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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. Co. Litt. 270 a.
Doe v. Walker, 5 Barn. and C. 111; 4 Bac. Abr. Leases R. S. T. 303.
surrender, a merger would take place as to liis share
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
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.
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
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 forthwith 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, 312.)
Release of errors.
good and sufficient release in the law to the said G. H., his heirs, executors, and administrators, of all and all manner of error and errors, writ and writs of error, and all benefit and advantage thereof, and all misprisions of error and errors, defects and imperfections whatsoever, had, made, committed, done, or suffered, or to be had, made, committed, done, or suffered, in, about, touching, or concerning the aforesaid judgment, or in, about, touching, or concerning any writ, warrant, process, declaration, plea, entry, or other proceedings whatsoever, of or in any way concerning the same. And for what you the said attorneys, or any one of you, shall do, or cause to be done in the premises, or any of them, this shall be to you, and every of you, a sufficient warrant and authority. In witness whereof, I have hereunto set my hand and seal, the day of , in the year of the reign of our Sovereign Lady Victoria, by the grace of God of the united kingdom of Great Britain and Ireland Queen, Defender of the Faith, and in the year of our Lord one thousand eight hundred and
Signed, sealed, and delivered, by the said A. B. in my presence, and I declare myself to be attorney for the said A. B., and that I subscribe as such attorney.
1. K., of, &c.
Memorandum, that the above written warrant of attorney is given for securing the payment by the above-named A. B., to the above-named C. D., of the sum of L. , and interest thereon, after the rate of, &c., on, &c., being the days and times men
The defeasance, if indorsed or underwritten, does not require a stamp; but if made by a separate instrument, it will require one, and must be by deed, which should recite the material parts of the instruments referred to, and must be made between the same parties as are parties to the warrant of attorney. (Wood's Inst. lib. 2.)
tioned and reserved for the payment thereof, by a certain indenture of release and mortgage bearing even date herewith, and made between the said A. B. of the one part, and the said C. D. of the other part, whereby and by virtue of a bargain and sale therein mentioned, certain lands and hereditaments, situate at , therein more particularly mentioned, were conveyed and assured unto and to the use of the said C. D., his heirs and assigns, subject to redemption on payment of the aforesaid sum of L. and interest after the rate and at the time hereinbefore in that behalf mentioned. And it is hereby agreed and declared, between and by the said parties, that no execution or other process shall be issued on the judgment so to be entered up by virtue of the within written warrant of attorney, until default shall happen to be made in payment of the aforesaid principal and interest moneys, or some part thereof, on the days and times hereinbefore mentioned or referred to; but, in case default shall be made in payment thereof, or of any part thereof, then it shall be lawful for the said C. D., his executors, administrators, or assigns, immediately thereupon to issue execution, or cause execution to be issued upon the said judgment for such sum or sums of money as shall then be due, for principal and interest, or either of them, by virtue of the said [bond or indenture of mortgage.] And it is hereby agreed and declared, that it shall not be necessary for the said C. D., his executors, administrators, or assigns, to revive, or cause to be revived, the said judgment,
" If the money is payable by instalments, “ of any of the said instalments, or any part thereof respectively; but in case default shall be made in payment of any or either of such instalments, or any part thereof respectively, on any or either of the days whereon the same are made payable as aforesaid, then it shall be lawful for the said C. D., &c. &c., for the whole amount of the said principal sum of L. or such part thereof as shall be then unpaid, and all interest which may be due thereon; and it is hereby,” &c.