CHAP. XIII.

That the Union of two Estates in the same Person by means of the joint Act of the respective Owners of these Estates, with an Intention that the Estate of their Assignee should continue for the collective Time of their several Estates, will not be any Cause of Merger.

THIS point may be collected from different passages of books of authority. These passages warrant the conclusion in all the extent in which it is advanced. That the prior estate should, under these circumstances, be exempt from the influence of merger, is consistent with the grounds and principles on which this act of law is allowed to take place. All the cases in which the doctrine of merger has prevailed, are authorities only that one estate will be annihilated, when there are two distinct estates, and the time of one becomes, either

in point of fact, or in intendment of law, inconsistent with the other; or there is an evident intention to change the tenancy under one estate, to a tenancy under another estate. For when one person accepts a conveyance from two persons who have distinct estates; becoming the purchaser of the estate of each of them; and their estates give particular interests only, and not the complete ownership and absolute dominion over the property, either generally or subject to certain particular estates, it is a natural and reasonable inference that he intended to have the right of enjoyment for the several periods of time comprised in these estates. To many purposes there is

union and consolidation of the two estates. They become one entire interest, so as to perfect a right of dower, tenancy by curtesy, &c. and give the remedies proper to the estate considered as an estate of inheritance, in possession: still, however, there is not any merger. To merger it is essential that the time of one estate should in point of title, be absorbed and lost in the time of the other estate; while in the case under consideration, the right of enjoyment will continue for the several times of the several estates. Another circumstance peculiar to these cases, and distinguishing them from those to which the doctrine of merger is applicable, is, that the right of enjoyment

continues under each estate for the time of that estate; so that under these circumstances the charges on the reversionary or more remote estate, which were created by the former owner of that estate, will not be accelerated by the union and consolidation of the two estates.

In Bredon's case (a) it seems to have been agreed that if a tenant for life and the owner of the first remainder in tail, make a feoffment by deed, this is not a discontinuance, for each giveth that which he may lawfully give; and although the owner of the first remainder should die without issue, the feoffee shall enjoy the land during the life of the tenant for life. This opinion proves that under a conveyance by the owner of two estates, there is not any merger, when they join in conveying these estates. The case of Bredon itself, from which this opinion is extracted, is an authority for the same conclusion. In that case tenant for life with a remainder over in tail, joined with the first tenant in tail in a fine sur conuzance de droit come ceo, &c. to a stranger in fee, who rendered a rent-charge of forty pounds a year to the tenant for life. The first tenant in tail died without issue, and the second tenant in tail entered, and ona distress.

(a) 1 Rep. 77.

by the tenant for life for his rent, and on a replevin and avowry, a question arose on the right of the tenant for life to distrain. That question, of consequence, involved another question whether the estate for life was a continuing interest as against the second tenant in tail; for the owner of that estate resisted the demand of the rent, on the ground that the estate for life was annihilated, by its union with the next estate of inheritance. This, it must be observed, was the only possible ground on which the second tenant in tail could claim the right of possession, or deny the validity and continuance of the rent, tendered to the tenant for life, by the fine in which he concurred with the first tenant in tail, but it is evident the court of Common Pleas, in which this case was depending, admitted that the time of the estae for life was a continuing estate, and that the tenant for life was intitled to distrain for the rent; for judgment was given that the avowant should have return of the cattle; and it was held that the rent did remain after the death of the first tenant in tail without issue; consequently they determined that the estate for life was not merged by its union with the next estate of inheritance. In delivering the opinion on this case, the court observed," that the said fine levied by tenant for life, and him in remainder, was no discontinuance, either of the first

"remainder in tail, or of the second, be

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cause each of them gave only but that "which he might lawfully give, viz. the "tenant for life gave his estate, and he in "the remainder a fee-simple, determinable upon his estate-tail, and the second re"mainder is not discontinued or devested thereby. And that it shall be the grant "of both, of their several estates; and from "thence it followed that it was not any "forfeiture of the estate of the tenant for "life; forasmuch as each gave that which " he might lawfully give. And it was said, "that it cannot be a forfeiture, for the law

(which abhorreth wrong) shall construe "it, first, to be the grant of him in remain"der in tail, and afterwards the grant of "the tenant for life: as in many cases, ut

res magis valeat, quam pereat, the law "shall make construction; and therefore in "the case of a fine, if tenant in tail and one "A. levy a fine to a stranger, who grant"eth and rendereth to A. for years, render

ing rent, and by the same fine, grant the "reversion to tenant in tail and his heirs, "this is good; and although that all be

by one fine, at one instant, yet in the

judgment of law, the lease doth precede "the grant of the reversion, as it is holden " in 36 Hen. 8. Br. Fines 118. and so was "it adjudged upon demurrer between White "and White, M. 41 and 42 Eliz. in the