of the greater estate is immediate from the person by whose will the less estate, as well as the intermediate contingent estate, were limited; and the cases where the less estate and the contingent remainders were not created by the will of the ancestor from whom the greater estate immediately descends on the less estate. In the first set of cases, the descent of the greater estate does not merge and drown the intermediate contingent remainders; (Boothley v. Vernon, 9 Mod. 147; Plunkett v. Holmes, 1 Lev. 12; Archer's case, 1 Rep. 66;) in the second class of cases, it does merge them. (Hartpole v. Kent, T. Jones, 77; S. C. 1 Ventr. 307; Hooker v. Hooker, Rep. temp. Hardw. 13; Doe v. Scudamore, 2 Bos. & Pull. 294; and see Fearne, p. 343, 6th ed., with Serjt. Williams's note to 2 Saund. 382 a.) A distinction (as already has been intimated,) must be made between the cases where a particular estate is limited, with a contingent remainder over, and afterwards the inheritance is subjoined to the particular estate by the same conveyance; and those cases wherein the accession of the inheritance is by a conveyance, accident, or circumstance, distinct from that conveyance which created the particular estate. In the latter cases, we have seen, the contingent remainder is generally destroyed; in the former it is otherwise. For, where by the same conveyance a particular estate is first limited to a person, with a contingent remainder over to another, and with such a reversion or remainder to the first person as would, in its own nature, drown the particular estate first given him; this last limitation shall be considered as executed only sub modo; that is, upon such condition as to open and separate itself from the if there be tenant for years, and the reversion in fee-simple descends to or is purchased by him, the term of years is merged in the inheritance, and shall never exist any more. But they must come to one and the same person in one and the same right; else, if the freehold be in his own right, and he has a term in right of another (en auter droit) there is no merger. Therefore, if tenant for years dies, and makes him who hath the reversion in fee his executor, whereby the term of years vests also in him, the term shall not merge; for he hath the fee in his own right, and the term of years in the right of the testator, and subject to his debts and legacies. So, also, if he who hath the reversion in fee marries the tenant for years, there is no merger; for he hath the inheritance in his own right, the lease in the right of his wife (z). An estate-tail is an exception to this rule; for a man may have in his own right both an estate-tail and a reversion in fee; and the estate-tail, though a less estate, shall not merge in the fee (a). For estates-tail are protected and preserved from merger by the *operation and construc- [178] tion, though not by the express words, of the statute de donis: which operation and construction have probably arisen upon this consideration; that, in the common cases of merger of estates for life or years by uniting with the inheritance, the particular tenant hath the sole interest in them, and hath full power at any time to defeat, destroy, or surrender them to him that hath the reversion; therefore, when such an estate unites with the reversion in fee, the law considers it in the light of a virtual surrender of the inferior estate (b). But, in an estate tail, the case is otherwise the (z) Plow. 418; Cro. Jac. 275; Co. Litt. 338. first estate, when the condition happens; and by no means to destroy the contingent estate. (Lewis Bowles' case, 11 Rep. 80; Fearne, 346, 6th ed.) A court of equity will in some cases relieve against the merger of a term, and make it answer the purposes for which it was created. Thus, in Powell v. Morgan, (2 Vern. 90,) a portion was directed to be raised out of a term for (a) 2 Rep. 61; 8 Rep. 74. : years, for the testator's daughter. The tenant for a long time had no power at all over it, so as to bar or destroy it, and now can only do it by certain special modes, by a fine, a recovery, and the like (c): it would therefore have been strangely improvident to have permitted the tenant in tail, by purchasing the reversion in fee, to merge his particular estate, and defeat the inheritance of his issue; and hence it has become a maxim, that a tenancy in tail, which cannot be surrendered, cannot also be merged in the fee. (c) See pag. 116. CHAPTER XII. OF ESTATES IN SEVERALTY, JOINT-TENANCY, regard to the WE come now to treat of estates, with respect to the num- of the nature and properties ber and connexions of their owners, the tenants who occupy of estates, with and hold them. And, considered in this view, estates of number and any quantity or length of duration, and whether they be in the tenants. actual possession or expectancy, may be held in four different ways in severalty, in joint-tenancy, in coparcenary, and in common. connexions of severalty. I. He that holds lands or tenements in severalty, or is I. Of estates in sole tenant thereof, is he that holds them in his own right only, without any other person being joined or connected with him in point of interest, during his estate therein. This is the most common and usual way of holding an estate; and therefore we may make the same observations here, that we did upon estates in possession, as contradistinguished from those in expectancy, in the preceding chapter that there is little or nothing peculiar to be remarked concerning it, since all estates are supposed to be of this sort, unless where they are expressly declared to be otherwise; and that in laying down general rules and doctrines, we usually apply them to such estates as are held in severalty. I shall therefore proceed to consider the other three species of estates, in which there are always a plurality of tenants. II. Of estates in joint-tenancy. *II. An estate in joint-tenancy is where lands or tene- [180] ments are granted to two, or more persons, to hold in feesimple, fee-tail, for life, for years, or at will. In consequence of such grants an estate is called an estate in joint 1. The creation 2. Its properties are derived from [181] Unity of interest; tenancy (a), and sometimes an estate in jointure, which word, as well as the other, signifies an union or conjunction of interest; though in common speech the term jointure is now usually confined to that joint estate, which, by virtue of the statute 27 Hen. VIII. c. 10, is frequently vested in the husband and wife before marriage, as a full satisfaction and bar of the woman's dower (b). In unfolding this title, and the two remaining ones, in the present chapter, we will first inquire, how these estates may be created; next, their properties and respective incidents ; and lastly, how they may be severed or destroyed. 1. The creation of an estate in joint-tenancy, depends on the wording of the deed or devise, by which the tenants claim title for this estate can only arise by purchase or grant, that is, by the act of the parties, and never by the mere act of law. Now, if an estate be given to a plurality of persons, without adding any restrictive, exclusive, or explanatory words, as if an estate be granted to A. and B. and their heirs, this makes them immediately joint-tenants in fee of the lands. For the law interprets the grant so as to make all parts of it take effect, which can only be done by creating an equal estate in them both. As therefore the grantor has thus united their names, the law gives them a thorough union in all other respects. For, 2. The properties of a joint estate are derived from its unity, which is fourfold; the unity of interest, the unity of title, the unity of time, and the unity of possession; or, in other words, joint-tenants have one and the same interest, accruing by one and the same conveyance, commencing at one and the same time, and held by one and the same undivided possession. *First, they must have one and the same interest (1). One (a) Litt. s. 277. (1) But, two persons may have an estate in joint-tenancy for their lives, and yet have several inheritances. (Litt. sect. 283, 284; 1 Inst. 184 a; Cook v. Cook, 2 Vern. 545; Cray v. Willis, 2 P. Wms. 530.) This is the case, where an estate is granted in joint-tenancy to persons and the heirs (b) See pag. 137. of their bodies, which persons cannot intermarry. (See post, p. 192.) But, in this case, there is no division between the estate for lives and the several inheritances, and the jointtenants cannot convey away their respective inheritances so as to take effect immediately after their decease, |