in one case entered into possession, or in the other case became seised of the freehold has any continuance. So that remitter, when it operates, universally supplies the place of an entry, when an entry is lawful; and of an action, when an action might be maintained; and it redresses the injury done to the person, in whom the right resides; by putting him into possession, or obtaining for him seisin of the freehold under his rightful title, in the same manner, and to the same extent, as he could restore himself to his estate by means of an entry, or an action. This restitution of right by mere operation of law, is given in lieu of an entry, when an entry is lawful and might be made; and of an action when an action might be maintained; and it supplies the place, and has all the effects of such entry, or according to the circumstances, of such action. It is given upon the principles of justice; on the ground that the right of entry being in the person in actual possession, or the right of action being in the person who has seisin of the freehold, there is no one, in one case, upon whom he can enter, or in the other case, against whom he can bring an action; therefore the law places the party precisely in that situation to which his entry or action, grounded on his former title, would have restored him ; and to the intent, that if any person will con

trovert the title in an action, the mere right, as it subsists between these parties, may be discussed and decided.

From the writings of Littleton and of Lord Coke, his learned commentator, it will appear that the object of the law of remitter is to restore the party to his ancient title. Thus remitter puts an end to a defeasible estate. It seats the person in whom the right resides, in his former ownership, giving him the tenancy on the footing of that ownership. It revives the seisin under the ancient title, in favour of the person in whom the possession or the freehold becomes vested, under a defeasible estate.-Merger, on the contrary, puts an end to a subsisting estate, though held by a good title, and it accelerates the right of possession under a more remote estate, residing in the same person.

CHAP. III.

On the Origin of Merger, and the Principles to which this Learning is to be ascribed.

AN endeavour to refer the learning of merger to any precise principle of policy, or of reason, and to support it with certain and exclusive pretensions, on that ground, appears to be a vain attempt. The subject does not admit of any historical deduction. No conclusive reason can be assigned for some of the distinctions advanced on this subject, and to be collected from books of authority. In all probability, this learning results from the rule nemo potest esse dominus et tenens; or from the inconsistency in allowing a person to have two distinct estates in point of fact, while one of these estates does, at least in legal intendment, include the time of both these estates. Whether one or the other is the governing reason is equally uncertain. Each reason is open to some objections arising from the application of the doctrine to par

ticular cases; and still no reason of more cogent argument can be advanced.

The learned Gilbert, in his Treatise on Tenures, has a passage, which if it may be understood to refer to the learning of merger, accounts for that learning on a ground which has very little correspondence with the second of these reasons. It has more

connection with the reason drawn from the feudal law, against the existence of tenancy and seignory of the same land, in the same person. His reasoning is therefore referrable to the first reason, or ground. He accounts for this conclusion of law on the presumption of a disclaimer of the tenancy, and renunciation of the feud. After observing that if tenant for life makes a feoffment, or levies a fine, it is palpably contrary to his oath of fidelity to the reversioner, and therefore is a plain renunciation of the feud; he adds, so in the case of the remainder, the estate for life is drowned, therefore the estate for life is renounced, and the remainder commences. There is at least a large portion of plausibility in the reasoning thus advanced. However, this account of the reason of merger is not altogether satisfactory. The principle, considered as proceeding from the intention of the parties, or as depending on a breach of the feudal contract by the tenant for life, is not by any means free from objection.

Allowing the conclusion of law to proceed from intention, and to be founded on that basis, then the act of taking the remainder, must be as decisive in reference to the estate of the tenant for life, when he takes a less estate, as when he takes a larger one. Resting it upon default, then, when he becomes the owner of the fee, there is no one to claim any benefit from the renunciation of the feudal contract; and by taking a grant of a lesser estate in remainder, the estate of freehold will not merge, although the acceptance of a present lease for years will be a virtual surrender of a lease for life. (a)

Possibly Gilbert treats of the renunciation of the feudal contract, as a disclaimer of the former tenancy, and as proof of an implied intention to become the owner of the seignory, or to establish a more immediate connection between himself and his lord, and his anxiety, will, and determination to be the tenant of an estate held under different conditions. Even these reasons do not place the doctrine on a a ground which in its application to all cases is

tenable.

Sometimes, it has been said, that the reason of merger and extinguishment, is the admission of the lessor's power to make a