Salmon v.
Swann,

1

merged his estate for years. But if in that case the lessee for years had made a lease at will, and then the tenant pour auter vie had died, the tenant at will would have been the occupant; consequently the term for years, being in another person, would not be merged; there being no union of the term and the freehold in one person.

31. A. seised in fee, demised to B. for 100 years, Cro. Ja. 619. to begin at a future time; and before that time, made a lease to C. for 21 years, to begin presently. B. before the commencement of his term, assigned it back to A., who afterwards granted a rent-charge, for which the grantee distrained C. The question was, whether the future term was merged in the inheritance, or if it had any existence in A. so that he might thereout grant the rent; for then it would avoid the second lease, being prior to it, and by consequence be liable to the payment of the rent-charge. It was resolved that the first term was merged.

1 Inst. 332 b.

Lichden v. Winsmore, 1 Roll. Ab. 934.

32. Lord Coke has laid it down as a general rule, that a man cannot have a term for years in his own right, and a freehold in auter droit, to consist together; as if a man, lessee for years, takes the feme lessor to wife, the term is merged.

33. This case appears to have been denied; for in 21 Ja. I. it was held, that if a person was lessee for years, reversion for life to A., a married woman; and the lessee granted his estate to the husband, and after the feme died; the term was not merged, because the husband had the estates in several rights; for the freehold was in the wife, and the husband only seised in her right.

34. Where the union of the two estates is not occasioned by the act of the termor, but by an act in law, there will be no merger of the term.

ΤΟ

Cro. Ja. 275.

35. A man possessed of a term for years, married; Platt v. afterwards the inheritance descended on his wife. It Sleap, was held, that the term for years of the husband was not merged; because the descent was an act of law, which the husband could not prevent; therefore it should not turn to his prejudice.

36. It was said in the preceding case, that if the 1 Bulst. 118. husband had issue by his wife, after the inheritance

descended to her, so as thereby he became tenant by

the curtesy, and acquired a freehold in his own right, the term would be merged.

37. It is laid down by Roll, that if a person having 1 Roll Ab. a term for years as executor, purchases the reversion, 934. pl. 9. this extinguishes the lease for years, though he has

it in auter droit; but it shall be assets. In Brooke's Tit. Execu Ab. it is said that the lease is not extinct, as to the tor, pl. 174. Extinguishcreditors of the testator.

ment, pl. 57.

1Ld. Raym.

38. Lord Holt has said, that where a man has a term as executor, and purchases the inheritance, the 520. term is not extinguished; for that would be a wrong to creditors, and amount to a devastavit. It should however be observed, that as far as the interest of the executor, who purchases the inheritance, extends; and as between his heir and personal representative; the term, upon principle, appears to be merged. And Idem. Lord Holt observed, that things shall be extinguished between the parties, which yet still remain, and have existence, as to strangers.

39. It has been said, that the descent of the inhe- Bac. Ab. Tit. ritance on a person, having a term of years in the Lease R. land, as executor, would merge the term. But Lord Chief Baron Gilbert doubts this, and says, that as well in the case of a purchase, as of a descent, all agreed that the term would not be extinct, as to creditors.

1 Inst. 338 b.

Bac. Ab. Tit. Lease R.

1 Salk. 326.

1 Inst. 338 a.

40. Lord Coke lays it down that a man may have a freehold in his own right, and a term in auter droit. Therefore if a man lessor take the feme lessee to wife, the term is not drowned; but he is possessed of the term in her right, during the coverture.

41. The reason of this docrine is thus given by Gilbert:-"Where the husband is himself lessee, and intermarries with the lessor, this merges his own term; because he thereby draws to himself the immediate reversion, in nature of a purchase, by his own voluntary act; and so undermines his own term. Whereas, in the other case, the term being existing in the feme till the intermarriage, is not thereby so drawn out of her, or annexed to the freehold, as to merge therein; because that attraction, which is only by act of law, consequent upon the marriage, would, by merging the term, do wrong to a feme covert; and so take the term out of her, though her husband did no express act to that purpose; which the law will not allow."

42. It is laid down by Lord Holt, that if a man has a term in right of his wife, and purchases the freehold, this is no extinguishment; because he has the term in one right, and the freehold in another; in which case the difference of the rights prevents a merger; for a third person is concerned, and may be prejudiced, which could not be by act of law.

43. It is settled, upon the same principle, that if a lessee makes his lessor executor, the term is not merged for the lessor takes the term in right of his testator, without any act of his. Therefore the act of law which cast it upon him will preserve it, in the same manner as if he had been a stranger; without any regard to the immediate freehold he had in his own right; which was only accidental.

44. The statute of uses expressly saves the rights Tit. 11. c. 3. of the feoffees to uses; which preserves from merger

any terms for years that may be vested in persons to whom lands are conveyed to uses in such lands.

Surrender.

4 Bac. Ab.

216.

45. A merger of estates for years may also take place And also by in consequence of a surrender of them to the person in remainder or reversion. But a term cannot be merged 1 Inst. 338 a. by surrender till the tenant has entered; for till entry there is no reversion in which the term can merge. If however the lessee for years enters, and after assigns his estate to another, the assignee may merge the term by surrender, before entry; because, by the Vide Tit. 32., entry of the lessee, the possession was severed and divided from the reversion.

c. 7.

lieves against

46. A court of equity will in some cases relieve Equity reagainst the merger of a term; and make it answer Merger. the purposes

for which it was created.

2 Vern. 90.

47. A portion was directed to be raised out of a Powell v. term for years, for a daughter. The fee afterwards Morgan, descended on the daughter, who, being under age, devised the portion. The court relieved against the merger of the term; and decreed the portion to go Tit. 1. § 51. according to the will of the daughter.

Thomas v.

Keymish,

Bournford,
Finch, 424.

48. A person having a term of 1000 years, Sanders v. assigned it to the owner of the inheritance, in trust for his wife and children; the assignee accepted the trust, and declared the purposes of it. The Court of Chancery supported the trust, notwithstanding the merger of the term; and decreed the heir of the lessor to make a further assurance of the residue of the term to a purchaser.

49. Tenant for years may assign his estate to any Alienable. other person; or create a smaller estate than his own;

unless prohibited by a particular proviso.

How forfeited.

1 Inst. 251 b. Dyer, 362 b. Cro. Eliz.

322.

1 Salk. 187.

1 Roll. Ab. 851.

6 Rep. 15 a.

Tit. 3. c. 1. $36.

50. If however a tenant for years attempts to create a greater interest than he lawfully can, whereby the estate in remainder or reversion is devested; it will operate as a forfeiture of his estate. And Lord Coke says, if tenant for life, or years, of land, the reversion or remainder in the king, makes a feoffiment in fee, this is a forfeiture; and yet no reversion or remainder is devested out of the king. And the reason of the forfeiture is, in respect to the solemnity of the feoffment with livery; tending to the king's disherison.

51. But where a tenant for years makes a lease for a longer term than he has, it is no disseisin, nor forfeiture; because it is only a contract between him and his lessee, which does not operate on the interest of the lessor.

52. If a husband possessed of a term for years, in right of his wife forfeits it, this shall bind the wife, because he might have disposed of it at his pleasure.

53. An estate for years is not forfeited, if the person in remainder or reversion is a party to the conveyance: for in that case each person transfers only what he may lawfully alien.

it

54. With respect to forfeitures by matter of record, may be laid down as a general rule, that every act by matter of record, which operates as a forfeiture of an estate for life, will also operate as a forfeiture of an estate for years.