§ 1268. A term of years may, also, be determined by a surrender. Surrender is the yielding up of an estate for life or years to him that hath the next immediate estate in reversion or remainder, whereby the lesser estate is drowned by mutual agreement;1 or, generally, it is the restoration of an estate to him who has the superior title.
1 Atkins v. Chilson, 11 Met. 112. 2 Ibid.
3 2 Black. Comm. p. 177.
4 4 Kent, Comm. lect. 56, p. 99; 2 Black. Comm. 177; Co. Litt. 338, b; 1 Rol. Abr. 934, 1. 16; Platt v. Sleap, Cro. Jac. 275; 1 Bulst. 118; Bac. Abr. Leases, R.; James v. Plant, 4 Ad. & El. 749. See 3 Preston on Conveyancing, and Bissett on Life-estates, titles Merger, Sev-eralty.
§ 1269. The third section of the Statute of Frauds2 enacts "that no leases, estates, or interest, either of freehold, or term of years, or any uncertain interest of, in, to, or out of any messuages, manors, lands, tenements, or hereditaments, shall be assigned, granted, or surrendered, unless it be by deed, or note in writing, signed by the party so assigning, granting, or surrendering the same, or their agents thereunto, lawfully authorized by writing, or by act and operation of law."
§ 1270. It will be observed that the exception allowed in favor of parol leases for less than three years does not obtain in favor of assignments, grants, or surrenders; and that the statute absolutely requires that an assignment, grant, or surrender be in all cases in writing. Where a parol assignment, therefore, was made of a lease from year to year, which had been granted by parol, it was held to be void under the statute.3 It is not, however, necessary that an assignment should be by deed.4
§ 1271. Under the statute, a mere executory agreement, in writing, to surrender, which is not acted upon by both parties, will not determine the tenancy.5 But if, pursuant to such agreement, the parties do acts inconsistent with the tenancy, the new agreement operates as a surrender. Thus, if, in pursuance of an agreement to surrender, the landlord take possession, and occupy the premises, the tenancy is thereby determined.6 The erasure or cancellation of a lease will not, however, operate as an extinguishment of the estate, without a written surrender.1 So, where a lessee for years conveys his leasehold interest to his lessor, who is owner of the fee, by an instrument in the form of the lease which he received, the instrument will operate as a surrender of the lease.2 The surrender of a lease by a tenant before the expiration of the term will not defeat the rights of other parties previously acquired in his interest, as sub-tenants or mortgagees of his fixtures.3
1 Co. Litt. 337, 6.
2 29 Car. II. ch. 3, § 1.
3 Bottiug v. Martin, 1 Camp. 317; Preece v. Corrie, 5 Bing. 25.
4 Farmer v. Rogers, 2 Wils. 26; Beck v. Phillips, 5 Burr. 2827; Poult-ney v. Holmes, 1 Str. 405. But in Harker v. Birkbeck, 3 Burr. 1556, Lord Mansfield said that " an assignment must be by deed."
5 Doe v. Johnston, M'Cl. & Y. 141; Johnstone v. Hudlestone, 4 B. & C. 922; 7D.& R. 411; Coupland v. Maynard, 12 East, 134.
6 Hamerton v. Stead, 3 B. & C. 478; Williams v. Sawyer, 3 B. & B. 70; Parmenter v. Webber, 2 Moore, 656; Livingston v. Potts, 16 Johns. 28; Elliott v. Aiken, 45 N. H. 30.
§ 1272. The statute allows a surrender, however, not only in writing, but "by act and operation of law." A surrender in law is a surrender which is implied from the acts of the parties, whenever they are so inconsistent with the relation of landlord and tenant as manifestly to indicate an intention on both sides to determine it.4 As where a lessee for a certain term accepts a lease for a different or shorter term,5 or where both parties actually substitute, by agreement, another tenant.6 The express consent, however, of all the parties is necessary to create a surrender at law. And the acts done must be unequivocal; for if they be susceptible of an explanation at variance with the intention of surrendering the lease, they will not be considered as a surrender.1 Thus, if the landlord put up a bill in the window of premises, signifying that they are to be let, after the tenant has quitted without notice, it will not be considered as an act implying a surrender; because it is easily explicable upon a different supposition; for the letting might be for the benefit of the lessee.2 So, also, if during a letting from year to year the landlord, with his tenant's consent, accept and treat a third person as his own tenant, it amounts to a surrender, in law, of the original tenant's interest.3 But it must be a clear case of substitution, and merger of the old tenant's interest; and merely taking rent from the new occupier is not sufficient.4 The rule of law, as now settled by the recent cases, is that any acts which are equivalent to an agreement on the part of a tenant to abandon, and on the part of the landlord to resume possession, amount to a surrender by operation of law.5
1 Miller v. Manwaring, Cro. Car. 499; Roe of Berkeley v. Arch, of York, 6 East, 86; Doe v. Thomas, 9 B. & C. 288; Magennis v. McCul-logh, Gilb. Eq. Cas. 236; Wootley v. Gregory, 2 Y. & J. 536. A mere cancellation of a lease by mutual consent does not destroy the estate vested in the lessee, and he is still liable to an action for the rent upon the demise. Ward v. Lumley, 5 H. & N. 87 (1860).
