MERGER, 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; 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.
2.
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. As a
general rule, equal estates will not drown in each other.
3.
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, Bac. Ab. Leases, &c. R; 15 Vin. Ab. 361; Dane's Ab.
Index, h. t.; 10 Verm. R. 293;; 8 Watts, R. 146; Co. Litt. 338 b, note
4; Hill. Ab. Index, h. t.; Bouv. Inst; Index, h. t.; and Confusion;
Consolidation; Unity of Possession.
MERGER, crim. law. When a man commits a great crime which includes a lesser, the latter is merged in the former.
2.
Murder, when committed by blows, necessarily includes an assault and
battery; a battery, an assault; a burglary, when accompanied with a
felonious taking of personal property, a larceny in all these, and
similar cases, the lesser crime is merged in the greater.
3.
But when one offence is of the same character with the other, there is
no merger; as in the case of a conspiracy to commit a misdemeanor, and
the misdemeanor is afterwards committed in pursuance of the conspiracy.
The two crimes being of equal degree, there can be no legal merger. 4
Wend. R. 265. Vide Civil Remedy.
MERGER, rights.
Rights are said to be merged when the same person who is bound to pay
is also entitled to receive. This is more properly called a confusion of
rights, or extinguishment.
2.
When there is a confusion of rights, and the debtor and creditor become
the same person, there can be no right to put in execution; but there
is an immediate merger. 2 Ves. jr. 264. Example: a man becomes indebted
to a woman in a sum of money, and afterwards marries her, there is
immediately a confusion of rights, and the debt is merged or
extinguished.
MERGER, torts.
Where a person in committing a felony also commits a tort against a
private person; in this case, the wrong is sunk in the felony, at least,
until after the felon's conviction.
2.
The old maxim that a trespass is merged in a felony, has sometimes been
supposed to mean that there is no redress by civil action for an injury
which amounts to a felony. But it is now established that the defendant
is liable to the party injured either after his conviction; Latch, 144;
Noy, 82; W. Jones, 147; Sty. 346; 1 Mod. 282; 1 Hale, P. C. 546; or
acquittal. 12 East, R. 409; 1 Tayl. R. 58; 2 Hayw. 108. If the civil
action be commenced before, the plaintiff will be nonsuited. Yelv. 90,
a, n. See Hamm. N. P. 63; Kely. 48; Cas. Tempt. Hardw. 350; Lofft. 88; 2
T.R. 750; 3 Greenl. R. 458. Butler, J., says, this doctrine is not
extended beyond actions of trespass or tort. 4 T. R. 333. See also 1 H.
Bl. 583, 588, 594; 15 Mass. R. 78; Id. 336. Vide Civil Remedy; Injury.
3.
The Revised Statutes of New York, part 3, c. 4, t. 1, s. 2, direct that
the right of action of any person injured by any felony, shall not, in
any case, be merged in such felony, or be in any manner affected
thereby. In Kentucky, Pr. Dec. 203, and New Hampshire, 6 N. H. Rep. 454,
the owner of stolen goods, may immediately. pursue his civil remedy.
See, generally, Minor, 8; 1 Stew. R. 70; 15 Mass. 336; Coxe, 115; 4 Ham.
376; 4 N. Hanp. Rep. 239; 1 Miles, R. 212; 6 Rand. 223; 1 Const. R.
231; 2 Root, 90.
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