ecutors let to the plaintiff, and the only question was, if the acceptance of the second lease by A had determined, *discharg- * [ 259] ed, or extinguished the first lease, so as to let in the intermediate lease to B; it was adjudged, that it had not, because, by the lease to B for ninety-nine years, and his entry, the lessor had but a reversion, and could by his contract afterwards with A give any interest to A; and the first lease to A was good as a future interesse termini, to take effect in possession when the time came, and, thereby, pro tanto, to defeat the lease for ninety-nine years to B; and if it had not been for the lease to B, there would have been no question but that the first lease to A had been, by the acceptance of the second lease, surrendered, but that the intermediate lease, being for so great a number of years, disabled him, during that time, from contracting for any less number of years, as a lease for forty-one years only.

doctrine of

tion.

This surrender, by implication, being, as it seems, wholly of the exfounded on the supposed intention, may be reasonably inferred, tent of the wherever the new interest is inconsistent with the subsisting surrenders lease; there are, accordingly, many examples in the books of by implicasurrenders taking place upon this principle of construction, where the doctrine of merger, is as much out of the question as in the case above-mentioned, wherein a second lease, though void in law, operated as a surrender of the first. If a man accepts from his lessor a new interest, which could not have been effectually granted to him, without his having previously relinquished his interest under the demise, the law will interpret his acceptance of

the new benefit into an abandonment or surrender of the old, Quando aliquis per chartam aliquid accipit, omnia fecisse videtur sine quo res esse non potuit. Thus, where the lessee for years of an advowson was presented to the advowson by his lessor, it was adjudged to be a surrender of his term,(6) on the same principle on which it is held, that if a copyholder in fee, takes a lease from his lord of the same land, the copyhold(c) is extinguished in perpetuum.(99) So it has been adjudged, that if a lessee *takes a (b) 2 Rep. 17 a.

(c) 4 Rep. 31 b.

(99) But if the copyholder takes a lease for years, of the manor itself, this is but a suspension of his copyhold during the term. And note, in this diversity, how much more extensively the implication from inten: tion operates than the doctrine of merger.

Of the sur

render implied from the inconsistency of

the second with the

first interest.

* [260],

The consistency or inconsistency of the two interests, furnish the

whether a

or is not produced.

grant from his lessor, of a rent-charge out of the same land, or of common, or even of estovers, his lease is surrendered in law. And the same consequence by implication from his acts will arise, if he accepts a new lease from his lessor, de vestura terra.(d)

Upon this ground of making the consistency or inconsistency of the several interests the criterion for judging whether a surrender has or has not been produced, it was determined, that, where a lessee for years, accepted a grant of a rent from him in the recriterion for version, payable at such feasts, but without any time limited for judging its commencement, this was no surrender of the lease, because it surrender is did not appear but that it might be intended that the rent should take place, out of the reversion, after the expiration of the lease ;(100) but if the rent was granted to commence at a certain time within the term, such acceptance thereof by the lessee, would work a surrender of his lease.(e) Again, if a lessee for years accept a lease from his lessor, of all his lands in D. (where the premises in the first lease lie) this is no surrender, because of the possibility that other lands, exclusively of those comprised in the first lease, were only intended. And there must be a necessary inconsistency in the interests to make a surrender in law. Therefore, if a lessee for years of a manor, is made bailiff or steward thereof, this has been adjudged to be no surrender of the * [261] term ;(101) for a bailiff or steward has no interest but *merely an office collateral to the land, and, furthermore, it is no permanent thing, but determinable at the pleasure of the lord.

A new lease

Upon the same reasons, if a lessee for years of lands, accepts a of part of the new lease, by indenture, of part of the same lands, this is a surlands already in lease, render for that part only, and not for the whole, because there is operates a no inconsistency between the two leases, for any more than that surrender of that part on part only, which is so doubly leased; and though a contract for

ly.

(d) 2 Roll. 496. per curiam.

(e) 2 Roll. Abr. 496. in Sible and Serle's case,

(100) Such original grant of a rent de novo is good, but a grant of a rent-charge in esse to take place in future, would not stand with the law. See Plowd. 156. Bro. tit. Grant, 86. Palm. 29.

(101) See Gybson v. Searl or Searls, Cro. Jac. 84, 176, which seems to be the same case as that cited in 2 Roll's Abridgment, 496, by the name of Sible and Serle's case.

years cannot be so divided or severed as to be avoided for part of the years, and to subsist for the residue, either by act of the party, or by operation of law, yet the land itself may be divided or severed; and the lessee may surrender one or two acres, either expressly or by act in law, and yet the lease for the residue shall stand good and untouched, because, in such case, the contract for the residue remains entire; whereas, in the other case, the contract for the whole would be divided, which the law will not permit.(f)

In correspondence with these reasons on which this surrender, The surrenby operation of law, has been properly grounded, this species of der by implication has, surrender will, in some cases, be found to have a stronger effect in some than an express surrender by deed. Thus, according to Lord cases, a stronger efCoke,(g) ́if a man make a lease for years to begin at Michaelmas fect than the next, this future interest cannot be surrendered, because there is express surrender. no reversion wherein it may drown, but by a surrender in law it may be drowned; as, if the lessee before Michaelmas take a new lease for years, either to begin presently or at Michaelmas,(102) this is a surrender in law of the former lease.

