Cook v. Brightly

The opinion of the court was delivered, February 1st 1864, by Strong, J. Though it may he true that, at law, merger does not depend upon the intention of the person in whom the two estates become vested, the rule is different in equity. Indeed, in equity, merger is never allowed unless to promote the intention, either averred or presumed, of the party. In this case the cir [445] cumstances necessary to work a merger at law did not exist when the title to the ground-rent and the title to the land, out of which the rent issued, became vested in John Tucker. Nor did they exist, when both the land and the rent were subsequently conveyed to Martin Ourren. There was an intervening mortgage upon the land. Technically, neither Tucker nor Ourren held anything more than the ground-rent and the equity of redemption of the land, severed by an outstanding legal mortgage. At law, then, the estate in the ground-rent and the estate in the land were always separate, and the case supplies no evidence of any intention that the one should be drowned in the other. When Tucker conveyed the rent to Curren, he conveyed it as an existing estate, not lost in the OAvnership of the land. The grant as well as the purchase, indicated an intention to preserve the tAvo interests distinct. Else Avhy a deed for the land and another for the rent ? The latter was superfluous if it AAras supposed that the rent had merged, or if it Avas intended that it should merge. And it Avas manifestly against the interest both of Tucker and Curren, that any merger should take place. The debt due the mortgagee was not the debt of either of them. It was not secured upon the rent. Yet if the rent was lost in the fee of the land, the unencumbered estate was subjected, equally Avith the estate in the land, to the mortgage. This was so manifestly against the interest both of Tucker and Curren, that equity will not enforce it, and especially when demanded by the holder of the intervening mortgage, or one claiming under the holder. The mortgagee took as security nothing more than the land, subject to the ground-rent. We are of opinion, therefore, that the District Court ruled correctly that the ground-rent had not merged. It is also plain that the plaintiffs beloAV could maintain an action for an undivided sixth part of the rent, without joining as plaintiffs the owners of the other five-sixths. Under the statute 32 Henry 8, ch. 34, an assignee of part of the reversion may sue separately on all covenants running with the land AA'hich were made with the reversioner: 1 Chit. Plead. 116, 117. Where the rent assigned is an aliquot part, as in this ca.se, there is no injustice to the tenant in permitting the holder of the part to maintain his action on the covenant to pay it, and there may be great injustice in denying him this right. It is quite unlike the case of an assignment of the reversion in a part of the demised premises, where there can be no rule for apportionment. It is unnecessary to refer to the other assignments of error. They Avere not pressed, and we discover nothing in them that requires correction, nor any error in any part of the record. Judgment affirmed. Thompson, J., was sitting at Nisi Prius.