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.
§ 41. As the first section of the Statute of Frauds prescribes certain formalities in the creation of interests in land, the third section is directed to the assignment, grant, or surrender of those interests after their creation. The application of the statute to such transfers, with the formalities it requires, will be the subject of the present chapter.1
§ 42. The provision of the third section, with regard to the assignment, grant, or surrender of existing terms, is that, to be valid, it shall be either by deed or by note in writing. In view of this alternative provision, it has generally been held that, unless a seal is essential to the creation of the term, it need not appear upon the assignment, but that a note in writing is sufficient;2 and this is also true, where the estate to be surrendered might have been created without deed, though in point of fact so created.3
1 As was pointed out by the court, in a case in North Carolina, an assignment of a term requiring a writing to create it could not, in reason, be verbally made, even though the statute contained no provision with regard to the making of such assignment; for if, as is clear, the statute against parol leases applies to those which are carved out of a term, as well as out of the inheritance, it cannot be that a long termor can assign his whole interest verbally, when he could not underlet part of it without writing. Briles v. Pace, 13 Ired. Law, 279.
2 Holliday v. Marshall, 7 Johns. (N. Y.) 211; Esty v. Baker, 48 Me. 495; Boyce v. Bakewell, 37 Mo. 492. See Dixon v. Buell, 21 111. 203 See also Sanders v. Partridge, 108 Mass. 556, in which the whole subject is fully considered, and which, as to the point in question, appears to be in conflict with the earlier cases of Wood p. Partridge, 11 Mass. 488; Brewer v. Dyer, 7 Cush. 337; Bridgham v. Tileston, 5 Allen, 371.
3 Roberts on Frauds, 248, 249; Farmer v. Rogers, 2 Wils. 26; Gwyn v. Wellborn, 1 Dev. & B. (N. C.) Law, 313; Allen v. Jaquish, 21 Wend. (N. Y.) 628; Peters v. Barnes, 16 Ind. 219.
§ 43. The statute has prescribed no form of words for the surrender of an estate, but it may still be accomplished by any language fairly importing an intention to yield up the estate, provided it be put in writing signed by the party or his agent.1 Nor is it necessary that there should be any formal redelivery or cancelling of the deed or other instrument which created the estate to be surrendered.2 It has been contended that a recital in a second lease, that it was in consideration of the surrender of a prior one, was a sufficient note in writing of such surrender, to satisfy the requirements of the statute; but the judges of the Queen's Bench, when the question arose before them, were clearly of opinion that the fact of a previous surrender must be specifically found; which fact the recital by no means imported, for the recital would be sufficiently accurate if the surrender were merely by operation of law, arising from the reception of the second lease.3 And in a decision of the Court of Exchequer to the same effect, Parke, B., remarked upon the custom, at the renewing of a lease, of reciting that it is in consideration of the surrender of the old one; from which, he said, it was clear that such a recital could not import certainly that the interest of a lessee in a prior lease had been in fact surrendered.4
1 Weddall v. Capes, 1 Mees. & W. 50; Greider's Appeal, 5 Pa. St. 422; Strong v. Crosby, 21 Conn. 398; Gwyn v. Wellborn, 1 Dev. & B. (N. C.) Law, 313; Shepard v. Spaulding, 4 Met. (Mass.) 416; where the word "reconvey" was held a good word of surrender. After a written lease for ten years had been executed, it was verbally agreed between the parties, that if either became dissatisfied with the other before the ten years expired, the lease should be at an end. It was held that such an agreement, acted upon by one of the parties, though it might not technically amount to a surrender, was void, because the direct effect of it was to change a lease for years into a mere estate at will. May-berry v. Johnson, 3 Green (N. J.) Law, 116; Brady v. Peiper, 1 Hilt. (N. Y.) 61.
2 Greider's Appeal, 5 Pa. St. 422. See, in regard to the cancellation of instruments of conveyance, post, §§ 59, 60.
3 Roe v. Abp. of York, 6 East, 86.
4 Lyon v. Reed, 13 Mees. & W. 285. A recital in a second lease that it was granted "for the consideration of the present lease, and which is
§ 44. The cancellation or destruction of the indenture has no operation as a surrender of a lease of lands. Such was the opinion given extra-judicially by Lord Chief Baron Gilbert, in the case of Magennis v. MacCollogh; "because," he says, "the intent of the Statute of Frauds was to take away the manner they formerly had of transferring interests in lands, by signs, symbols, and words only, and, therefore, as a livery and seisin of a parol feoffment was a sign of passing the freehold, before the statute, so I take it that the cancellation of a lease was a sign of a surrender, before the statute, but is now taken away unless there be a writing under the hand of the party."1 The same rule was afterwards affirmed by all the judges of the Common Pleas, and is now, as a general principle, adopted in England and the United States.2 Where, however, a lessee voluntarily delivered up and destroyed his lease, and afterwards claimed under it, it was held in New York that he ought not to be allowed to avail himself of any obscurity or uncertainty in respect to its contents, but that every difficulty and presumption ought to be turned against him.3 We shall have occasion, before passing from the subject of conveyances as affected by the statute, to consider rather more at large the effect of altering, destroying, or redelivering title-deeds, and until then reserve the examination of certain further modifications of the rule.4 hereby surrendered accordingly," was held to constitute a good surrender, by note in writing, in Doe v. Forwood, 3 Q. B. 627. But this case was explained in Doe v. Courtenay, 11 Q. B. 702, where the court, by Coleridge, J., said that when a surrender was expressed to be founded upon a new grant, the validity of the surrender would be conditional upon the validity of the new grant.