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could pass nothing without deed. But if the second lease exceed the duration ol' the subsisting lease, then an interesse termini may pass by writing only, as it might, before the statute, have been created by word of mouth. And where the second lease is commensurate in extent with the first, a deed poll(95) will cany the reversion, and draw after it the title to the rents and services of the first lessee, without attornment, since the statute of Anne.
AT common law, surrenders of estates for life or years were What »urgood if made by parol, except where the subjects were such as J^^TMi^ could not pass without deed, by reason of their nature and quality; deed atcomwhich was the case with respect to those things which are said mon to lie in grant, as all incorporeal hereditaments. An advowson or rent, therefore, could not, nor can they at this day, be surrendered without an instrument sealed and delivered, for they are incapable af being passed without it. And remainders, though of lands which of themselves *might pass without deed by delivery ,^ 24g ^ and seisin only, inasmuch as they are the proper subjects of the conveyance by grant, can only be surrendered by deed. If a feoffment, therefore, be made to A for his life, with the remainder to B for his life, B's estate cannot be surrendered without deed, by reason of its nature and quality as a remainder, though the estate might have had its commencement without deed. On the other hand, though an estate was actually created by deed, yet, if it might have been created without it, it is capable of being surrendered without it. Again, though the estate began without deed, as a tenancy by the curtesy, or a tenancy in dower of an advowson or rent, yet, in respect of the nature and quality of the thing, which lies only in grant, it cannot be surrendered without deed. But the surrender of an estate of lands in possession, whether for life or years, might, at common law, and still may be surrendered
(95) An indenture or fine would have still a stronger efficacy; for, by virtue of the estoppel, the second lease would operate as a fresent lease, and the second lessee, even without the possession, would he liable for the rent.
without deed or delivery, because it is only the restoring or yielding up of the estate again to him in the immediate reversion or remainder, which is an act favoured in the law.(m) So a tenant for life, and he in reversion for life, might, at the common law, have joined in a surrender by parol; for, as it seems by Bennett's case,(n) such a surrender would operate first on the part of the lessee for life, towards him in reversion for life, and then as the surrender of him in reversion ; so that before the surrender worked with respect teethe reversion, such reversion would have become an estate in possession, by the previous act of the lessee for life.
Where at Where, at the common law, for the reasons above mentioned, common law a deed was necessary to perfect a surrender, a surrender can still necessary'to on^ ^e effectuated' by the same solemnity; for the statute of perfect the frauds has given no new efficacy to a written instrument, except ttelsamesot- in a neBatiye sense, by withdrawing from parol transactions, in emnity is skill the cases within its provisions, their legal virtue and validity. But anywhere it witn respect to lands in possession, which, at the common law, might have might have been surrendered by word only, without deed or wrirolt" writing l'ng' tne statute has created *a necessity for a written document, is now ne- by enacting,' that no leases, estates, or interests, either of free^r"!?' •. nold or term of vears, or any uncertain interest, not being copyhold or customary interest of, in, to, or out of any messuages, manors, lands, tenements, or hereditaments, shall be surrendered, unless it be by deed or note in writing, signed by the party so surrendering the same, or his agents thereunto lawfully authorised by writing, or by act or operation of law.' By this clause, writing is made essential to a surrender of estates for life or years in possession, but as a deed was not necessary at common law to validate such a surrender, so neither is a deed at this day required for such purpose; it is enough if there is a note in writing without seal. A lease, therefore, since the statute, may be created for any term of years by writing only, and by writing only may be effectually surrendered; and in the case of Farmer v. Rodgers,(o) it was adjudged, that this note in writing required no stamp, though that seems since to have been rendered necessary by the statute, 23 Geo. 3, c. 58.
(m) See Coke Litt. 338 a, (o) 2 Roll. Rep 20. (o)2Wils. 26, and Beck v. Phillips, 5 Burr. 2827.
