Terms are used for securing portions.

Any estate of freehold is a larger estate than a term of years.

Merger of the term.

(p) Ante, p. 49.

(q) Ante, pp. 22, 35, 59.

(r) 3 Prest. Conv. 219. See ante, pp. 239, 270.

The merger of a term of years is sometimes occasioned by the accidental union of the term and the immediate freehold in one and the same person. Thus, if the trustee of, the term should purchase the freehold, or if it should be left to him by the will of the former owner, or descend to him as heir at law, in each of these cases the term will merge. So if one of two joint holders of a term obtain the immediate freehold, his moiety of the term will merge; or conversely if the sole owner of a term obtain the immediate freehold jointly with another, one moiety of the term will merge, and the joint ownership of the freehold will continue, subject only to the remaining moiety of the term {t).

Surrender.

Surrenders now to be by deed.

Accidental merger.

(s) Stat. 8 & 9 Vict. c. 106, s.3, repealing stat. 7 & 8 Vict. c. 76, s. 4, to the same effect.

(t) Sir Ralph Borey's case, 1 Ventr. 193, 195; Co. Litt. 186 a; Burton's Compendium, pl. 900.

Merger being a legal incident of estates, occurs quite irrespective of the trusts on which they may be held; but equity will do its utmost to prevent any injury being sustained by a cestui que trust, the estate of whose trustee may accidentally have merged (u). The law, however, though it does not recognize the trusts of equity, yet takes notice in some few cases of property being held by one person in right of another, or in autre droit, as it is called; and in these cases the general rule is, that the union of the term with the immediate freehold will not cause any merger, if such union be occasioned by the act of law, and not by the act of the party. Thus, if a term be held by a person, to whose wife the immediate freehold afterwards comes by descent or devise, such freehold, coming to the husband in right of his-wife, will not cause a merger of the term (or). So, if the owner of a term make the freeholder his executor, the term will not merge (y); for the executor is recognized by the law as usually holding only for the benefit of creditors and legatees; but if the executor himself should be the legatee of the term, it seems that, after all the creditors have been paid, the term will merge (z). And if an executor, whether legatee or not, holding a term as executor, should purchase the immediate freehold, the better opinion is, that this being his own act, will occasion the merger of the term, except so far as respects the rights of the creditors of the testator (a).

There was until recently another method of disposing of a term when the purposes for which it was created had been accomplished. If it. were not destroyed by a proviso for cesser, or by a merger in the freehold, it might have been kept on foot for the benefit of the owner of the property for the time being. A term, as we have seen, is an instrument of great power, yet easily managed; and in case of a sale of the property, it might have been a great protection to the purchaser. Suppose, therefore, that, after the creation of such a term as we have spoken of, the whole property had been sold. The purchaser, in this case, often preferred having the term still kept on foot, and assigned by the trustees to a new trustee of his own choosing, in trust for himself, his heirs and assigns; or, as it was technically said, in trust to attend the inheritance. The reason for this proceeding was that the former owner might, possibly, since the commencement of the term, have created some incumbrance upon the property, of which the purchaser was ignorant, and against which, if existing, he was of course desirous of being protected. Suppose, for instance, that a rent-charge had been granted to be issuing out of the lands, subsequently to the creation of the term: this rent-charge of course could not affect the term itself, but was binding only on the freehold, subject to the term. The purchaser, therefore, if he took no notice of the term, bought an estate, subject not only to the term but, also, to the • rent-charge. Of the existence of the term, however, we suppose him to have been aware. If now he should have procured the term to be surrendered to himself, the unknown rent-charge, not being any estate in the land, would not have prevented the union and merger of the term in the freehold. The term would consequently have been destroyed, and the purchaser would have been left without any protection against the rent-charge, of the existence of which he had no knowledge, nor any means of obtaining information. The rent-charge, by this means, became a charge, not only on the legal seisin, but also on the possession of the lands, and was said to be accelerated by the merger of the term (b). The preferable method, therefore, always was to avoid any merger of the term; but, on the contrary, to obtain an assignment of it to a trustee in trust for the purchaser, his heirs and assigns, and to attend the inheritance. The trustee thus became possessed of the lands for the term of 1,000 years; but he was bound, by virtue of the trust, to allow the purchaser to receive the rents, and exercise what acts of ownership he might please. If, however, any unknown incumbrance, such as the rent-charge in the case supposed, should have come to light, then was the time to bring the term into action. If the rent-charge should have been claimed, the trustee of the term would at once have interfered, and informed the claimant that, as his rent-charge was made subsequently to the term, he must wait for it till the term was over, which was in effect a postponement sine die. In this manner, a term became a valuable protection to any person on whose behalf it was kept on foot, as well as a source of serious injury to any incumbrancer, such as the grantee of the rent-charge, who might have neglected to procure an assignment of it on his own behalf, or to obtain a declaration of trust in his favour from the legal owner of the term. For it will be observed that, if the grantee of the rent-charge had obtained from the persons in whom the term was vested a declaration of trust in his behalf, they would have been bound to retain the term, and could not lawfully have assigned it to a trustee for the purchaser.