ASSIGNMENTS. Stock in trade (copartnership). ner releases exe cutor. whatsoever, both at law and in equity, which he or any of them can or may from henceforth claim, challenge or demand against him the said (surviving partner), his executors or administrators, for or by reason or on account of any breach or non-performance of any covenant or agreement, or any other act, matter or thing whatsoever done or committed, or which on his or their part, by virtue of the said indenture or articles of copartnership, or otherwise, are or were thereby covenanted or agreed to be paid, done and performed. AND he Surviving part the said (surviving partner), in consideration of the release hereinbefore made and given to him as aforesaid, and for other good considerations him thereunto moving, doth hereby, for himself, his executors and administrators, remise, release, discharge, and for ever quit claim unto him the said (executor), and all and every other the representatives of the said (deceased partner), all and every sum and sums of money, and all and all manner of actions, suits, claims and demands whatsoever, both at law and in equity, which he, they, or any of them, can or may have, claim, challenge or demand against the estate late of the said (deceased partner), or him the said (executor) as executor thereof, for or by reason, or upon account of any breach of covenant or non-performance of any agreement, or any other act, matter or thing whatsoever by him or them done or committed, touching or relating to the herein before-mentioned copartnership, or which by the said articles or indentures of copartnership, or otherwise, are or were by him the said (deceased partner) thereby covenanted and agreed to be paid, done and performed (other than and except as to debts not comprised in the said rest), which shall appear to have been contracted, and which are now justly due from the estate of the said (deceased partner) to the said late joint trade, and which are to be paid by him the said (executor) as aforesaid. IN WITNESS, &c. SUP.-VOL. I. Common deed stamp. Stamp, ASSIGNMENTS. Term to attend (purchaser). No. CLII. An Assignment of an outstanding [mortgage or other] satisfied Variations where a part only of the premises comprised in the THIS INDENTURE of parts, made the day of year of the reign, &c. and in the year of our Lord 18 Use of assign ment of terms (1) It being a rule of law that when a greater estate unites with a less, the less estate shall be considered as extinguished or merged, as it what terms to be is called, in the greater, it is usual where terms for years have been assigned. to attend, and Term of years vesting in the freehold merges. created out of the inheritance for any particular purpose, which has been satisfied, to continue them separated from the freehold by assigning them to some person in trust for the owner of the fee, in order that by means of the legal interest comprized in them, they may be used for the purpose of defeating (by priority) the title of any intermediate incumbrancer, i. e. any person claiming a charge upon the land subsequently to the creation of the term, and prior to the time of such assignment. But as the general doctrine of merger is subject to many nice distinctions, it is not always immediately obvious where there are several outstanding terms (which is frequently the case) which of them to select for that purpose. It may therefore be proper to give a general outline of the law of merger, so far as concerns estates for years carved out of the inheritance, together with some remarks tending to lead the student to a correct application of them in practice, which is the more necessary, on account of the contradictory authorities he will meet with upon the subject in the reports. The first general rule respecting merger, is, that when a term for years becomes vested in the same person who is seised of the freehold, the term will merge in such freehold: Thus, if a lessee for years, after entry, (till when the term is not fully severed from the inheritance) or the assignee of a lessee for years surrender his lease to the reversioner of the same lands, the term will be extinguished; 2 Roll. Ab. 494; for the term being only a portion of, and separated from the inheritance, will, BETWEEN (the termor) of, &c. of the first part, (the vendor) of, &c. ASSIGNMENTS. of the second part, (the purchaser) of, &c. of the third part, and Term to attend (the new trustee) of, &c. a trustee named and appointed by and on the upon being returned to it, again become united and consolidated with it; in such case, therefore, any attempt to keep the term on foot by assignment would be absurd. (purchaser). If vested in him freehold. But the above rule does not universally hold, for it is further necessary, in order to a merger, that the term so vested in the owner of the freehold should have been vested in him, in one and the same right with the freehold; Co. Lit. 338. b.; and