As to the effect of cancelling the deed, whether such an act Of the effect ... , of cancelling
shall operate as a determination of the interest under a lease, a since the slavery different account seems to have been given' in different tutP places by the same gftjat writer and judge. The treatise on leases and terms for years comprehended in Bacon's Abridgment, and supposed to be the production of Chief Baron Gilbert, under the letter T, thus states the distinction between the several descriptions of property in lease, in regard to the effect of cancelling the instrument or deed, whereby the lease was made. "As to leases for years, owing their existence to the deed or indenture whereby they are created, so that the cancelling or destruction thereof shall destroy and avoid the lease, a diversity seems to be taken in the books between such things as lie in livery, and may be executed by actual entry, and such things as lie only in grant, whereof no actual or manual occupation can be had; therefore, *ifone *[ 250 ] had made a lease for years, at common law, of lands or houses by deed or indenture, and tear, rase, or cancel it, yet this would not destroy the continuance of the lease itself, because such lease of lands or houses lying in manurance, and actual occupation, might at first have been made by parol only, without any deed or ^ indenture: and, therefore, such deed or indenture being not of the essence of the lease, the destruction or cancelling thereof shall not defeat or destroy the lease or interest of the lessee, because his actual entry into the land, and continuance of the visible possession and occupation thereof, give sufficient sanction and notoriety to the contract, as to the interest of the lessee in the lands and houses themselves, though thereby the deed itself, and all covenants* which had their existence only by the deed, are defeated and avoided. But if the King make a lease of such lands or houses, by letters patent, which are matter of record, and the letters patent and enrolment are destroyed or cancelled, the lease itself falls to the ground, because these letters patent and enrolment, which were of the essence of the creation and continuance of the lease, are destroyed and lost. So, if a common person had made a lease for years, or a grant for years, of tithe, common, advowsons, or other thing which lie merely in grant; in such cases the cancelling or destruction of the deed, whereby they were created and subsisted, must necessarily destroy the interest of the grantee likewise, because such deed was of the very essence of the deed or grant, without which it could not have been made at first,
. nor can. subsist afterwards, such deed being the only evidence of the contract, which could not be executed by an actual possession or manual occupation. But now, since the statute of frauds and perjuries, which makes all leases for above three years, to have only the force and effect of leases at will, unless they be in writing, and signed by the party, &c. the deed or writing, whereby such lease is made, seer.,s to be of the same essence as the lease itself; and, therefore, the cancelling or destruction of that, seems to destroy and avoid the lease itself, because it destroys all evidence allowed by law for the support thereof; though in such case * [ 251 ] Chancery frequently 'sets up the lease again, or decrees the party to execute a new one, for the residue of the term, which is not against the prohibition of the act, because there was once a good and effectual lease made pursuant to the statute."
It seems, therefore, in the above passage, which, like the other parts of that excellent title, is written with great clearness of stile and expression, to have been considered, upon good grounds, that the operation of cancelling the deed depended upon the question, how far the instrument itself was essential to the conveyance. Where the subject of the lease lay in grant, it appears that at common law the destruction of the instrument would defeat the interest taken under it, because such instrument was of the essence of the grant; but where the thing lay in livery and manual occupation, the deed being, at common law, the authentication only of the transfer, and not the operative act of conveying the property, the cancelling of the instrument would not involve the destruction of the interest conveyed. But when the statute made writing essential to a lease of hereditaments lying in livery, as well as of those which lie in grant, (which, as we have seen, must always have been by deed) it was thought by the writer of the passage above produced, that the destruction of the deed by cancelling, necessarily drew after it the destruction of the interest itself. A contrary opinion, however, was given by the author of the above observation, when sitting as judge in the case of Magennis v, Maccullough,(/i) where his Lordship held, that" a lease for years cannot be surrendered by cancelling the indenture merely, and without writing; because the intent of that statute was to take away the manner they formerly had of transferring interests in lands, by signs, symbols, and words only; and, therelore, as a lively and seisin on a parol feoffment, was a sign of (/.) Gilb. Eq. Rep. 236.
passing the freehold, before the statute, but is now taken away
by the statute ; so the cancelling was a sitjn of a surrender, before
the *statute, but is now taken away, unless there be a writing » [ 252 ]
under the hand of the party."
As the statute does expressly declare that cancelling a deed shall operate as a legal surrender of the lease, to deduce a consequence by argument, from its particular provisions, in prejudice of its general object, seems to be a very questionable method of exposition; and on this ground, perhaps, the reader will think that the opinion of the Chief Baron last above stated, and which was judicially delivered by him, is entitled to the preference, as well on principles of law, as on account of the more solemn occasion of pronouncing it.
But though, as a general position, what fell from the Chief Baron, in respect to the inadequacy of signs and symbols, to effectuate a transfer of lands, either by surrender or otherwise, since the statute, appears to have been good law, yet it seems there may be particular cases, wherein a court of equity will lend its aid against the statute, to validate a surrender accredited only by these ostensible marks. Thus, in the case of Knatchbolt v. Porter,(y) Sir George Moore being lessee of a house in Hatton Garden, at 60/.per annum, assigned his term to Porter, who covenanted in the assignment to indemnify him against the covenants in the original lease. Sir Charles Rich bought the reversionary interest of the lessor, and treated with Porter to surrender the term, and an assignment was made betwixt them, for that purpose, and the key delivered and accepted: but afterwards, Sir Charles Rich, altering his purpose of living in the house, it stood empty for some years, and then he brings a bill against Sir George Moore, who was the original lessee, to compel him to admit an attornment, in order to his bringing his action at law for the rent; but Porter was made no party to that suit; however, Sir George Moore, in his defence, insisted upon *the agreement made between Sir * [ 253 ] Charles Rich and Porter for the surrendering of the lease, and that the key was delivered pursuant thereunto, &c. But he was overruled in that matter at the hearing, and it was declared he should goto a trial at law, and admit an attornment; but SirGeorge Moore's attorney pleading tnat Sir George neverattorned, upon the. plaintiff's coming back into this court, it was decreed, Sir George should pay the rent arrear, amounting to about 400/. Knatch(?) 2 Vera. 112.