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This takes place where the goods of two or more persons become mixed together so that they cannot be separated. There is a difference between confusion and commixtion. In the former it is impossible, while in the latter it is possible, to make a separation.
When the confusion takes place by the mutual consent of the owners, they have an interest in the mixture in proportion to their respective shares. But if one willfully mixes his money, corn or hay with that of another man, without his approbation or knowledge, the law, to guard against fraud, gives the entire property without any account, to him whose original dominion is invaded and endeavored to be rendered uncertain, without his consent.
There may be a case neither of consent nor of wilfulness in the confusion of goods; as where a bailee by negligence, unskilfulness or inadvertence, mixes up his own goods of the same sort with those bailed; and there may be a confusion arising from accident and unavoidable casualty. In the latter case of accidental intermixture, the rule, following the civil law, which deemed the property to be held in common, might be adopted. It would make no difference whether the mixture produced a thing of the same sort or not as; if the wine of two persons were mixed by accident.
But in cases of mixture by unskilfulness, negligence or inadvertence, the true principle seems to be that if a man having undertaken to keep the property of another distinct form mixes it with his own, the whole must, both at law and in equity, be taken to be the property of the other, until the former puts the subject under such circumstances that it may be distinguished as satisfactorily as it might have been before the unauthorized mixture on his part.
When the qualities of debtor and creditor are united in the same person, there arises a confusion of rights which extinguishes the two credits; for instance, when a woman obliges marries the obligor, the debt is extinguished. There is, however, an excepted case in relation to a bond given by the husband to the wife; when it is given to the intended wife for a provision to take effect after his death. A further exception is the case of a divorce. If one be bound in an obligation to a feme sole and then marry her, and afterwards they are divorced, she may sue her former husband on the obligation, notwithstanding her action was in suspense during the marriage.
Where a person possessed of an estate becomes, in a different right, entitled to a charge upon the estate; the charge is in general merged in the estate and does not revive in favor of the personal representative against the heir; there are particular exceptions, such as where the person in whom the interests unite is a minor and can therefore dispose of the personalty, but not of the estate; but in the case of a lunatic the merger and confusion was ruled to have taken place.