Penington v. Coats , 6 Whart. 277 ( 1841 )

Rogers, J.,

delivered the opinion of the Court.

, A merger is a common law doctrine, and exists where there is a union of the legal estate in pne person, in the same right and at the same time. Where such legal ownership of the term and inheritance meets, the term which was before personal property, falls into the inheritance and ceases to exist. But, in no instance, can the legal estate merge in the equitable ownership. In the sixth chapter of Mr. Preston’s Treatise on Conveyancing, which contains an enumeration of the circumstances, which must concur in order to accomplish the operation of the law of merger, it is said, the several estates must be held in the same legal right: and in page 566, “ the exception to merger arising from the circumstances", that the same person takes in different rights, must also be attended by the circumstance, that both these rights are recognized by law and considered to be distinct. And as a legal estate cannot merge in an equitable one, it is matter of consideration, whether the term be not legal, and the inheritance equitable and e converso.” Here the ground-rent was a legal estate, and recognized as such at law; but the character of estate, in which it is said to be merged, is of a different description; being nothing more than an inceptive title, an equitable interest, which, on payment of the purchase-money, would enable the vendor to demand a legal title by a deed properly executed and acknowledged by the sheriff Scott v. Greenough, (7 Serg. & Rawle, 200.) Stoever v. Rice, (3 Wharton’s Reports, 24.) Morrison v. Wurtz, (7 Watts, 437.) These principles have a direct application to the point raised in the case stated, and show, that at law the ground-rent is not merged. At the time of the death of the testator, the estate being separate and distinct, the acquisition of the inceptive equitable title could not operate by merger, as a revocation, pro tanto, of the bequests specified in the will. The interest of the legatees having become vested, nothing which has occurred since, can, by any possibility, alter the dispositions in the will, even "on the supposition, (which is contrary to the fact,) that the legal estate had been subsequently acquired. And if this be so at law, much less will it be considered a merger in equity; for equity does not favour mergers; and in law, mergers are said to be odious. It is generally, though not universally true, that merger depends on intention; and it is only, in those cases, where it is perfectly indifferent to the party in whom the interests have united, whether the charge or term should not subsist, that in equity the term is merged. 3 Prest, on Con. 43. Forbes v. Moffit, (18 Ves. 394.) Dougherty v. Jacob, (5 Watts, 458.) The presumption undoubtedly is against any intention on the part of the testator, by the purchase, to defeat the bequests in his will; nor can it be said to be indifferent even to him, that this effect which certainly never entered into his mind, should be produced. Equity will not permit the rights of creditors, legatees, devisees, husbands or wives, to be defeated by mere act of law, without any act done by them; and in a case cited in Salheld, it is said to be a reason by Lord Chief Justice Holt, that there should not be an extinguishment, because a third person was concerned, who might be prejudiced; which could not be by act of law, Prest, on Con. 292, and to the same effect, Forbes v. Moffit, (19 Ves. 394); Moore v. Harrisburg Bank, (8 Watts, 148.)

In Morrison v. Wurtz it is said, that a sheriff’s sale is attended by the ordinary incidents of a sale by an individualand if this had been a private sale, by articles of agreement, no money paid, nor possession taken, a legal title .to be made, and ■ the contract to be consummated at a time fixed by the parties, and in the intermediate time the testator had died, it would be clear, that the case would not fall within the operation of the law of merger. It would not merge at the time of the agreement, and there can be no intermediate time; for until the time agreed upon, the ground landlord would be entitled to his rent, which is inconsistent with the notion that the rent - is extinguished: and until the sheriff’s deed in the case, in law, he is the owner of the rent.

It is -not intended to say, that although an estate may not merge at law, that in all cases, it will he left separate and distinct in equity. Cases may possibly occur, where this may not be the case. For where an Qwner has an absolute interest in the estate and in a charge -or term, the latter may be annihilated, and particularly in Pennsylvania, where equitable estates have many of the incidents, as to remedies, of legal estates, A-s for example, where a lessee purchases the fee, but neglects to take a conveyance of the legal title. .Under such circumstances, perhaps the term would b.e extinguished, as the estates would be inconsistent with each other, and to keep .them separate., would be to no purpose. Then, it may he, the maxim .would apply, nemo potest esse dominus et tenems. Rut be this as it may, we are all of the opinion, that neither at law; nor equity, has the ground-rent merged so .as to defeat the rights of the legatees.

Judgment for $■400 .and 89 .cents.