This section is from the book "A Treatise On The Construction Of The Statute Of Frauds", by Causten Browne. Also available from Amazon: A treatise on the construction of the Statute of frauds.
1 Whitehead v. Clifford, 5 Taunt. 518.
2 Doe v. Ridout, 5 Taunt. 519.
4 In Barrett v. Rolph, 14 Mees. & W. 348, although the question was not directly passed upon, it was regarded by both the court and the counsel as entirely settled.
1 McKinney v. Reader, 7 Watts, 123.
2 Greider's Appeal, 5 Pa. St. 422; Kiteser v. Miller, 25 Pa. St. 481. And see Tate v. Reynolds, 8 Watts & S. 91.
3 Strong v. Crosby, 21 Conn. 398. So in Missouri. Koenig v. Miller Brewery Co., 38 Mo. App. 182.
4 Rowan v. Lytle, 11 Wend. 616; Logan v. Barr, 4 Harr. 516. And see Lamar v. McNamee, 10 Gill & J. 116; Chicago Attachment Co. v. Davis Sewing Machine Co., 142 111. 171; Briles v. Pace, 13 Ired. Law, 279; Johnson v. Reading, 36 Mo. App. 306.
§ 47. Upon the question whether a surrender must have an immediate operation, or may take effect in futuro, there is an apparent conflict in the English cases. It is true that the Court of Exchequer has once directly decided2 that a surrender could not be made to take effect in futuro, but the grounds of that conclusion are not stated, and the authorities referred to hardly sustain it. One of them, a case decided two years before, also in the Exchequer, was upon a written surrender to take effect on a future day, and on condition of a certain sum of money being paid. It did not appear that the condition had been performed, and it was held that the surrender had not operated; but Baron Parke expressed his opinion that it should appear to be the intention of the parties that the term should immediately cease, in order to make a valid surrender.3 Another case referred to in support of this doctrine is that of Johnstone v. Hudlestone, in the Queen's Bench, where an insufficient notice to quit was verbally given by the tenant and accepted by the landlord; and there, so far from deciding that there could be no surrender to operate in futuro, one of the judges declined to give an opinion upon the point, and the other expressed his opinion that, if the acceptance by the landlord had been in writing, it would have been a good surrender.1 On the other hand, it was stated by the court, at nisi prius, in Aldenburgh v. Peaple, where a tenant from year to year gave an irregular notice to quit, that if the notice was in writing and signed by the tenant, the landlord might treat it as a surrender of the tenancy.2 In the more recent cases of Williams v. Sawyer, in the Common Pleas,3 Nickellsw. Atherstone, in the Queen's Bench,4 and Foquet v. Moor, in the Court of Exchequer,5 the question seems to have been treated as unsettled. In the Supreme Court of New York the contrary doctrine to that of Doe v. Milward has been held, and supported by reasoning which appears satisfactory. An unsealed agreement was made by a lessee, to relinquish, upon failure to perform certain stipulations, a lease previously executed under seal, and it was decided that the agreement, though inoperative as a defeasance for want of a seal, was valid as a contingent surrender. Cowen, J., in delivering the judgment of the court, said that a surrender, when complete, "is, as it were, a re-demise. It may be made upon condition, that is, to become void upon condition; and, though no case goes so far as to say that a surrender may be made to become good upon condition precedent, yet there seems to be no objection to that in principle, if the interest surrendered be not a freehold. That cannot in general be granted to take effect in futuro, but a term for years can. The surrender of a term, to operate in futuro, is equally free of the objection. Contracts of parties, whether by deed or otherwise, should always take effect according to their real intent, if that be possible consistently with the rules of law." 1
1 In New York, where the statute requires writing for the surrender of "any estate or interest in lands other than leases for a term not exceeding one year," it is held that if less than a year remain of a lease for more than a year, such unexpired term may be surrendered without writing. Smith v. Devlin, 23 N. Y. 364; on appeal from the Superior Court, nom. Allen v. Devlin, 6 Bosw. 1.
2 Doe v. Milward, 3 Mees. & W. 328.
3 Weddall v. Capes, 1 Mees. & W. 50.
1 Johnstone v. Hudlestone, 4 Barn. & C. 922. 2 Aldenburgh v. Peaple, 6 Carr. & P. 212. 3 Williams v. Sawyer, 3 Brod. & B. 70. 4 Nickells v. Atherstone, 10 Q. B. 944. 5 Foquet v. Moor, 7 Exch. 870.
§ 48. It is necessary to a correct understanding of this branch of the statute, that we consider, as briefly as may be, what are those surrenders by act and operation of law, which are expressly excepted from it. In an important case in the Court of Exchequer, it was said that the term "surrender by act and operation of law" is properly applied to cases where the owner of a particular estate had been a party to some act, the validity of which he is by law afterwards estopped form disputing, and which would not be valid if his particular estate continued to exist.2 The great majority of cases, however, appear to place such surrenders upon the broader, and on the whole more satisfactory ground of acts done or participated in by the lessee, from which is to be presumed a clear intention that his previous estate shall cease.3 The most obvious instance under the first definition given above of these surrenders, and one which is said by Mr. Roberts to be the proper example of a surrender by act and operation of law, is where a lessee for life or years accepts from his landlord a new and valid lease of the same premises, to take effect during the time limited for the first tenancy. By accepting such a lease he admits the capacity of his landlord to make it, which capacity could not exist if the old tenancy were not first determined.4
§ 49. If the second lease is void, and the lessee takes nothing under it, a surrender of the first one will not result, whichever definition of surrenders by operation of law we adopt; for the lessee cannot be said to be estopped to dispute the validity of an act equally void whether his old term ceased or continued, nor can he be presumed to intend to surrender his previous tenancy and get nothing in return.1 And it is still farther settled, that if the second lease be not good and sufficient to pass an interest according to the contract and intention of the parties, the acceptance of it is no implied surrender of the previous estate. Although it may be true that accepting a lease which is valid for some purposes and to some extent (as, for instance, a verbal lease for a term exceeding three years), admits the ability of the lessor to make it; yet the other, and, as has been suggested, safer theory of surrenders in law, will save the lessee from the loss of his old estate, when it is obvious upon the face of the transaction that the consideration and inducement for his surrendering it cannot be realized by him.2 Whether a surrender by operation of law follows from accepting a lease which is only voidable and not void, seems uncertain. It has been stated in the Queen's Bench that it does; but later, in the same court, in a case where a bishop made a second lease in consideration of the actual surrender of a former one, and his successor avoided the second lease, the opinion appears to admit that if the surrender had not been an actual surrender in fact but by implication merely from the acceptance of the second lease, the avoiding the latter would have had the effect of reviving the former.3 Probably a due regard to the certainty of land titles would lead us to abide by the older doctrine. But when the second lease is taken with a condition that it shall be void upon a certain contingency, which occurring, the term is lost, the first estate is clearly not revived, for the second lease, when accepted, was good, and extinguished the former once for all.4