This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
That character of conveyance known as "surrender" was fully recognized at common law and might accordingly have been properly discussed in the previous section dealing with conveyances at common law. In view however of the practical importance of the law of surrender it has appeared to be expedient to devote a separate section thereto.
"Surrender" has been defined as a yielding up of an estate for life or years to him that hath an immediate estate in reversion or remainder, wherein the estate for life or years may drown by mutual agreement between them."72 Unfortunately, this technical meaning of the word, as referring to the transfer of an estate, has been somewhat obscured by its frequent use in an untechnical sense, as referring to the relinquishment or yielding up, not of an estate, but of the physical possession of the premises, as when the lessee covenants to "surrender" the premises in good condition at the end of the term, and the courts frequently fail clearly to distinguish between such a surrender of possession and a surrender, properly so called, of an estate for life or years. Quite frequently, in using the term even in its technical sense, a surrender "of the lease" is spoken of, but this must be understood as merely an elliptical expression signifying a surrender of the estate created by the lease.
Immediately precede the latter estate as regards the right of possession, with no vested estate intervening.76 Consequently if A leases to B for years and B leases to C, the subtenant C cannot surrender to A, and if property is devised to A for life, with remainder to B for life, with remainder to C in fee, A cannot, though B can, surrender to C.
70. See United States v. California & Oregon Land Co., 148 U. S. 31, 37 L. Ed. 354; Derrick v. Brown, 66 Ala. 162 Reynolds v. Shaver, 59 Ark. 299; Morrison v. Wilson, 30 Cal. 344; Wightman v. Spofford.. 56 Iowa, 145; Taylor v. Harrison, 47 Tex. 454, 26 Am. Rep. 304; Nichols v. Schmitton, 107 Tex. 54, 174 S. W. 283; Cook v. Smith, 107 Tex. 119, 174 S. W. 1094; Baldwin v. Drew, - (Tex. Civ.) --, 180 S. W. 614;
Cummings v. Dearborn, 56 Vt. 441.
71. See post. Sec. 567(m).
That the word "quitclaim" is used does not in itself show that the conveyance is legally a quitclaim deed. Hitt v. Caney Fork Gulf Coal Co., 124 Tenn. 93, 139 S. W. 693; Garrett v. Christopher, 74 Tex. 453, 15 Am. St. Rep. 850, 12 S. W. 67.
72. Co. Litt. 337b. See 2 Platt, Leases, 499; Comyn. Landl. & Ten. 336.
The courts occasionally refer to the "rescission' or "cancellation'; of the lease by the parties to the tenancy, without apparently recognizing that a termination of the tenancy as a result of an agreement of the parties, made subsequently to its creation, necessarily involves the divesting of a leasehold estate out of the lessee, or his assignee, and a revesting thereof in the landlord.73 After an estate, whether in fee simple or for life or for years, has been conveyed, the grantor and grantee in the conveyance cannot effect a reconveyance of the estate to the former by undertaking to "rescind" or "cancel" the original conveyance.74 The parties to a contract can rescind or cancel the contract, that is, they can make a new contract by which each agrees to forego his rights under the previous contract, but the mere making of a new contract can never transfer property rights even to a person in whom they were formerly vested. Any rescission or cancellation, so called, of a lease, by the parties thereto, must consequently, in order to terminate the tenancy, constitute in legal effect a surrender, and must satisfy the requirements existing with reference to such a mode of conveyance.74 a
In order that a surrender may be effected, the estate surrendered must be no greater in quantum that the estate of the surrenderee, since otherwise it cannot merge therein.75 And furthermore it musl
73. See Silva v. Bair, 141 Cal. 599, 75 Pac. 162; Alschuler v. Schiff, 164 111. 298, 45 N. E. 424; Evans v. Mckanna, 89 Iowa 362, 8 Am. St. Rep. 390, 56 N. W. 527; Andre v. Graebner, 126 Mich. 116, 85 N. W. 464; Geddis v. Folliett, 10 S. D. 610,
94 N. W. 431; Snyder v. Harding, 34 Wash. 286, 75 Pac. 812.
74. Post, Sec. 465.
74a. Post, this section, note 80.
75. 3 Preston, Conveyancing, 166 et seq.
- Express surrender. Surrender may be either
"express" or "by operation of law." At common law an express surrender, in the ordinary case, could be made orally,77 but this was changed by the provision of the English Statute of Frauds that a surrender, if not by act and operation of law, must be in writing, signed by the surrenderor or his agent, and there are in most of the states statutes to a similar effect.78
Before the Statute of Frauds the cancellation of an instrument of lease was regarded as equivalent to an oral surrender, and valid as such,79 but this is no longer the case.80 As elsewhere stated,81 the cancellation of an instrument of conveyance, after its delivery, does not have the effect of revesting in the maker the estate conveyed thereby, and this is as true of a conveyance by way of lease for a terra of years as of a conveyance in fee simple.
While the words "surrender, grant and yield up" are ordinarily used in a formal instrument intended to take effect as a surrender, no particular words are necessary, it being sufficient that an intention to transfer the leasehold interest to the reversioner clearly appears.82 Accordingly, an instrument in form a lease
76. Except when an estate for years is interposed between two freehold estates. Id. 107, and ante, Sec. 34.
77. Co. Litt. 338a; Sheppard's Touchstone 300.
78. See 2 Tiffany, Landlord & Ten., Sec. 189a.
79. Magennis v. Mac Cullogh,
Gilb. Eq. Cas. 235.
80. Roe d. Berkley v. Archbishop of York, 6 East 86; Doe d. Courtail v. Thomas, 9 Barn. & C. 288; Rowan v. Lytle, 11 Wend. (N. Y.) 616.