*PART III.

Conveyances of Lands.

*[262]

cestors.

HAVING treated at some length of those interests in lands, of the prowhich, by virtue of the second section of the statute of frauds, gress of the power of amay yet be created without writing, and of the modes by which lienation ainterests in lands may be surrendered, the next subject of review mong our anwill be the operation of the same statute on conveyances, assignments, and transfers of lands, which will properly form the last head of this fourth chapter. A short outline of the history of the changes which have taken place, under the influence of preceding statutes, seems proper to introduce the reader to this subject of the provisions of the statute of frauds; in tracing which (f) See 4 Bac. Abr. 217. 2 Roll. Abr 498. (g) Coke Litt. 338 a

(102) Which seems contrary to the book, 3 H. 6, 18, where it is said, that the acceptance of a future interest, is no surrender of another future interest. See 2 Roll. Abr. 496, pl. 13.

*[263]

outline, the object of the writer will be, only to show the steps whereby the legislature has advanced to those cautious requisitions, to which it has, by the first and third sections of this statute, subjected all transfers and assignments of lands and tenements; and by the seventh and ninth sections, all creations and assignments of trusts and confidences of this description of property. One is tempted, on a subject of so much curiosity, to carry back the inquiry to those infantine stages of society, in which the newly acquired agricultural interests in land first established the notions of property in the immoveable possession of the soil itself; to contemplate the jealousy of alienation, founded upon the relation and exclusive union of blood and family, by which the first ages of the world appear to have been characterized,(103) and which seem to have been as old as property and society itself; and again, to observe this jealousy branch out into positive prohibitions, when the feudal principles of restraint were ingrafted,(4) among our northern progenitors, on these primitive propensities. The temptation is still greater, to trace the gradual liberation of property from these narrow limitations, under the influence of an expanding intercourse, and the progress of commercial communication: and to pursue the progressive steps from an almost absolute restriction of alienation, to the first apprehension of a distinction between acquired and descended property,(i) and between socage and military fiefs,(k) and, at length, to that liberal subjection of lands as well as moveables to the demands of commercial interchange in the burghs and trading cities; which so spread the appetite for alienations in this country, that, in an era of young, though ripening policy, the frequency of the practice became an article of coercion in the great charter itself.(104) From these embryon struggles of trade, which an

4 tit. 45, edit. Cujac. Leg. Hen. 1, No. 7, Glanv. lib. 7, c. 1. (k) Bract. lib. 2, cap. 5, s. 4.

(103) See in the fourth chapter of the book of Ruth, an example of the Jus Retractus, and the anxiety to redeem the family inheritance. See also the 22d chapter of Jeremiah.

(104) Cap. 32. It is remarkable, that in the reign of Edward the Second, the statute of prerogativa regis, borrowed from Magna Charta an unjust exception for the prince out of the statute of quia emptores, by reviving the clause of restraint upon alienation as against the vassals

nounced the future birth of a system that was to triumph over every prejudice and every badge of feudal servitude, it would be interesting and instructive to carry our regards to the early display of the same spirit prompting to alienations, but still on the feudal plan, by subdividing and multiplying the feudal tenures and relations, till, in the intelligent reign of the first Edward,(/) the statute of quia emptores combined the power of alienation in the vassal, with the preservation of the fruits of the tenure to the lord.

*The progress and successive periods of the decay of these te- *[264] nures, from the passing of the act of quia emptores, to the final destruction of them by the 12th of Charles the Second, when the removal of the restraint upon testamentary disposition, the last surviving bar upon the alienation of landed property, was incidentally accomplished by the abolition of military services and tenures, exhibits the rapid evolution of the wisdom of our ancestors in a view too striking not to have tempted the writer to hazard a digression in this part of his work, upon these objects of inquiry. He yields, however, to the pressure of haste, and the apprehension of consequent error; and ventures only, upon a short sketch of those legislative provisions, which, as the power, of alienation has expanded itself, have become necessary to pre vent secret and precipitate transfers to the prejudice of the rights and claims of third persons, or the interests of the parties themselves.

In the rudest state of society in this country, some solemnity beyond mere words importing the consent of the parties, was necessary to the transfer of property in land; the object of which solemnity was to give notoriety to a transaction that was to determine the reciprocal rights and obligations of mankind in respect to this important description of property. The fruits of tenures, the claims of persons having right, the recovery of debts, the se curity of tenants, have, at different times, with different weight,

(/) 18 Ed. 1.

of the crown in capite. But note, that this revival did not extend to the tenants in soccage of the crown; and that by the 1st Edw. 3, c. 12, this exception in favour of the prince was, in effect, repealed.

r f