Surrender in law.
(b) Stat. 33 & 34 Vict. c. 93, s. 7.
(c) Iggulden v. May, 9 Ves. 325 : 7 East, 237; Hare v.Burges, 4 Kay & J. 45.
(d) Ice's case, 5 Rep. 11 b; Roe d. Earl of Berkeley v. Archbishop of York, 6 East, 86; Doe d. Earl of Egremont v. Courte-nay, 11 Q. B. 702; Doe d. Bid-dulph v. Poole, 11 Q. B. 713.
(e) See Lyon v. Reed, 13 Mee. & Wels. 285, 306; Creagh v. Blood, 3 Jones & Lat. 133, 160; Nickells v. Atherstone, 10 Q. B. 944; M'Bonnell v. Pope, 9 Hare, 705; Davison v. Gent, 1 H. & N. 744.
(f) Rawe v. Cliichester, Ambl. 715; Gidding v. (ridding, 3 Russ. 241; Tanner v. Ehvorthy, 4 Beav. 487; Clegg v. Fishn-ick, 1 Mac. & Gord. 294.
(g) White v. White, 5 Ves. 554; 9 Ves. 560; Allan v. Backhouse, 2 Ves. & Bea. 65; Jacob, 631; Greenwood v. Evans, 4 Beav. 44; Jones v. Jones, 5 Hare, 440;
Hadleston v. Mlielpdale, 9 Hare, 775; Ainslie v. Harcourt, 28 Beav. 313; Bradford v. Bro?vn-john, L. R. 3 Ch. 711.
(h) Stats. 11 Geo. IV. & 1 Will. IV. c. 65, ss. 12, 14 - 18, 20, 21; 16 & 17 Vict. c. 70, ss. 113 - 115, 133 - 135.
(i) Stat. 4 Geo. II. c. 28, s. 6; ante, p. 239.
(k) Stat. 23 & 24 Vict. c. 145, s. 8.
( l ) Sect. 9. These provisions apply only to instruments executed after the passing of the act (sect. 34). The act passed 28th August, 1860.
We now come to consider those long terms of years of which frequent use is made in conveyancing, generally for the purpose of securing the payment of money. For this purpose, it is obviously desirable that the person who is to receive the money should have as much power as possible of realizing his security, whether by receipt of the rents or by selling or pledging the land; at the same time it is also desirable that the Ownership of the land, subject to the payment of the money, should remain as much as possible in the same state as before, and that when the money is paid, the persons to whom it was due should no longer have anything to do with the property. These desirable objects are accomplished by conveyancers by means of the creation of a long-term of years, say 1,000, which is vested (when the parties to be paid are numerous, or other circumstances make such a course desirable), in trustees, upon trust out of the rents and profits of the premises, or by sale or mortgage thereof for the whole or any part of the term, to raise and pay the money required, as it may become due, and upon trust to permit the owners of the land to receive the residue of the rents and profits. By this means the parties to be paid have ample security for the payment of their money. Not only have their trustees the right to receive ou their behalf (if they think fit) the whole accruing income of the property, but they have also power at once to dispose of it for 1,000 years to come, a power which is evidently almost as effectual as if they were enabled to sell the fee simple. Until the time of payment comes, the owner of the land is entitled, on the other hand, to receive the rents and profits, by virtue of the trust under which the trustees may be compelled to permit him so to do. So, if part of the rents should be required, the residue must be paid over to the owner; but if non-payment by the owner should render a sale necessary, the trustees will be able to assign the property, or any part of it, to any purchaser for 1,000 years without any rent. But until these measures may be enforced, the ownership of the land, subject to the payment of the money, remains in the same state as before. The trustees, to whom the term has been granted, have only a chattel interest; the legal seisin of the freehold remains with the owner, and may be conveyed by him, or devised by his will, or will descend to his heir, in the same manner as if no term existed, the term all the while still hanging over the whole, ready to deprive the owners of all substantial enjoyment, if the money should not be paid.
Long terms of years.
The parties have ample security.
(m) Stat. 23 & 24 Vict. C. 124, ss. 35 - 38.
(n) Sect. 39.
If, however, the money should be paid, or should not ultimately be required, different methods may be employed of depriving the trustees of all power over the property. The first method, and that most usually adopted in modern times, is by inserting in the deed, by which the term is created, a proviso that the term shall cease, not only at its expiration by lapse of time, but also in the event of the purposes for which it is created being fully performed and satisfied, or becoming unnecessary, or incapable of taking effect (o). This proviso for cesser, as it is called, makes the term endure so long only as the purposes of the trust require; and, when these are satisfied, the term expires without any act to be done by the trustees: their title at once ceases, and they cannot, if they would, any longer intermeddle with the property.
The ownership of the land, subject to the payment, remains as before.
Proviso for cesser.
(o) See Sugd. Vend. & Pur 508, 13th ed.
But if a proviso for cesser of the term should not be inserted in the deed by which it is created, there is still a method of getting rid of the term, without disturbing the ownership of the lands which the term overrides. The lands in such cases, it should be observed, may not, and seldom do, belong to one owner for an estate in fee simple. The terms of which we are now speaking are most frequently created by marriage settlements, and are the means almost invariably used for securing the portions of the younger children; whilst the lands are settled on the eldest son in tail. But, on the son's coming of age, or on his marriage, the lands are, for the most part, as we have before seen (p), resettled on him for life only, with an estate tail in remainder to his unborn eldest son. The owner of the lands is therefore probably only a tenant for life, or perhaps a tenant in tail. But, whether the estate be a fee simple, or an estate tail, or for life only, each of these estates is, as we have seen, an estate of freehold (q), and, as such, is larger, in contemplation of law, than any term of years, however long. The consequence of this legal doctrine is, that if any of these estates should happen to be vested in any person, who at the same time is possessed of a term of years in the same land, and no other estate should intervene, the estate of freehold will infallibly swallow up the term, and yet be not a bit the larger. The term will, as it is said, be merged in the estate of freehold (r). Thus, let A. and B. be tenants for a term of 1,000 years, and subject to that term, let C. be tenant for his life; if now A. and B. should assign their term to C. (which assignment under such circumstances is called a surrender), C. will still be merely tenant for life as before. The term will be gone for ever; yet C. will have no right to make any disposition to endure beyond his own life. He had the legal seisin of the lands before, though A. and B. had the possession by virtue of their term; now, he will have both legal seisin and actual possession during his life, and A. and B. will have completely given up all their interest in the premises. Accordingly, if A. and B. should be trustees for the purposes we have mentioned, a surrender by them of their term to the legal owner of the land, will bring back the ownership to the same state as before. The act to amend the law of real property (s) now provides that a surrender in writing of an interest in any tenements or hereditaments, not being a copyhold interest, and not being an interest which might by law have been created without writing, shall be void at law unless made by deed.