Litle v. Ott's Heirs

after stating fully the facts of the case, and the argument to show that the ground-rents sold by Mr. Bailey to Mr. Key included the ground rent of the lot sold to George Magruder, delivered the opinion of the Court.

Mr. Bailey’s deed to George Magruder passed only the legal estate in the term for years which Mr. Bailey possessed. It could not, contrary to his will, transfer any equitable right which he possessed ; so that Mr. Magruder, in consequence of that deed, acquired no right to call upon Mr. Key to convey to him the reversion in fee, even if he had received notice of that deed, of which there is no evidence; so that he stood in the predicament of a purchaser of a legal estate without notice of an' equitable incumbrance, if any existed.

It is true that the words of the deed are sufficient to carry the fee if Mr. Bailey had been competent to convey a fee; but as he was not, they can only be used as evidence of his intention to convey a fee. But he used also other words which are not usual nor necessary in conveying a fee ; and which are appropriate to the conveyance of a chattel interest only; namely, “ executors and administrators.” The expressions are, “ To have and to hold the said lots or parcels of land, unto the said George Magruder, his heirs, executors, administrators, or assigns, forever.” The property conveyed by that deed consisted not *419only of the lot in question, but of “ the half square opposite to where Col. William Deakins formerly lived,” “ and a tract of land on the west side of the eastern branch,” &e., containing 206 acres ; so that the word “ heirs,” was necessary to the conveyance of the whole estate in part of the property, and may have been intended to be confined to that part of the property to the conveyance of tvhich it was necessary, and the words, “ executors and administrators,” may be considered as appropriated to the chattel interest. The use of the word “ heirs,” therefore, is not conclusive evidence of the intention, nor is there any other evidence that it was the belief or understanding of Mr. Magru-der at the time of the contract, that he was purchasing the fee-simple ; and we have seen clearly, from the contract and conduct of Mr. Bailey, that such was not his intention or understanding. We think, therefore, that Mr. Magruder had no equity which he could set up against Mr. Key’s legal estate in the ground-rents. It is certain that the reversion in fee did not pass to Mr. Magru-der, and Dr. Ott could not, at the marshal’s sale under a fieri facias against Mr. Magruder, acquire any thing more than Mr. Magruder’s legal title, such as it was. He could acquire only the legal estate in the term for years.

It was contended in argument, that when the tenant for years, obtained an equitable title to the reversion in fee, the term merged in the equitable reversion. But merger is the legal effect of the coincidence of legal rights only. There is no instance of the merger of a legal title in an equitable, so as to extinguish the legal title. The cases cited by Preston, in" his treatise upon the doctrine of Merger, in p. 7, 25, 28, 566, 569, are decisive upon this point. The dicta cited from 3 Yeates, 124, and 2 Binney, 138, in Phillips v. Clarkson, are loose, and rather inaccurate admissions.by the Court; and it is evident that the Court was not contemplating the distinction between the coincidence of a legal with a superior legal estate, and that of a legal with an equitable estate. The reference which the judge makes is evidently to the common legal doctrine of merger.

Mr. Key and his heirs seem to have been in the uninterrupted seizin of the reversion and the ground-rent, from January, 1800, to the year 1825, when this dispute originated; so that they are protected by limitation of time as well as by an actual legal title.

We are therefore of opinion, that the title of the late John Ott, the ancestor of the defendants, Mary C. Beatty and John W. Ott, was a chattel interest, — a term.for years, and not a fee-' simple, — and that the reversion in fee is in the defendants, the *420heirs of the late P. B. Key. and that the right to the term of years is in the administrator de bonis non of the said John Ott.

Decree accordingly.