(p) Holmes v. Bell, 3 M. & G. 213; Norfolk Railway Co. v. M'Namara, 3 Ex. 628.
But although the intention of the parties cannot prevent the operation of a merger when a higher security is taken for a lower one, on the ground that there cannot be two distinct liabilities for the same debt, yet it is also undoubtedly settled that it may be shown that the higher security is taken as collateral for the payment of the lower, that is to say, that it is a new security for a new debt, intended to protect the first: Yates v. Aston, 4 Q. B. (45 E. C. L. E.) 196; Ansell v. Baker, 15 lb. (69 E. C. L. R.) 20; Railway Co. v. M'Namara, 3 Exch. 627; U. S. v. Lyman, 1 Mas. 505; Averill v. Loucks, 6 Barb. 470; Butler v. Miller, 5 Den. 159; although the presumption where the bond is between the same parties, and for the same sum, is that the new security was taken as a satisfaction: Frisbie v. Larned, 21 Wend. 450; Stewart's Appeal, 3 W. & S. 476; Bond v. Aitken, 6 lb. 165; Butler v. Miller, supra; Price v. Moulton, 2 Eng. L. & Eq. R. 307.
A very common instance of the operation of merger occurs in the sale of real estate, when by the acceptance of the deed which consummates the transaction the articles of agreement are annulled: Howes v. Barker, 3 Johns. 506; [Ioughtaling v. Lewis, 10 Johns. 299; Wilson v. M'Neal, 10 Watts, 427; Creigh v. Beelin, 1 W. & S. 83; Williams v. Morgan, 15 Q. B. (69 E. C. L. R.) 782; unless in case of fraud or mistake: Lee v. Dean, 3 Whart. 316; Jenks v. Fritz, 7 W. & S. 201; or unless part of the consideration should be the future performance of certain stipulations in the articles, in which case the deed may be considered not so much a merger of the original contract as a part performance of it: Selden v. Williams, 9 Watts, 12; Brown v. Moorhead, 8 S. & R. 569. In the latter case, however, it is said that to rebut the presumption that the law would otherwise make (viz., that of the merger), the intention to the contrary must be clear and manifest: Seitzinger v. Weaver, 1 Rawle, 385.-R.
Another peculiar incident to a contract by deed is, that its obligation cannot be got rid of by any matter of inferior degree: thus, a verbal license *will not exempt a man from liability for breach of his covenant (r). Thus in West v. Blakeway (s), a tenant had covenanted not to remove a greenhouse, and it was held no defence for him against an action for so doing, that he had his landlord's subsequent permission so to do, that permission not being shown to have been under seal. "It is a well-known rule of law," said the Lord Chief Justice, "that unumquodque ligamen dissolvitur eodem ligamine quo et ligatur. This is so well established," continued his Lordship, "that it appears to me unnecessary to refer to cases. I will mention only Rogers v. Payne (t), which was an action of covenant for the non-payment of money; the defendant pleaded a parol discharge in satisfaction of all demands. It was held upon demurrer that the covenant could not be discharged without deed, and Blake's Case (u) was cited."l
(q) Sharp v. Gibbs, C. P. 12 W. E. 711.
(r) See Clocks v. Nash, 9 Bing. (23 E. C. L. R.) 341; Wood v. Leadbitter, 13 M. & W. 838.
(s) 2 M. & Gr. (40 E. C. L. E.) 729; Doe dem. Muston v. Gladwin, 6 Q. B. (51 E C. L. R.) 933.
(t) 2 Wils. 376.
(u) 6 Co. Rep. 43 b. See also Harris v. Goodwyn, 2 M. &. Gr. (40 E. C. L. E.) 405. See Nash v. Armstrong, 30 L. J. (C. P ) 286.
1 West v. Blakeway must be considered as laying down a more rigid rule than has been observed on this side of the Atlantic, where there have been many decisions to the effect that a parol dispensation with the performance of a sealed contract is valid, and similar in its effects to a license to exercise dominion over land, which, while unrevoked, is a justification for any acts done under its authority), upon the ground that although the contract itself the burthen of that contract when under seal will, without having regard to the last mentioned statute, if the estate of either is assigned, pass with the reversion or the term to the new landlord or to the new tenant. This is partly by force of the common law, and partly by force of the stat. 32 Hen. VIII. c. 34 (a), an Act passed shortly after the dissolution of the monasteries, and rendered necessary thereby. For, as by the common law, neither the benefit nor the burthen of a contract could in general be transferred by assignment, it became necessary, when so many reversions of estates held by farmers and tenants, for lives or years, were alienated, to give to the purchasers or alienees the same rights against the farmers or tenants as the lessors had; and the legislature naturally and equitably went on to give corresponding rights to the farmers and tenants.
It is another advantage of a contract by deed over a simple contract (x), that although, as is well known, a chose in action is not assignable at common law (y), independently of the Judicature Act, *1873 (36 & 37 Vict. c. 66, yet, where the contract is one between landlord and tenant, and is such as in its nature to affect directly the estates of either of them, which in law is called running with the land (z), the benefit and cannot be dissolved unless by an instrument of equal solemnity as that creating it, yet that the rights preceding from it may be varied or released by parol: United States v. Howell, 4 Wash. C. C. 620; Fleming v. Gilbert, 3 Johns. 528; Langworthy v. Smith, 2 Wend. 587; Dearborn v. Cross, 7 Cow. 48; Leavitt v. Savage, 16 Me. 72; Marshall v. Craig, 1 Bibb, 379; and such was the view taken in the earlier English cases: 1 Roll. Abr. 453, pi. 5; lb. 455, pi. 1; Year Book, 2 Hen. VI, 37; Ratclifff. Pemberton, 1 Esp. 35; Blackwell v. Nash, 1 Str. 535; Jones v. Barkley, Dougl. 684; in which case it was held that a tender of performance and waiver of it (the evidence of which must always rest in parol) were equivalent to actual performance. In Cordwent v. Hunt, 8 Taunt. 596, it was, however, held that in an action of covenant for not erecting a threshing-mill, it was no defence, that the omission to do so was at the special request of the plaintiff. This case was followed by West v. Blakeway, supra, where the defendant had, in a lease executed to him by the plaintiff's testator, covenanted not to remove any buildings erected on the premises during the term, and the breach alleged was that he had permitted the removal of a greenhouse, to which the defendant pleaded that after the execution of the lease, the term had been assigned to a third person, to whom the plaintiff's testator promised that if he would erect the greenhouse, he should have liberty to remove it at the expiration of the lease. Under these circumstances, as has been well observed of this case, there can be no question that, upon familiar principles, a parol license to remove the greenhouse would have protected a party in so doing, if the greenhouse had at the time of the license been in actual existence, and in the possession of the lessor; and the effect of the decision was therefore to deny the operation of such a license, as a protection, while the title to the greenhouse rested on an executory contract, thereby holding that the right of a party can be greater under a contract while yet executory than after it had passed into execution and conferred an actual title: 2 American Lead. Cas. 758, License. Such a course of deci* sion, however, has not, as we have seen, been followed in this country.-k.