merger

a transfer without valuable consideration, with the intent that the transferor shall, as the statute provides, cease to exist, made in accordance with the statute, has all the elements of a merger and comes within the principle that the corporate personality of the transferor is drowned in that of the transferee

The absorption of a thing of lesser importance by a greater, whereby the lesser ceases to exist, but the greater is not increased. There appears to be a distinction recognized by most of the authorities between a "merger," strictly speaking, and a "consolidation," but the terms are not always used with strict accuracy. 256 111. 522. — ^In Estates. When a greater estate and less coincide and meet in one and the same person, without any intermediate estate, the less is immediately merged, that is, sunk or drowned, in the latter. For example, if there be a tenant for years, and the reversion in fee simple descends to or is purchased by him, the term of years is merged in the inheritance, and no longer exists; but they must be to one and the same person, at one and the same time, in one and the same right. 2 Bl. Comm. 177; Latch, 153; Poph. 166; 6 Madd. 119; 1 Johns. Ch. (N. Y.) 417; 3 Johns, Ch, (N. Y.) 53; 3 Mass. 172. In Contracts. Merger, in the law of contracts, is the absorption or extinguishment of a security of a lower legal degree in another of a higher legal degree. 120 111. App. 554. Of Rights. Rights or demands merged in a judgment for their enforcement (65 Ind. 243; 25 Pa. St. 200; 41 Mo. 205), or in a security of a higher nature (10 Iowa, 443; 14 Mo. 450). Rights are also said to be merged when the same person who is bound to pay is a Uo entitled to receive. 117 111. 338. This is more properly called a "confusion of rights," or "extinguishment." In Torts. Where a person, in committing a felony, also commits a tort against a private person, the wrong was, under the old law, sunk in the felony, and, by modern law, is suspended until after the felon's conviction. 1 Chit. Prac. 10. The rule is generally changed by statute. In Crimes. At common law, if an act included several offenses of different degree (i. e., misdemeanors and felony), the misdemeanors merged in the felony (5 Mass. 106; 1 Mich. 217; 26 N. J. Law, 213); but if the offenses were of the same grade, there was no merger, and the prosecution might elect on which to prosecute (48 Me. 238; 4 Wend. [N. Y.] 265; 93 Fed. 452). The doctrine of merger of offenses is now repudiated in England (11 Q. B. 929), and in some of the United States (57 Conn. 461; 51 Minn. 382).

The fusion or absorption of one thing or right into another; generally spoken of a case where one of the subjects is of less dignity or importance than the other. Here the less important ceases to have an independent existence.

In real-property law. It is a general principle of law that where 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 the law phrase, is said to be merged, that is, sunk or drowned, in the greater. Thus, lf there be tenant for years, and the reversion in fee-simple descends to or is putchased by him, the term of years is merged in the inheritance, and shall never exist any more, 2 Bl. Comm. 177; 1 Steph. Comm. 293 ; 4 Kent, Comm. 99. James v. Morey, 2 Cow. (N. Y.) 300, 14 Am. Dec. 475; Duncan v. Smith, 31 N. J. Law, 327. Of rights. This term, as applied to rights, is equivalent to "confusio" in the Roman law, and indicates that where the qualities of debtor and creditor become united in the same individual, there arises a confusion of rights which extinguishes both qualities; whence, also, merger is often called "extinguishment." Brown. Rights of action. In the law relating to rights of action, when a person takes or acquires a remedy or security of a higher nature, 4n legal estimation, than the one which he already possesses for the same right, then his remedies in respect of the minor right or security merge in those attaching to the higher one. Leake, Cont. 506; 10 O. B. 561. As where a claim is merged in the Judgment recovered upon it.

In criminal law. When a man commits a great crime which includes a lesser, or commits a felony which includes a tort against a private person, the latter is merged in the former. 1 East, P. C. 411. Of corporations. A merger of corporations consist in the uniting of two or more corporations by the transfer of property of all to one of them, which continues in existence, the others being swallowed up or merged therein. In regard to the survivorship of one of the constituent corporations, it differs from a "consolidation," wherein all the consolidating companies surrender their separate existence and become parts of a new corporation. Adams v. Yazoo & M. V. R. Co., 77 Miss. 194, 24 South. 200, 60 L. In A. 33; Vicksburg & Y. C. Tel. Co. v. Citizens' Tel. Co., 79 Miss. 341, 30 South. 725, 89 Am. St. Rep. 656.

The sinking, drowning, absorption thing in another. Merger of estates: of a lesser estate in a greater, where they same person, without any intermediate equity may not follow, and is mainly a ger of obligations, contracts: an tract by confirmation by deed, or the simple or sealed, by a judgment. Merger or drowning of a private wrong in a public and the offense are one and the same act

^ 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.

The sinking of one estate or interest in another; as by consolidation, or union in the same person.

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.

is where a greater and lesser thing meet, and the latter loses its separate existence and sinks into the former. It is applied to estates, rights, crimes, and torts. cide and meet in one and the same person, without any intermediate estate, the less is immediately merged, that is, sunk or drowned in the latter; example, if there be a tenant for years, and the reversion in fee simple descends to, or is purchased by him, the term of years is merged in the inheritance, and no longer exists; but they must be to one and the same person, at one and the same time, in one and the same right. 2 Bl. Com. 177; 3 Mass. Rep. 172; Latch, 153; Poph. 166; 1 John. Ch. R. 417; 3 John. Ch. R. 53; 6 Madd. Ch. R. 119. The estate in which the merger takes place, is not enlarged by the accession of the preceding estate; and the greater, or only subsisting estate, continues, after the merger, precisely of the same quantity and extent of ownership, as it was before the accession of the estate which is merged, and the lesser estate is extinguished, Prest. on Conv. 7; asa general rule, equal estates will not drown in each other. The merger is produced, either from the meeting of an estate of higher degree, with an estate of inferior degree; or from the meeting of the particular estate and the immediate reversion, in the same person. 4 Kent, Com. 98. Vide 3 Prest. on Conv. which is devoted to this subject. Vide generally, 15 Vin. Ab. 361; Dane’s Ab. Index, h. t.; and Confusion; Consolidation; Unity of possession.