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Surrender.

THURSBY and Others

v.

PLANT.

the action of covenant is annexed to the reversion; and the assignee shall maintain such action on the privity of estate, and not upon the privity of contract.

pressly reserved by the Statute of Frauds. So that surrenders in law, or implied surrenders, remain as they did at common law, if the lease which is to work or occasion such implied surrender be in writing pursuant to that statute. Therefore, if lessee for life accepts a lease in writing, though it be only for years, from the lessor, it will be a surrender in law. So if lessee for years accepts a new lease from his lessor, it will be a surrender in law; for the lessee in these cases affirms the lessor able to make a

(y) See Accord. 11 Q. B. 703. Doe v. Courtenay. Ibid. 713. Doe v. Poole. 11 Q. B. 720, per Erle, J. The principle is that the acceptance of the new lease is an implied surrender of the existing lease, but with an implied condition that such an estate pass by the new lease, as appears thereby to have been contemplated by the parties at the time. 11 Q. B. 703. 11 Q. B. 720. It should seem, therefore, although an acceptance of a lease by parol for three years or less, or at will, may operate as a surrender of an existing lease, yet that an acceptance of a lease by parol for more than three years cannot have such operation, because it does not pass an interest

new lease, which he could not do without a surrender. But if the new lease be not a good one, if it does not pass an interest according to the contract and intention of the parties, the acceptance of it is no implied surrender of the former lease. 4 Burr. 1980. Wilson v. Sewell. Ibid. 2210. Davison v. Stanley (y).'" Al. 59. Bernard v. Bonner. Plowd. 106 a, 107 b. Fulmerston v. Steward.

2 Rol. Abr. 495 (F.), pl. 9. Dy. 140 b. 2 Rol. Abr. 496, pl. 10. See 6 East, 86. Roe dem. Berkeley v. Abp.of York (2).

according to the contract and intention of the parties, whether it be considered as having the effect of a lease at will, or from year to year.

(2) [In Roe v. The Archbishop of York, the occupation by virtue of the new lease took place under a mistaken idea that it was a good and valid lease; and when that was discovered to be void, the court very properly held that it should not operate as a surrender of the former lease. 3 B. & C. 481, by Lord Tenterden. (See n. (u), supra, 293.) But where tenant from year to year entered into an agreement, during a current year, for a lease to be granted to him and A. B.; and from that time

Surrender.

But after deliberation, the court resolved that the action was well brought in London, because they held that the statute transferred the privity of contract; for an action of covenant is

And it is equally a surrender, though the new lease is to begin at a future day; 5 Rep. 11 b. Ive's case. S. C. Cro. Eliz. 522. 2 Rol. Abr. 496, pl. 12. Moor, 636, 637. Mellow v. May; or upon condition to be void upon such an act which is afterwards done. As where a man makes a lease for forty years, and the lessee afterwards takes a new lease for twenty years, upon condition that if he does not such an

A. B. entered and occupied jointly with him; it was held that the former tenancy was determined, although the lease contracted for was never granted; because the entry and holding by A. B. and the tenant under the agreement created a new tenancy at will, which terminated the old holding. 3 B. & C. 478. Hamerton v. Stead. 5 D. & R. 206. S. C. Where, however, a tenant from year to year enters into an agreement to purchase the estate, the agreement does not create a new demise at will, so as to work a surrender of the tenancy from year to year by operation of law; unless, perhaps, the terms of the agreement are such, that the tenant is, from the date of it, to become absolutely a debtor for the purchase money, paying in

THURSBY and Others

ย.

