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.
§ 52. Lastly, it is to be observed that the estate, whatever it is, the acceptance of which is to work a surrender of a previous tenancy, must take effect before the previous tenancy expires.2 Where an agreement in writing was made between landlord and tenant, signed by the landlord, for a new lease to be granted at any time after the completion of repairs to be made by the tenant with all convenient speed, but blanks were left for the day of the commencement, and, the repairs being completed, the landlord tendered a lease to commence from that time, but the tenant insisted that the new lease was not to commence till the expiration of the old, the Master of the Rolls said he could not admit parol evidence to prove that the defendant was to surrender any part of his first lease, and ordered performance by accepting a lease to run from the expiration of the first one.8
§ 53. A surrender by act and operation of law will also an unsuccessful attempt to create a term by parol for more than the statutory period. The lease which is to work the surrender must, as we have seen, be valid to pass the interest which it purports to convey. See also Switzer v. Gardner, 41 Mich. 164.
1 Van Rensselaer v. Penniman, 6 Wend. 569. See Abell v. Williams, 3 Daly, 17; Flagg v. Dow, 99 Mass. 18.
2 Roberts on Frauds, 260; Doe v. Walker, 5 Barn. & C. 111.
3 Pym v. Blackburn, 3 Ves. Jr. 34; Sir Richard Pepper Arden, M. R.
1 Stone v. Whiting, 2 Stark. 235; Phipps v. Sculthorpe, 1 Barn. & Aid. 50; Thomas v. Cook, 2 Barn. & Ald. 119; Sparrow v. Hawkes, 2 Esp. 504; Randall v. Rich, 11 Mass. 494; Hesseltine v. Seavey, 16 Me. 212; Smith v. Niver, 2 Barb. (N. Y.) 180; Fobes v. Lewis, (N. Y.) Sup. Ct. 1876, 3 N. Y. Weekly Digest, 65; Koenig v. Miller Brewery Co., 38 Mo. App. 182.
2 Lyon v. Reed, 13 Mees. & W. 285.
§ 54. In like manner, a surrender by operation of law takes place where two tenants of different premises verbally agree to exchange, which agreement is assented to by the stewards of both landlords and executed by taking possession.2 Where the new tenant was accepted for, and took possession of, only part of the premises previously leased, but advertised the whole to be let or sold, and had taken rent from the old tenant up to the middle of the quarter, it was held to be a surrender in law of the whole premises.3 But where the lease under which the new tenant has entered and occupied turns out to be invalid, the mere entry and occupation will not have the effect to surrender the first tenancy, contrary to the intentions of all parties.4
§ 55. That there should be an actual change of possession is indispensable to such a surrender in law as we are now considering.5 Thus, a verbal license to a tenant from year to year, for instance, to quit in the middle of a quarter, and the tenant quitting accordingly, was held to be insufficient in Mollett v. Brayne,1 a case which has often been quoted against those which hold surrenders by operation of law to arise from a change of tenancy, but which is perfectly reconcilable with them, on the ground that in this case no possession was taken as in the other cases, and that therefore the surrender did rest entirely in agreement, and was against the spirit of the statute.2 Where, however, the tenant assigns his term by writing, and the landlord assents, though verbally, no actual entry upon the land by the assignee appears to be necessary.8 It is not, it seems, necessary that the possession should be taken by a new tenant; the resumption of it by the landlord himself is held to be sufficient.4 And the Court of Common Pleas has held, that by the delivery back of the key by the tenant animo sursum reddendi and the acceptance of it by the landlord, there was such a change of possession as worked a surrender of the term.5 In the case of Phone v. Popplewell, it was held by the same court to be a surrender, where the tenant went away, leaving the key at the landlord's counting-house, and the latter, though he at first refused to accept it, afterwards put up a notice that the premises were to let, used the key to show them to applicants, and painted out the tenant's name from the front of the building. Keating, J., in his opinion, says: "Any agreement between landlord and tenant which results in a change of the possession whether the former acts upon the agreement by reletting, or by taking possession himself, or by some unequivocal acts showing his assent thereto - will amount to a surrender by act and operation of law."1 Though in all such cases the previous tenant is a necessary party to the surrender, yet it has been held in Pennsylvania, and, as it seems, very reasonably, that when a tenant abandons the premises and absconds, it amounts to a surrender as against him, though he in words deny that he has surrendered; and the landlord may enter.2 § 56. It is not enough that there be an actual entry by the new tenant, but it must be with the landlord's assent and acceptance of him as his tenant. Thus, where a tenant sold out the remainder of his term to one who had agreed to purchase the reversion from the landlord, and the purchaser, without the landlord's assent, put in a new tenant who occupied two years, and afterwards the agreement for the purchase of the reversion was rescinded, it was held that the original tenant was liable to the original landlord for the whole rent from the time he quitted the premises to the end of the term, the landlord not having assented to the change of tenancy, and there having been no surrender in writing. The court said it did not appear that the second tenant was ever liable to the plaintiff for rent; and Parke, B., distinguished the case from Phipps v. Sculthorpe,3 because there the landlord assented, though verbally, to hold the new comer as tenant.4 Of course the original tenant, as well as his landlord, must be a consenting party to the substitution of the new tenant; and whether in either case the necessary assent has been given, is for the jury to determine upon all the circumstances of the case. Where a lessor, pending the term, made another lease to a third party, and, it becoming a question whether the original lessee had so assented to the transaction as to determine his interest by operation of law, his lease was produced from the lessor's custody with the seals torn off, and it was proved to be the custom to send in old leases to the lessor's office before a renewal was made, it was held that there was evidence, particularly that of the custom, from which the jury might infer that the original lessee had assented to the making of the second lease, so that his tenancy had been regularly determined.1 So, where the rent was regularly paid by a third person, who occupied for two years after the original tenant disappeared, the court refused to set aside a verdict finding that the landlord had accepted the former as his tenant.2 Perhaps, however, the mere fact of receiving a payment of rent from a new occupant should not be held to discharge the original tenant;3 but where rent is received from the new tenant as an original and not a sub-tenant, the landlord, it is held, is estopped to deny a legal surrender of the first lease.4