Merger

The absorption or extinguishment of a lesser estate, right, or liability by a greater one; the lesser becoming extinct, while the greater is not increased. With regard to estates in lands, when a superior estate and an inferior one meet in the same person, without attendant circumstances recognized by law as operative to keep the latter existing, the inferior one is deemed to perish, and thereafter the rights of the party are only such as he possesses in virtue of the superior estate. In such cases, the inferior estate is said to merge, or to be merged, in the superior. It is not the value, but the nature, of the two estates which governs in the application of this doctrine. This has been illustrated by the merger of an estate for one thousand years in an estate for life. An estate for one thousand years is obviously a more valuable thing to its owner than an estate for life; yet, in law, the estate for one thousand years, being a hold; and, if the owner of an estate for one thousand years acquire also a lifeinterest, his estate for years will merge in his estate for life. With regard to crimes and wrongs there has also been a use of this term, signifying that, when one and the same act was both a private wrong and a public offence, the former aspect of it was extinguished by the latter. The result was, that, in larceny, for instance, the criminal character of the act embarrassed or delayed, or perhaps prevented, the owner of the stolen property from maintaining an action against the thief for his civil injury. This doctrine was, perhaps, never very clearly established, and has lost much of its importance under modern legislation and decisions. Merger is an annihilation by act of law of a particular in an expectant estate, consequent upon their union in the same person, thus accelerating into possession the expectant, which swallows up the particular, estate. It is the drowning of one estate in another, and differs from suspension, which is but a partial extinguishment for a time; while extinguishment, properly so termed, is the destruction of a collateral thing in the subject itself out of which it is derived. The doctrine probably results from the maxim, nemo potest esse dominus ettenens; or perhaps from the inconsistency, but for it, of one person owning two estates in fact, whilst one of them, in law, includes the time or duration of both. Merger is either absolute or qualified; for an estate, as against one person, may be extinguished, whilst, as against another, it may still have existence. In order to effect a merger, the following circumstances must concur: 1. There must of necessity be two estates at least in the same property, or in the same part of the same property, which have rested in the same person; but merger will operate between three or more estates, as well as between two.

2.

The several estates must be immediately expectant upon each other: the more remote estate must be without any intervening vested estate or contingent remainder created in the same instant of time and by the same means which originated the other estates; and the determination or acquisition of an intermediate estate may be the cause of merger, as between estates kept distinct by means of such intermediate estate.

3.

The estate in reversion or remainder must be larger than the preceding estate: there cannot be a merger as between equal estates of freehold.

Wharton.

Merger is the equivalent of confimo in the Roman law, and (when used with reference in the same individual, there arises a confusion of rights which extinguishes both qualities; whence, also, merger is often called extinguishment. And as in the Boman law the praetor, in certain cases where merger would be inequitable, intercepted and prevented it, so in English lavf the chancellor interferes in like cases to prevent it. The rule is, that merger or extinguishment will or will not take place in equity according to the intention, actual or presumed, of the person in whom the two interests come to be united; and even at law merger is excluded in certain cases.