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manner of transferring interests in lands by signs, symbols, CHAP. II, and words only; and therefore as a livery and seisin on à parol feoffment, was a sign of passing the freehold before the statute, but is now taken away by the statute ; so the cancelling of a lease was a sign of surrender before the statute, but is now taken away unless there is a writing under the hand of the party. (a) And it
And it appears that the rule is the same whether the deed relates to things lying in livery or to those which lie in grant. (b) The deed is evidence of title, and if it is lost secondary evidence may be produced to show the grant.(c) Moreover, alterations in a deed do not prevent it from being received in evidence.(d) Where premises were demised to B, which he again demised to C, and subsequently sold his interest to D, upon which D obtained a new lease from A, the first lease having been cancelled, it was held that B's interest had not been surrendered. (e) The fact that the lessor has the lease in his possession in a cancelled state does not prove a surrender, but he must show a surrender by deed or note in writing.
Nor is it primâ facie evidence that there was a surren- Nor evidence der by deed or note in writing: (f) But where the lease Unless other
evidence. was produced from the lessee's custody with the seals torn off, and it was proved to be the custom to send in old leases to the lessor's office before a renewal was made,
(a) Magennis V. Mac Cul- (c) Bolton v. Bp. of Carlisle, lough, Gib. Eq. Rep. 236, per 2 H, BI, 263, Gilbert, C. B.; Roe v. Abp. of (d) Stewart v. Aston, 8 Ir. C. York, 6 East, 86.
L. R. 35. (6) Bolton v. Bp. of Carlisle, (e) Wootley v. Gregory, 2 Y. 2 H. Bl. 263, 264 ; Walker v. & J. 536. Richardson, 2 M. & W. 892 ; 6 (f) Doe v. Thomas, 9 B. & C. L. J. (N. S.) Ex. 229.
288; 4 Mann & R. 218.
Chap. II. which old leases were thereupon cancelled, it was held
that there was evidence from which the jury might pre
sume a surrender by operation of law.(a) Cancelling by So the cancelling a lease by the mutual consent of both mutual consent not sur- parties does not destroy the estates already vested or render.
their incidents, and the lessor may therefore maintain an
action of debt for the recovery of the rent. (b) Definition of A surrender by "act and operation of law" act and opera defined as a surrender effected by the construction put by
by tion of law."
the Courts on the acts of the parties, in order to give those acts the effect substantially intended by them; and when the Courts see that the acts of the parties cannot have any operation except by holding that a surrender has taken place, they hold it to have taken place ac
cordingly. (C) Cases to which The cases to which these words are to be applied are these words applied. those “where the owner of a particular estate has been a
party to some act, the validity of which he is by law afterEstoppel. wards estopped from disputing, and which would not be
valid if his particular estate had continued to exist. There the law treats the doing of such an act as amounting to a surrender. The acts in pais which bind parties by way of estoppel are all acts which anciently really were, and in contemplation of law have always continued to be, acts of notoriety not less formal and solemn than the execution of a deed, such as livery, entry, acceptance of an estate, and the like. Whether a party had or had not concurred in an act of this sort was deemed a matter which there could
(a) Walker v. Richardson, 2 M. & W. 882; 6 L J. (N. S.) Ex. 229.
(6) Ward v. Ld. Lumley, 5 H, & N. 87; Doe v. Thomas, 9
B. & C. 288; 4 Mann, & R. 218.
(c) Lynch v. Lynch, 6 Ir. L. R. 136, per Brady, C. B. ; see Cannan v. Hartley, 9 C. B. 634 ; 19 L, J. C. P. 323.
be no difficulty in ascertaining, and then the legal conse- Chap. II. quences followed."(a) The surrender is presumed to have preceded the act to which the tenant is party.(b)
A tenant for a definite term of years will not forfeit Disclaimer. his term by orally refusing, upon demand of the rent made by his landlord, to pay the rent, and disclaiming his landlord's title.(c)
A parol agreement by the tenant to pay an additional Agreement to rent will not have the effect of creating a new tenancy.(d) rent.
additional So a parol agreement by the landlord to lay out money By landlord to
lay out money. on the premises, the tenant paying an increased rent or a per centage on the outlay, does not create a new demise so as to amount to a surrender of the then existing term, for it cannot be supposed to be in the contemplation either of the landlord or tenant that the old lease should be at an end, and that instead of it a new lease should be created, which being by parol would only have the effect of a lease at will.(e) An agreement by the tenant to purchase the premises Agreement to
purchase. from the landlord does not amount to a surrender,(1) as there is an implied condition in the contract that the landlord shall make out a good title ; but the contract may be so specially worded as to be an absolute contract
(a) Lyon v. Reed, 13 M. & W. 306, 309, 13 L. J. Ex. 377, per Parke, B.; see also Bessell v. Landsberg, 7 Q. B. 638 ; Nickells v. Atherstone, 10 Q. B.
