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 Allen v. Jaquish, 21 Wend. 635. See Shep. Touch. 307; Woodf. Land. & T. 141; Coupland v. Maynard, 12 East, 134; Allen v. Devlin, 6 Bosw. (N. Y.) 1.
2 Lyon v. Reed, 13 Mees. & W. 285.
3 Davison v. Stanley, 4 Burr. 2210; Wilson v. Sewell, 4 Burr. 1975; Goodright v. Mark, 4 Maule & S. 30; Donellan v. Reed, 3 Barn. & Ad. 899; Roberts on Frauds, 259.
4 Lyon v. Reed, 13 Mees. & W. 285; Van Rensselaer v. Penniman, 6 Wend. (N. Y.) 569.
1 Roe v. Abp. of York, 6 East, 86; Doe v. Courtenay, 11 Q. B. 702. 2 Wilson v. Sewell, 4 Burr. 1975; Davison v. Stanley, 4 Burr. 2210. 3 Roe v. Abp. of York, 6 East, 86; Doe v. Bridges, 1 Barn. & Ad. 847. 4 Fulmerston v. Steward, Plowd. 107 b, Doe v. Poole, 11 Q. B. 716.
§ 50. It is not essential that the second lease should be for a term equal to the unexpired term of the first, nor even that it should be of the same dignity with the first lease. An opinion has been expressed in England, that a tenancy at will would not be allowed to operate as a surrender of a written lease for years, because no such intention could be presumed in the lessee;1 but it is inconsistent with several decisions in that country, and does not appear to have been adopted in this. Thus it is held that where a tenant has bargained for a new lease to himself and another jointly, and, pending the execution of the lease, they enter together and occupy the land, a tenancy either from year to year or at will, according to circumstances, is thereby created, which works a surrender of the original term.2 If, indeed, the old tenant alone contract for a new lease, and, pending the execution of the lease, remain in possession, it may depend upon the intention of the parties, to be collected from the instrument, whether a mere tenancy at will is created and for what time; but if it is created, the old tenancy is thereby determined.3 It is settled in New York, in harmony with this doctrine, that the acceptance of a verbal lease, if a valid one, is a surrender of a previous written lease, by act and operation of law.4
1 Donellan v. Reed, 3 Barn. & Ad. 899.
2 Hamerton v. Stead, 3 Barn. & C. 478; Mellows v. May, Cro. Eliz. 874. See the remarks of the court upon Donellan v. Reed, in Lyon v. Reed, 13 Mees. & W. 285; Doe v. Stanion, 1 Mees. & W. 701. In Foquet v. Moor, 7 Exch. 870, Pollock, C. B., says: "The argument . . . goes to this extent, that if there be a tenancy under a lease, and the parties make a verbal agreement for a sufficient consideration, that instead of the existing term, there shall be a tenancy from year to year, at a different rent, that would be a surrender of the lease by operation of law. I am of opinion that it would not. It would be most dangerous to allow a term created by an express demise to be thus got rid of by parol evidence."
3 Doe v. Stanion, 1 Mees. & W. 695.
4 Schieffelin v. Carpenter, 15 Wend. 400; Smith v. Niver, 2 Barb. 180. See also Dodd v. Acklom, 6 Mann. & G. 672. Of course the remarks in this section are confined to tenancies at will purposely created by the parties, and do not apply to such as may result, for instance, from follow from an actual change of tenancy. When the old tenant quits and a new tenant enters upon the premises, and is accepted as such by the landlord, the interest of the old tenant is fairly surrendered by act and operation of law.1 These are acts so solemn that the parties are estopped to deny them, and they are sufficiently notorious to leave but small room for fraud or perjury in the testimony of witnesses to prove them. This doctrine, resting on a long series of decisions, was strongly condemned in the case of Lyon v. Reed, in the Court of Exchequer; but it was not found necessary to pass directly upon it, and the court simply refused to extend it to reversions or incorporeal hereditaments, which pass only by deed;2 and whatever doubt their opinion may have cast upon its validity was removed by the later case of Nickells v. Atherstone, where the Court of Queen's Bench, while showing that Lyon v. Reed had not overruled the previous cases, reasserted the doctrine which they had established. The facts were that the landlord, by express permission of the tenant, let to another tenant and gave him possession, and afterwards brought an action for rent against the first tenant upon his original agreement. The court sustained the verdict below for defendant on the issue of surrender, and in delivering judgment Lord Denman, C. J., said, taking the definition of a surrender in law which was laid down in Lyon v. Reed: "If the expression 'surrender by operation of law ' be properly 'applied to cases where the owner of a particular estate has been party to some act, the validity of which he is by law afterwards estopped from disputing, and which would not be valid if his particular estate had continued,' it appears to us to be properly applied to the present. As far as the plaintiff, the landlord, is concerned, he has created an estate in the new tenant which he is estopped from disputing with him, and which is inconsistent with the continuance of the defendant's term. As far as the new tenant is concerned, the same is true. As far as the defendant, the owner of the particular estate in question, is concerned, he has been an active party in this transaction, not merely by consenting to the creation of the new relation between the landlord and the new tenant, but by giving up possession and so enabling the new tenant to enter." 1
§ 51. The theory that such surrenders depend upon the presumed intention of the parties has been carried, perhaps, to an extreme in New York. It appeared that the lessee had a good title, by the first lease, to all that the second lease purported to convey, besides the personal covenant of the lessor for the payment of improvements; that the first lease was for three lives, and the second only for one of them; and that no surrender was in fact made of the first lease or of the bond accompanying it, but both were retained by the lessee; and, on these facts, the Supreme Court said that "every circumstance, except the fact of receiving the second lease, altogether rebutted the idea of an intention to surrender," and held that none had taken place.1