see 9 East, 372; for if he have the freehold in his own right, as beneficial owner, and a term for years in the same lands as trustee or executor; Gage v. Acton, 1 Com. 69; 1 Salk. 326. S. C. 1 Ld. Raym. 520; or in right of his wife; Co. Lit. 338 b.; Barcebridge v. Cokes, Plow. 417; the term will continue distinct from the inheritance, although united with the freehold in the same person, because in all these cases the freeholder is possessed of the term, not beneficially for himself, but for or in right of others; and in the case of a trustee or executor, a merger would defeat the ends for which the term was created, or the rights of creditors entitled to the benefit of it; and yet in other cases, except as against creditors, it should seem that a term of years vested in an executor, who afterwards acquired the fee by purchase or other voluntary act, the term will merge, for primâ facie (and also eventually after payment of debts) he is considered as entitled beneficially, and for his own use, to the chattel interests of his testator; see 1 Roll. Ab. 934. pl. 9; 4 Leon. 37. pl. 102; although otherwise, nor if the union where the union arises by operation of law; 4 Bac. Ab. 211. But arises by operaalthough, as has been before observed, where a man seised of the freehold marry a woman termor, the term will not merge; yet, according to Coke, if a husband termor marry a woman who at the time is seised of the freehold, this term will merge, because, he says, that although a man may have a freehold in his own right, and a term for years in right of another, yet he cannot have a term for years in his own right, and a freehold in right of another; Co. Lit. 338 b.; as, however, in either case the union arises equally by the voluntary act of the party, and not by act of law, this doctrine seems questionable, and is also contrary to subsequent determinations; for where a termor married a woman upon whom the fee afterwards descended, the term was holden not to merge; Platt v. Sleap, Cro. Jac. 275; and so where a lessee for years assigned his lease to the husband of a woman who had an estate of freehold in the same lands, the term continued; 2 Roll. Rep. 472; 1 Roll. Ab. 934. pl. 10; and yet in both these cases the termor is possessed of the term in his own right, and seised of the fee in right of another; but, as the decision in Cro. Jac. is said to have been dissented from by Williams, Just. and is contrary to the doctrine laid down by Coke (1 Inst. 218 b.), it may not be considered safe to dispense with a term so situated, unless where the husband have issue by the wife, when he being seised of a beneficial title in the inheritance, as tenant by the curtesy, there appears to be nothing to prevent a merger of the term. See 1 Bulst. 118. But if the husband possessing a term in right of his wife purchase the fee, the term, it should seem, will merge, notwithstanding some autho if tion of law. Nor it seems freehold in his own right and term in right of another. Husband termor purchasing the fee term merges. ASSIGNMENTS. part of the said (purchaser) for the purposes hereinafter expressed, Term to attend of the fourth part. WHEREAS by an indenture bearing date the (purchaser). which was in the year Recital of crea tion of term. Owner becoming entitled to reut charge secured by term, it merges. In order to merger, owner estate in the day of and rities to the contrary (Young v. Radford, Hob. 3.); because this was his own voluntary act, and not, as in the case stated by Coke, the act of law. See Moor 51. pl. 157. And also, where the owner of the inheritance afterwards becomes entitled to a charge created upon it, and secured by a term vested in trustees, the charge will, unless in a case of creditors or infancy, become merged in equity; Donisthorpe v. Porter, Amb. 600. It is farther necessary, in order to the merger of a term, that the owner of the freehold should have the same estate in both, i. e. that both must have same the estates be legal, or both equitable; for if he have a legal estate in the one, and an equitable estate in the other, the term will not merge, although vested in the same person; Co. Lit. 290 b. n. (1). s. 13; Capel v. Girdler, 9 Ves. 509. term and inheritance. The cases above put, it will be perceived, are all those where an estate of freehold, at the least, is in one person, and a term for years only in the other, and according to the old opinions they were the only cases in which the term could merge; see 4 Bac. Ab. 8vo. p. 211, and cases A less term will there cited; but it has been since holden, that one term of years may merge in one of merge in another term of years if they be for different periods of dura longer duration. tion; Hughes v. Robotham, Cro. Eliz. 302. Pop. 31; in which case the term of shorter continuance will merge in that which extends farther into the inheritance. Thus, if a term of 10 years become vested in the same person who has a term of 12 years (4 Bac. Ab. 8vo. 211.) in the same lands, and the 12 years term has a longer period to run than that of 10, the term of 10 years will merge; but if the term of 10 years will, from its being subsequently created, extend longer than the term of 12 years, the 12 years' term will then merge in that of 10 (and see Stephens v. Bridges, 6 Modd. 66. in which a term of 1000 years was held to merge in one of 500); and so if there be two leases of the same land, the one for 20 years, and the other for one year only, expectant upon, and to commence upon the expiration of the term of 20 years, and the lessee for 20 years were to accept of an assignment from the lessee for one year, this it is said (Bac. Ab. ubi sup. but see co. Lit. 273. b.) would work a surrender of the 20 years' term, in like manner as if the lessee had taken a new lease for one year of his lessor, for it is not necessary that the merging term should be the longest, but only that it should be reversionary in relation to the term merged; and in the words of Ch. Bar. Gilbert, "the reversionary interest coming to the possession drowns it;" and as a person may surrender to him who has the reversion in fee, so he may to any one who has the reversion for any longer term; and so if a term of 900 years be carved out of a term of 1000, the 900 may be surrendered to, and will merge in the term of 1000, although the term of 1000 years can never merge in that of 900; but this is not because the term of 1000 years is longer than that of 900, but because the rein the reversion- moter term never merges in that which is present and immediate, but the immediate term in that which is more remote. In case of two terms the one carved out of the other, the present merges ary term. Another exception to the rule of merger, by the union of the term ASSIGNMENTS. made, or expressed to be made between (1) (the mortgagor) therein described, of the one part, and (the mortgagee) therein also described, Term to attend (purchaser). with the freehold, is occasioned by the statute of uses (27 Hen. 8. c. 10.) in which, after enacting" that where any person or persons shall be seised of any lands, &c. to the use, confidence, or trust of any other person or persons by any means whatsoever, every such person and persons shall from thenceforth be adjudged in lawful possession of the same lands, &c." (which seisin of the freehold, by virtue of the act, would of course merge a term for years which the person so seised might at the time have in the same lands) there is contained a "saving to all those persons and their heirs, who might thereafter be seised to any use, all such former right, title, entry, interest, possession, rents, customs, securities, and actions as they or any of them might have had to his or their own proper use in or to any manors, lands, tenements, rents, or hereditaments whereof they might be seised to any other use." And as this clause includes an estate for years equally with other estates and interests, it follows, that a term which a person has in his own right, will not be merged by his taking a conveyance of the inheritance to any other use than to himself in fee; 7 Co. 19. b.; Ferrers v. Termor, Cro. Jac. 643. But it is to be observed, that although a term be merged at law, it will nevertheless be upholden, or rather restored in equity, where it is necessary for the object of the term, that it should be kept on foot; see Saunders v. Bounford, Finch Rep. 424.; Powell v. Morgan, 2 Vern. 90.; Thomas v. Kemeys, ib. 348.; Lawrence v. Blatchford, ib. 457.; Hopkins v. Hopkins, 1 Atk. 592. These points on the law of merger lead to a consideration of the modes to be adopted to prevent the merger of such terms as it may be wished to keep on foot, and it will be properly concluded from the uncertainty which it is perceived prevails in many cases, as to when a term is merged, and when it is still subsisting, that a term should seldom be left in its former situation, but be either surrendered, or assigned to attend, according to the circumstances of the case.-And see ante, MoD. PREC. Vol. I. p. 450; and as to merger by Presumption, see Emery v. Grocare, 6 Mod. 64. Where there is but one term outstanding, as supposed in the precedent given above, all that is necessary to keep it on foot is to vest it by assignment in some third person, accompanied by a declaration of trust that it shall attend the inheritance; but where there are more terms than one, such modes may be adopted as are noticed in the notes to the next subsequent precedent, No. CLIII. But no merger termor in his own right putchasing inherit ance, except, &c. Term merged at law may be restored in equi ty. (1) If the term were created for securing the payment of an annuity, Annuity. pressed to be made between (the grantor) of, &c. of the first part, (the grantee) of, &c. of the second part, and (the grantee's trustee) of, &c of the third part, the said (grantor), for the considerations |