Millard v. McMullin

(dissenting):

On November 1st, 1861, John McMullin, legally as to one half, equitably as to the other, was the owner of a peiqjetual lease of a farm from Morgan Lewis. Robert J. Livingston was the owner of the rents reserved. The rent was in arrear about $600.

Livingston and McMullin entered into a contract of sale that day. Livingston agreed to sell the farm to McMullin, for $1,080, in six equal annual payments, which McMullin agreed to pay. In case of failure to perform, Livingston was to have a right to re-enter, and McMullin was to forfeit all legal and eguitdble claim, and to be deemed a tenant at sufferance, and Livingston to have the right to immediate possession. On fulfillment of the contract, Livingston was to execute a deed with warranty, except as against persons holding a lease from Morgan Lewis.

The question is: "Whatwas McMullin’sinterest in the land, after the execution of that contract ? ILe made two payments thereon before the recovery of the Millard and Prisbee judgment, which was in December, 1867.

• There was no merger of the lease in the contract; for McMullin obtained no legal estate by the contract. There was not strictly a surrender of the lease to Livingston, for, in strict language, a surrender must be to a remainderman or reversioner. And Livingston liad no reversion or remainder.

But, by making that contract, did not the parties practically release and annul the lease, and substitute therefor a different agreement? And is not McMullin estopped from asserting the existence of the lease, after the contract is in force ? (Springstein v. Schemerhorn, 12 Johns., 351.)

*581After the contract was executed, Livingston could not have sued MeMullin on any of the covenants -in the old lease, for rent, etc. He could not have collected the rent in arrear, as rent.

The lease has a clause of re-entry and forfeiture, after non-payment of rent for thirty days. The new contract provides for re-entry and forfeiture, without any delay, on non-payment of installments. Clearly, then, the rent was at an end. If, then, McMullin’s estate remained as it‘was before, free from rent, he needed no deed from Livingston.

It seems to me .that, by this contract, the parties voluntarily changed their position' as they might then do, since no third party had any rights in the farm. Instead of landlord and tenant under a perpetual lease, they became vendor and purchaser, with possession in the purchaser. For the contract says, on non-payment of installments, MeMullin shall lose all claim, legal and equitable; shall be a mere tenant at sufferance; and Livingston shall be entitled to immediate possession. How is it possible, after this, that MeMullin could be a tenant in fee, subject only to the payment of rent. The parties might have contracted simply for the release, or quit-claim, of the rent. But that would have needed different language, and no agreement to warrant.

It may be said that Livingston had no estate to sell. But he had the right to enforce the forfeiture of the lease for non-payment of rent, long in arrear. And if the parties chose to act upon a practical or implied forfeiture, by entering into a contract for purchase, and by ceasing to stand as landlord and tenant, I think they could do so.

It seems to me, therefore, that after November 1,1861, MeMullin had no legal estate, and had only a contract. This is not subject to levy. (1 B. S., [m. p.] 744, § 4.)

Again. If, as the Special Term held, MeMullin had an estate, and, by levy under the judgment of 1867, it was sold and a deed given to plaintiff, he ought to bring ejectment to recover the land. He is not in possession. He asks that he be declared owner of the premises, and sundry other matters, and that he have possession. The Special Term adjudged that he was owner, subject to the landlord’s interest, which Bell now owns.

The court further adjudge that the property be sold to pay Bell’s *582lien. Bell never asked this, and now appeals from it. The plaintiff never asked it. And it is not a proper relief in an action of ejectment. 'If Bell stands as the assignee of the landlord’s (so to call him) rights under the contract, he has not any lien for which the property can be sold. Livingston did not have a Men, after the contract was made, in whatever light the contract be looked upon.

If the payment by Bell to Livingston be looked upon as a jpurchase by Bell (as the Special Term seems to have held), then Bell stands in Livingston’s place. His right to forfeit the land for non-payment of the installment, cannot be turned into a lien against his will.

If the payment by him be looked upon as a performance of the contract, then there is nothing for which a lien can exist.

Judgment affirmed, with costs.

By reference to the findings of fact in the court below, it appears that the judgment under which plaintiff claims title, was recovered and docketed in December, 1867. At that time defendant John McMullin, as one of two heirs of Angus McMullin, and as equitable assignee or purchaser from the other heir, was the -owner of a durable léase of a farm in said county of Delaware, where said judgment was docketed. Prior to the last date, and in 1861, John McMullin made an executory contract with his landlord for the purchase of the landlord’s remaining interest in the soil and rents reserved. This contract was never performed by McMullin, nor did he ever receive any deed under it. Defendant Bell became the assignee of such contract, in 1871, and, upon full payment and performance by him, obtained a deed of the landlord’s interest. •

It is claimed by the appellants, that the plaintiff’s judgment never became a lien upon the land, for the reason that McMullin’s durable lease and his title under the same became merged, in 1861, in the contract which he then made with his landlord for the purchase of his remaining interest in the property. In other words, the appellants claim that McMnllin’s freehold estate under his lease in fee, was merged in his 'executory contract to purchase his landlord’s rents reserved and rights of forfeiture and re-entry for nonpayment of rent. The statement of the proposition would seem to be a sufficient answer. A greater estate is not merged in a *579smaller estate. (4 Kent Com., 99; James v. Morey, 2 Cow., 246.) The greater estate remains. If we concede that the contract gave McMullin an estate, it was not a greater estate than he before that possessed, and consequently could not drown it. But the contract did not give McMullin any estate. It was an executory agreement to convey upon payments to be made. McMullin, therefore, had but an equity. Where legal and equitable estates in land unite in the same person, the equitable is merged in the legal, and ceases to be recognized in equity. (James v. Morey, supra; Nicholson v. Halsey, 1 Johns. Ch., 417.) But the equitable interest in this case was not coextensive with the legal estate, and would not. therefore merge at all. In my opinion no merger could take place until an actual conveyance by the landlord of his remaining interest to the person owning the durable lease. That has never occurred.

Besides, merger is generally, if not always, a question of intention. The acts of McMullin do not indicate an intention that a merger should take place. He assigns the contract without assigning the lease. He mortgages his leasehold estate to. secure the debt due to Daniel for the purchase-price of his half. This he could not do if the legal estate had been merged in the contract, because by the contract he had no estate to mortgage. It would be extravagant to suppose McMullin intended to extinguish his legal estate under his lease, and accept, instead, a mere executory contract for the purchase of the fee.

If these conclusions are well founded, the judgment under which plaintiff claims title became a lien upon McMullin’s premises in 1867, and through such judgment and the sale thereunder the plaintiff became the owner of McMullin’s title and interest, subject to the equities of Bell, as assignee of the contract and of the mortgage given to Daniel, and as owner of the landlord’s interest. Such equitable interest of Bell is in the nature of a mortgage upon the estate, and was properly chargeable with the amounts realized by Bell from the estate while in his possession and leased by him. The sum of $322.60, realized by Bell from the property, was justly deducted from the amount found due Bell by the Special Term.

Daniel’s title and interest are not in issue in this case. In allowing Bell the amount of Daniel’s-equitable lien, the court went to the extreme limit in Bell’s favor. If Daniel still holds and owns *580Ms title, then such allowance should not have been made to Bell. As the plaintiff has not objected to such allowance, I do not. think Bell can be permitted to object to the finding of the court whereby the allowance becomes possible.

The findings and decision of the court appear to me quite too favorable to defendant Bell; notably in omitting to deduct the $120, paid by McMullin upon the contract of 1861, by way of interest.

.As no injustice has been done the appellants, and no error calling for a new trial, the judgment must be affirmed with costs.