PLANT.

act, the lease shall be void, and after he breaks the condition so that the second lease is void, yet the surrender is good; for it was executed absolutely at the time by taking the new lease for twenty years, and it is not defeated although the condition makes the second lease void ab initio for several purposes. Plowd. 107 b. Fulmerston v. Steward. A surrender in law is sometimes of greater force than a surrender

terest upon it, and to cease to pay rent as tenant from year to year. 1 M. & W. 695. Doe v. Stanion. 1 Tyrw. & Gr. 1065. S. C. See also 3 B. & C 483, per Littledale, J. Where a landlord, who has leased for a term of years, agrees with his tenant to lay out money in improving the demised premises, the tenant undertaking to pay an increased rent during the remainder of the term, this contract does not create a new demise at an increased rent, so as to amount to a surrender of the old lease by operation of law. 3 B. & Ad. 899, 905. Donellan v. Read. 2 M. & W. 333. Lambert v. Norris. See also 1 Car. & K. 307. Geekie v. Monk. 5 Q. B. 841. Geekie. 7 Exch. 319. v. Vitty.]

Doe v. Crowley

THURSBY

and Others v.

PLANT.

Surrender in Law.

not like an action of debt for rent reserved; for if the lessee assign over his term, and the lessor accept of the assignee as his

in deed. As where a lease for years is made to begin at Michaelmas next, this future interest cannot be expressly surrendered, because there is no reversion wherein it may drown, but by a surrender in law it may be merged; as if the lessee before Michaelmas takes a new lease for years either to begin presently

(a) So, although the term be created by parol, as a term for three years or less, or the tenancy be from year to year, still a surrender must be in writing, or by operation of law. 2 Camp. 103. Mollett v. Brayne. 5 Taunt. 519. Doe v. Ridout. 2 Stark. 379. Thomson v. Wilson. The same law holds as to an assignment. 1 Camp. 318. Botting v. Martin. An agreement by landlord and tenant that the term shall be put an end to, acted upon by the tenant's quitting the premises, and the landlord, by some unequivocal act, taking possession, amounts to a surrender by operation of law. 8 B. & C. 324. Grimman v. Legge. 6 M. & Gr. 672. Dodd v. Acklom. 12 C. B. N. S. 334. Phené v. Popplewell. 8 C. B. N. S. 512, per Willes, J. But see 9 C. B. 634. Tanner v. Hartley. 7 C. B. 266. Morrison v. Chadwick. Again, where the

or at Michaelmas, it is a surrender in law of the former lease. Co. Litt. 338 a. But it is held, that if lessee for years accept a new lease by indenture of part of the land before leased to him, it is a surrender only for that part, and not for the whole. 2 Rol. Abr. 498 (M.), pl. 1 (a). A right cannot be surrendered.

landlord, with the assent of the lessee from year to year, accepted an under-lessee as his tenant, and distrained on such under-lessee for rent, it was held, that there was a sufficient surrender by operation of law to satisfy the 29 Car. 2, c. 3, s. 3. 2 B. & A. 119. Thomas v. Cook. 2 Stark. 235. Stone v.

Whiting.

[See also 1 Cr. M. & R. 31. Reeve v. Bird. 4 Tyrw. 612. S. C. 2 Cr. M. & R. 581. Bees v. Williams. 1 Tyrw. & Gr. 23. S. C. 2 M. & W. 882, 892. Walker v. Richardson. Accord. See also 9 Mees. & W. 773. Turner v. Hardey. The doctrine of Thomas v. Cook, viz., that the granting of a new lease to another person with the consent of the tenant, who has previously let the new lessee into possession, is a sufficient surrender by operation of law, was much questioned by the Court of Exchequer in 13 M. & W. 285. Lyon v. Reed; and

Surrender.

tenant, now the lessor cannot have an action of debt for the rent against the first lessee, by reason of his own acceptance,

Co. Litt. 338 a. Where an estate is limited to A. for life, remainder

13

by Lord St. Leonards in Creagh v. Blood. 3 Jones & Lat. 133 (stated in the note to Doe v. Oliver, in 2 Smith's L. C. 762, 6th edition), but approved of in subsequent cases in the Court of Queen's Bench and Exchequer, viz., 10 Q. B. 944. Nickells v. Atherstone. 1 H. & N. 744. Davidson v. Gent. (See also, Accord. 6 Ir. L. R. 131, cited in Smith's L. C. 760, where the original lease was freehold. See further, 9 Hare, 944. McDonnell v. Pope.) But the doctrine of Thomas v. Cook does not extend to incorporeal hereditaments. M. & W. 310. Lyon v. Reed. The delivery up of his lease by one who has a term of years reversion, with an assent on his part to the making of a new lease (by the owner of the reversion expectant on his term), to a third person, and the making of that lease accordingly, does not work a surrender by operation of law. 13 M. & W. 310. But where tenant from year to year gave a parol notice to quit at the end of the current year, less than six months before such end, and the landlord assented and accepted such notice, it was held that the tenancy was not thereby determined, there not

in a

THURSBY and Others

V.