2 Shepard v. Spaulding, 4 Met. 416.
3 London Loan Co. v. Drake, 6 C. B. (n. s.) 797 (1859). See, also, Piggott v. Stratton, 29 Law J. Ch. 1; McKenzie v. Lexington, 4 Dana, 130; Baker v. Pratt, 15 I11. 571.
4 See Grimman v. Legge, 8 B. & C. 324; Dodd v. Acklom, 6 M. & G. 672; Gore v. Wright, 8 Ad. & El. 118; Lyon v. Reed, 13 M. & W. 285; McKinney v. Reader, 7 Watts, 123; Phene v. Popplewell, 12 C. B. (n. s.) 334 (1862). In order to effect a surrender by act or operation of law, there must be a mutual agreement between the lessor and the original lessee that the lease shall terminate, but it is not necessary that this agreement should be express; it may be inferred from the conduct of the parties. Bedford v. Terhune, 30 N. Y. 453 (1864).
5 Bernard v. Bonner, Aleyn, 59; Whitley v. Gough, Dyer, 140, b; Ive v. Sams, Cro. Eliz. 522; 5 Rep. 11; Gybson v. Searls, Cro. Jac. 84; Hildreth v. Conant, 10 Met. 298; Kelly v. Waite, 12 Met. 300; Smith v. Niver, 2 Barb. 180.
6 Bailey v. Delaplaine, 1 Sandf. 5; Nicholls v. Atherstone, 11 Jur. 778; 10 Q. B. 944; Stone v. Whiting, 2 Stark. 235; Mollett v. Brayne, 2 Camp.
103; Simers v. Saltus, 3 Denio, 214; Thomas v. Cook, 2 B. & Ald. 119; Hesseltine v. Seavey, 16 Me. 212; Whitney v. Meyers, 1 Duer, 266.
1 Greider's Appeal, 5 Barr, 422; Doe v. Courtney, 12 Jur. 454; Creagh v. Blood, 3 Jones & Lat. 133. And see Griffith v. Hodges, 1 C. & P. 419; Doe v. Johnston, McClel. & Y. 141; Mollett v. Brayne, 2 Camp. 103; Bessell v. Landsberg, 7 Q. B. 638.
2 Redpath v. Roberts, 3 Esp. 225; Mills v. Bottomly, Selw. N. P. 1829; Marseilles v. Kerr, 6 Whart. 501.
3 Reeve v. Bird, 1 C, M. & R. 31; 4 Tyrw. 612; Thomas v. Cook, 2 B. & Ald. 119; Phipps v. Sculthorpe, 1 B. & Ald. 50; Walls v. Atcheson, 11 Moore, 379; 3 Bing. 462; Weddall v. Capes, 1 M. & W. 50; Walker v. Richardson, 2 M. & W. 882; Bailey v. Wells, 8 Wis. 141.
4 Graham v. Whichelo, 1 C. & M. 188. See McDonnell v. Pope, 9 Hare, 705; 13 Eng. Law & Eq. 11; Barlow v. Wainwright, 22 Vt. 88.
5 Talbot v;. Whipple, 14 Allen, 180 (1867); Phene v. Popplewell, 12 C. B. (n. s.) 340; Dodd v. Acklom, 6 M. & G. 672.
6 Where a lease containing a personal covenant for the payment of rent is surrendered, the personal covenant is independent of the estate in the property, and, as to rent previously due, is not affected by the surrender, but the lessor remains a specialty creditor for the rent which accrued before the surrender. Attorney-General v. Cox, 3 H. L. C. 240 (1850).