K. 307; Doe v. Geekie, 5 Q. B.
(@) Donellan v. Read, 3 B. &
(f) Tarte v. Darby, 15 M. & W. 601, 15 L. J. Ex. 326 ; and see Hamerton v. Stead, 3 B. &
(6) Cannan v. Hartley, 9 C. B. 634, n. a.
(c) Doe v. Wells, 10 A, & E. 43.
(d) Geekie v. Monk, 1 C. &
Ineffectual notice to quit.
for purchase, whether the vendor shows a good title or not. (a)
A tenancy from year to year cannot be determined unless there be either a legal notice to quit, or a surrender in writing or by operation of law.(6) And such a tenancy cannot therefore be determined by a parol license from the landlord to quit in the middle of a quarter although the tenant leaves the premises, as there is a subsisting term in the premises which can only be surrendered by deed or note in writing, or by act and operation of law.(c)
Nor can such a tenancy be determined by an ineffectual notice to quit, and the tenant's quitting accordingly, if the landlord does not accept possession. Where a tenant from year to year, by a Lady Day holding, agreed by parol with his landlord's agent to quit at the ensuing Lady Day, which was within half-a-year; and the premises were re-let by auction, at which the tenant attended and bid, but the new tenant was not put into possession, it was held that the tenancy was not determined, there not having been either a sufficient notice to quit, or a surrender by operation of law. (d) So where the tenant gave a parol notice to the landlord less than six months before the 25th of March that he would quit on that day, and the landlord verbally accepted and assented to the notice, it was held that there had been no surrender. (e) Again,
(a) Doe v. Stanion, 1 M. & W. 695, 701; Tyr. & Gr. 1065 ; 5 L. J. (N. S.) Ex. 253.
(6) Doe v. Ridout, 5 Taunt. 519.
(c) Mollett Brayne, 2 Camp. 103 ; Thomson v. Wilson, 2 Stark. 379.
(d) Doe v. Johnstone, M'Clel. & Y. 141.
(e) Johnstone v. Huddlestone, 4 B. & C. 922; 7 D. & R. 411; and see Doe v. Milward, 3 M. & W. 328; Bessell v, Landsberg, 7 Q. B. 638.
where the tenant accepted an insufficient notice to quit, Chap. II. and agreed to give up the key of the premises, but afterwards refused to do so, saying that the notice was bad, to which the landlord replied, there would soon be another quarter's rent due; it was held that the tenant's agreeing to give up the key was no acquiescence in the notice, and no surrender within the statute.(a)
A notice to quit, signed by two only of three executors of the original lessor, expressing the notice to be given on behalf of themselves and the third executor, is not good. (6) But where the agreement that the tenancy shall be Landlord tak
ing possession. put an end to is acted upon by the tenant's quitting accordingly, and the landlord, by some unequivocal act, takes possession of the premises, that will amount to a surrender by operation of law. Where, therefore, the tenant left the key of the premises at the counting-house of the landlord, and the latter, though he at first refused to accept it, afterwards put up a board to let the premises and used the key to show them, and painted out the tenant's name from the front, it was held that there was sufficient evidence of surrender by act and operation of law.(c) So where A and B demised a house by lease in writing to C at a rent payable quarterly, and the key of the house was delivered to C's wife, and C entered into possession; but before the first quarter's rent became due (there
(a) Broun v. Burtinshaw, 7 ford, 5 Taunt. 518; Ackland v. D. & R. 603.
Lutley, 9 A. & E. 879; Grim(b) Right v. Cuthall, 5 East.
man v. Legge, 8 B. & C. 324; 491,
Smith v. Lovell, 10 C. B. 6; 20 (c) Phené v. Popplewell, 12 L. J. C. P. 37; Furnivall v. C. B. (N. S.) 331; 31 L. J. C. P. Grove, 8 C. B. (N. S.) 496; 30 235; and see Whitehead v. Clif. L. J. C. P. 3.