Merger

^ A sinking: absorption, coalescence, union, extinguishment — of a lesser estate, obligation, right, or wrong, by a larger one; the smaller ceasing to exist, and the greater not increasing.

1.

Merger of estates. Whenever a greater estate and a less coincide and meet in one and the same person, without any intermediate estate, the less is immediately annihilated; or, in law phrase, is " merged," that is, sunk or drowned in the greater.* As, where the reversion of a fee-simple descends to or is purchased by the tenant for years or life. Consists in a thorough coalescence, indissoluble union of merging estates; each retaining its rights and advantages, while imparting to the other the whole of its peculiar attributes.' The extinguishment, by act of law, of one estate in another by the union of the two estates. 8 The whole title, legal as well as equitable, must unite in the same person.* While a merger at law follows inevitably upon the union of a greater and lesser estate in the same ownership, it does not so follow in equity. There the doctrine is not favored, and the estates will be kept separate where such is the intention of the parties, and justice requires it.'" Merger is a matter of intention, declared or pre- 1 See 3 Bl. Com. 376; 4 id. 379. = 4 Bl. Com. 397; 1 Kent, 265; 3 Story, Const. § 1488. • L. meretrix, a courtesan: merere^ to earn money. • 1 Bl. Com. 436. • L. mergere, to sink under water. »2 Bl. Com. 177; Mangum v. Piester, 16 S. C. 330 (1881); Little v. Bowen, 76 Va. 727 (1882). ' [Den V. Vanness, 10 N. J. L. 106 (1828), Ewing, C. J.; Duncan v. Smith, 31 id. 327 (1865), Beasley, C. J. 8 State V. Koch, 47 Mo. 584 (1871), Wagner, J. • Jordan v. Cheney, 74 Me. 362 (1883). '» Smith V. Eoberts, 91 N. Y. 475 (1883), cases; HiU v. ■sumed. The person in whom the estates meet may prevent it. Thus, the owner of the fee in land may acquire and hold a mortgage interest therein.' 3., Merger of agreements, contracts, obligations. When an engagement bysimple contract is afterward confirmed or continued by a sealed instrument, or when the demand or right of one party as against the other under their sealed or unsealed engagement is transformed into a judgment. The simple contract hecomes lost, smik, as it were, and swallowed up in that under seal, and becomes totally extinguished.'' A judgment on a note, or a contract, merges the note, or the contract, and no other suit can be maintained on the same instrument. ^ A judgment against one of several joint-contractors on a bond merges the contract into tjie higher security. The, instrument, in either case, is thereafter functus officio.* See Gtbeater; Joint. Extinguishment by merger takes place between debts of different degrees, the lower being lost in the higher, and, being by act of law, it is dependent upon no particular mtention. It takes place only where the ■debt is one, and the parties to the securities are identical. Hence, there is no merger where a stranger ^ves a bond for a simple contract debt, or confesses judgment for a debt... The debt remains the same, though the old evidence of it melts into the new one, and the creditor merely gains a higher security...' In merger there is a change only of the security; in satisfaction by "substitution" there is a change of the debt.* See Seoukity, Collateral. All verbal agreements between the parties to a written contract, made before or at the time of the ■execution of the contract, are considered as merged into the written instrument, and are inadmissible to vary its terms or to affect its construction. But oral agreements subsequently made, on a new and valid consideration, and before the breach of the contract, in cases falling within the rules of common law, and not within the Statute of Frauds, stand upon a different footing. They may have the effect to enlarge the time of performance specified in the contract, or may vary any other of its terms, or they may waive or discharge it altogether.' -^See Parol, Evidence. 3. Merger of wrongs. When a private ■wrong and a public offense [a felony] is committed by one and the same act.'' 1 Winona, <S:o. E. Co. v. County of Deuel, 3 Dak. 31 <1882), cases. ! [Smith, Contr. 2.3. 'Eldred v. Michigan Ins. Bank, 17 Wall. 545 (1§73); Beazley v. Sim, 81 Va. 648 (1886). * United States v. Ames, 99 U. S. 45 (1878); Candee v. Smith, 93 N. Y. 351 (1883); 6 Wall. 231; 95 U. S. 347. ' Jones V. Johnson, 3 W. & S. 377 (1842), Gibson, 0. J. "Emerson v. Slater, 22 How. 41 (1859), cases, Clifford, J.; Hawkins v. United States, 96 U. S. 689 (1877), At common law, under an indictment for a felony, conviction cannot be had of a lesser offense included within it, if such lesser offense is a misdemeanor. This rule has been changed by statute.* Formerly, the civil action for damages suffered by the individual ivas suspended until he had performed his duty to society by an endeavor.to bring the offender to justice in a court of criminal law.*

See Waiver.