81. Post, Sec. 465.

82. Farmer v. Rogers, 2 Wils. 26; Shepard v. Spaulding, 4 of the premises by the tenant to the landlord has been regarded as sufficient as a surrender,83 as has what was in terms an "agreement" for the relinquishment of the leasehold, it being intended to take effect as a surrender.84 Apparently, in England, where a mortgage transfers the legal estate to the mortgagee, a mortgage of the leasehold by the tenant to his landlord would take effect as a surrender,85 but such a result could not follow in any jurisdiction where a mortgage does not transfer the legal title.86

- Surrender by operation of law. A surrender by "act and operation of law," which is expressly excepted from the Statute of Frauds, is a surrender which the law infers from certain acts by the parties as being inconsistent with the continued distinct existence of the two former estates. Occasionally the theory appears to be asserted that surrender by operation of law takes place because the acts of the parties show an intention or agreement that the leasehold estate shall be surrendered,87 but it is somewhat difficult to regard a surrender as taking place by operation of law when it results from the agreement or intention

Mete. (Mass.) 416; Greider's Appeal, 5 Pa. St. 422, 47 Am. Dec. 413.

83. Loyd v. Langford, 2 Mod. 174; Smith v. Mapleback, 1 Term R. 441; Shepard v. Spauld-ing, 45 Mass. (4 Mete.) 416.

84. Harris v. Hancock, 91 N. Y. 340; Allen v. Jaquish, 21 Wend. (N. Y.) 628.

85. See Cottee v. Richardson, 7 Exch. 143.

86. See Breese v. Bange, 2 E. D. Smith N. Y.) 474.

87. See e. g. Beall v. White, 94 U. S. 382, 24 L. Ed. 173; Brewer v. National Union Building Ass'n, 106 111. 221, 46 N. E. 752; Talbot v. Whipple, 14 Allen (Mass.) 177; Tobener v. Miller, 68 Mo. App. 569; Meeker v. Spalsbury, 66 N. J. Law 60, 48 Atl. 1026; Home Coupon Exchange Co. v. Goldfarb, (N. J. Eq.) 74 At. 143; O'neill v. Pearse, 88 N. J. L. 733. 96 Atl. 1102, affirming 87 N. J. L. 382, 94 Atl. 312; Bedford v. Ter-hune, 30 N. Y. 453, 86 Atl. 394; Hart v. Pratt, 19 Wash. 560, 53 Pac. 711.

And see cases cited this section, post note 93.

Of the parties, even though this is shown by acts rather than by words.88

A surrender by operation of law occurs when the tenant accepts from the reversioner a new lease, to begin immediately, or at any time during the existence of the previous lease; this result being based on the theory that, by such acceptance, the tenant is estopped to denv the validity of such new lease, which neverthe-less cannot be valid unless the first lease is terminated.89 The new lease must, it seems, be sufficient to pass an interest according to the intention and contract of the parties,90 but the fact that the new lease is oral is immaterial if an oral lease is sufficient to create the interest intended to be created.91 Since the surrender in such case is by operation of law, it might be considered as taking' place even contrary to the intention of the parties.92

88. So in Felker v. Richardson, 67 N. H. 509, 32 Atl. 830, it is said, per Carpenter, J., "A surrender by agreement, whether express or implied, is the act, not of the law, but of the parties. To constitute a surrender by operation of law, overt acts of both parties inconsistent with the continuance of the term are essential." But see Professor Aigler's note in 15 Mich. Law Rev. 659, and the article there referred to in 5 Irish Jurist, 117, also Editorial note 28 Harv. Law Rev. 313.

89. Lyon v. Reed, 13 Mees. & W. 285; Otis v. Mcmillan, 70 Ala. 46; Welcome v. Hess, 90 Cal. 507. 27 Pac. 369; Flagg v. Dow, 99 Mass. 18; Bowman v. Wright, 65 Neb. 661. 91 N. W. 580; Schief-felin v. Carpenter, 15 Wend (N. Y.) 400; Edwards v. Hale, 37 W. Va. 193, 16 S. E. 487.

Acceptance by the tenant from the landlord of an interest other than an estate for years, if inconsistent with the former tenancy, has likewise been regarded as effecting a surrender by operation of law, as when "a lessee for years accepts a grant of a rent, common, estovers, herbage, or the like, for life or years, out of the same lands." Bac. Abr., Leases (S.) 2, 1. See 2 Tiffany, Landlord & Ten. Sec. 190 b (2).

90. Doe d. Biddulph v. Poole, 11 Q. B. 713; Zick v. London United Tramways Ltd., (1908) 2 K. B. 126; Schiefflin v. Carpenter, 15 Wend. (N. Y.) 400; Coe v. Hobby, 72 N. Y. 141. 28 Am. Rep. 120.

91. Comyn's Dig. "Surrender," (Tl); Fenner v. Blake, (1900), 1 Q. B. 426: Evans v. Mckanna, 89 Iowa, 362, 48 Am. St. Rep. 390. 56 N. W. 527; Schiefflin v. Carpenter, -5 Wend. (N. Y.) 400; Coe v. Hobby, 72 N. Y. 141, 28 Am. Rep. 120.

92. See Lyon v. Reed, 13 Mees. & W. 285; Brown v. Cairns, 107

Occasionally, however, a different view has been taken, that the new lease merely raises a presumption of surrender, capable of rebuttal by evidence that the intention was otherwise.93

The question has occasionally arisen whether an assignee of the lessee, by reason of his recognition by the landlord as tenant of the premises, can be regarded as holding under a new lease, so as to effect a surrender of the estate created by the original lease, and consequently to put an end to the liability of the original lessee on account of rent. The cases are generally to the effect that the mere acceptance of rent from the assignee does not involve a new lease, so as to effect a surrender,94 and it is difficult to see how any other view could be adopted. The assignee is bound to pay the rent, anu the acceptance of payment from him involves merely the recognition of a liability already existing.95

A second mode of surrender by operation of law, and one which frequently occurs, results from the reiowa, 727, 77 N. W. 478; Enyeart v. Davis, 17 Neb. 228, 22 N. W. 449.

93. Flagg v. Dow, 99 Mass. 18 (semble); Thomas v. Zumbalen. 43 Mo. 471; Brown v. Linn Woolen Co., 114 Me. 266, 95 Atl. 1037; Smith v. Kerr, 108 N. Y. 31, 2 Am. St. Rep. 362, 15 N. E. 70. See Editorial note 22 Harv. Law Rev. 55.