PLANT.

to B. for life, remainder to C. the eldest son of A, in fee; and A.,

being a sufficient notice to quit, or a surrender in writing, or by operation of law. And Thomas v. Cook was recognised by the court, but distinguished, on the ground that in that case the surrender was worked, not by reason of the agreement of the parties alone, but by reason of that agreement, coupled with the change of possession. 4 B. & C. 922. Johnstone v. Hudlestone. 7 D. & R. 411. 141.

638.

S. C. See also M'Cl. & Y.
Doe v. Johnston. 7 Q. B.
Bessell v. Landsberg.

In Johnstone v. Hudlestone some stress was laid by the court on the circumstance that the notice to quit was not in writing; and it seems to have been thought, that, if it had been so, it might have been construed as a surrender

by note in writing, so as to satisfy the statute. (See 6 C. & P. 212. Aldenburgh v. Peaple.) But it has since been decided otherwise, on the ground that there cannot be a surrender to take place in futuro. 1 M. & W. 50. Weddall v. Capes. 3 M. & W. 328. Doe v. Milward.

It must be observed, that in order to operate as an implied surrender on the principle of

THURSBY

and Others

V.

PLANT.

Implied Surrender.

which hath extinguished the privity of contract (b); but yet, in such case, the lessor, after his own acceptance, shall maintain an action of covenant, as is adjudged in Bacheloure and

in the lifetime of B., in consideration of an annuity of 147. to be

Thomas v. Cook, it is essential that all the three parties should assent to the arrangement by which the new tenant is substituted for the old one. 8 Taunt. 220. Matthews v. Sewell. 1 Cr. & M. 188. Graham v. Whichelo. 3 Tyrw. 201. S. C. 1 B. & Ad. 219. Rex v. Stow Bardolph]. It has been held, that where a landlord accepts the possession of the premises from his tenant, although not upon a notice to quit, and although there be no surrender in writing, he cannot maintain an action for use and occupation for the time subsequent to such acceptance. 5 Taunt. 518. Whitehead v. Clifford. [3 Bing. 462. Walls v. Atcheson. 11 Moore, 379. S. C. Nor can he recover the rent pro ratâ for so long a time as the tenant occupied since the last rent day. 8 B. & C. 324. Grimman v. Legge. 2 Mann. & R. 438. S. C. 5 B. & C. 332. Hall v. Burgess. 8 D. & R. 67. S. C. So in an action of debt for rent, it is a good plea that the landlord agreed to excuse payment of rent in consideration of the defendant giving up possession, and that possession was actually given up and accepted

paid by the said C. to him out of the premises, and for other con

accordingly; which plea does not set up a surrender as the defence, but merely an executed contract. 8 A. & E. 118. Gore v. Wright. 3 N. & P. 243. 6 B. & C. 703. 10 C. B. 6. 8 C. B. N. S. 496. Furnivall v. Grove.] So where the tenant of several houses underlet each of them to different persons, and the landlord gave notice to quit to one of the under-tenants, who quitted accordingly, after which that house remained unoccupied some time, and then the tenant underlet it again, Lord Ellenborough, C. J., held that the landlord could not maintain an action for use and occupation against the tenant for the rent during the time the house remained unoccupied, considering the circumstances as proof of an eviction. 1 Stark. 94. Burn v. Phelps. [See also 5 B. & C. 332. 3 Bing. 462.]

S. C. See also Peter v. Kendal. Smith v. Lovell.

(b) Walker's case supports this reason given by the court; but although the privity of contract be extinguished quoad the action of debt, it seems not to be wholly and for all purposes extinguished; for it is immediately added, that

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