СНАР. ІІ. Presumption of acceptance of surrender having been some dispute as to arrears of rent and taxes) C's wife delivered back the key to A, who accepted it, it was held that the delivering back of the key animo sursum reddendi, and the acceptance of it by the landlord, amounted to a surrender by act and operation of law.(a) The case was distinguished from Mollett v. Brayne (b) on the ground that in that case it was not shown that the landlord took possession, and it was also distinguished from Johnstone v. Huddlestone (c) on the ground that there the agreement to put an end to the tenancy was never carried out. Where, however, A was tenant to B, who became bankrupt, and A sent the key of the rooms to the office of the official assignee, where it was left with a clerk, who was told that it was the key of the rooms, and A immediately quitted possession, and no further communication took place, it was held that there was no surrender, and the case was distinguished from Dodd v. Acklom,(d) on the ground that the lessor in that case had authority to act for both. (e) If the landlord enter into possession of the premises in pursuance of an agreement for a surrender, he cannot afterwards refuse to accept the surrender. (f) But the mere fact of the landlord's taking possession will not necessarily amount to a surrender. Thus, if the when rebutted. tenant abandon possession of the premises during the term, and the landlord enters and does repairs, or even (a) Dodd v. Acklom, 6 M. & Gr. 672; 7 Sc. (N. R.) 415; 13 L. J. C. P. 11. (b) 2 Camp. 103. (c) 4 B. & C. 922, 7 D. & R. 411. (d) 6 M. & Gr. 672; 7 Sc. (N. R.) 415. (e) Cannan v. Hartley, 9 C. B. 634; 19 L. J. C. P. 323. (f) Natchbolt v. Porter, 2 Vern. 112; Whitehead v. Clifford, 5 Taunt. 518; Furnivall v. Grove, 8 C. B. (N. S.) 496; 30 L. J. C. P. 3. if he uses the premises, the tenancy may not be determined. (a) So where the tenant quitted without giving notice, the fact of the landlord's having put up a bill to let the apartments did not prevent his recovering in assumpsit for use and occupation. (b) CHAP. II. Where the owner of a ferry demised it by parol to A, Landlord taking tenant who finding it unprofitable, agreed to become the lessor's as servant. servant as boatman, and received wages, it was held that there was a surrender by act and operation of law. (c) The acts from which it is sought to be inferred that the tenancy has been put an end to must be unequivocal. (d) Acts must be unequivocal. a new lease. If a lessee for years accept a new lease from his Acceptance of lessor he is estopped from saying that his lessor had not power to make the new lease; and as the lessor could not do this until the prior lease had been surrendered, the law says that the acceptance of such new lease is of itself a surrender of the premises. (e) So if there be tenant for life remainder to another in fee, and the remainder-man comes on the land, and makes a feoffment to the tenant for life, who accepts livery thereon, the tenant for life is thereby estopped from disputing the seisin in fee of the remainder-man ; and so the law says such acceptance of livery amounts to (a) Bessell v. Landsberg, 7 Q. B. 638; 14 L. J. Q. B. 355; Griffith v. Hodges, 1 C. & P. 419. (b) Redpath v. Roberts, 3 Esp. 225. (e) Peter v. Kendal, 6 B. & C. 703. (d) Ackland v. Lutley, 9 A. & E. 879, 894. (e) Lyon v. Reed, 13 M. & W. 305, 13 L. J. Ex. 377, per CHAP. II. New lease need not be in writing. Recital in second lease. a surrender of his life estate. Again, if tenant for years accept from his lessor a grant of a rent issuing out of the land and payable during the term, he is thereby estopped from disputing his lessor's right to grant the rent, and as this could not have been done during his term, therefore he is deemed in law to have surrendered his term to the lessor. (a) In these cases it will be observed there can be no question of intention, it is the act of the law, and will prevail in spite of the, intention of the parties. (b) In Magennis v. MacCullogh, (c) Lord C. B. Gilbert said that the words "by act and operation of law," are to be construed a surrender in law by the taking a new lease which, being in writing, is of equal notoriety with a surrender in writing.(d) According to this reasoning the new lease must be in writing. But in Thomas v. Cook,(e) the tenancy, which was from year to year, was created by parol, and was held to have been surrendered by a parol under-lease, and the acceptance of the new tenant by the landlord, and therefore it would seem that the acceptance of a lease to himself by parol, by the old tenant, will be a surrender of the existing lease. (ƒ) A recital in a second lease that it was granted in consideration of the surrendering up into the hands of the (a) Lyon v. Reed, 13 M. & W. (b) Lyon v. Reed, 13 M. & W. 306; 13 L. J. Ex. 377. (c) Gilb. Eq. Rep. 236. (d) And see Roe v. Abp. of York, 6 East. 86. (e) 2 Stark, 408; 2 B. & Ald. 119. n. (f) See 1 Wm. Saund. 293, lessor, by the lessee at or before the delivery thereof of the lease first granted, is not a sufficient surrender. (a) CHAP. II. new lease. A mere agreement to grant a new lease will not put Agreement for an end to the tenancy unless a new tenancy is actually created. (b) Thus where the tenant agreed to relinquish his interest under his lease, and to accept a fresh lease, and to hold the premises as tenant from year to year until such lease was tendered, and no lease was executed : on an action for rent it was argued for the defendant that, if there is a tenancy under a lease, and the parties make a verbal agreement for a sufficient consideration, that instead of the existing term, there should be a tenancy from year to year, at a different rent, that would be a surrender of the lease by operation of law; but it was held that the term created by the existing lease would not be determined until the new lease was executed. (c) So also an agreement between the lessor and a stranger, that the lessee shall have a new lease, is not a surrender. (d) But if a tenant from year to year of premises gives them up to the landlord in pursuance of a parol agreement that the tenant shall take other rooms upon the same terms, this amounts to a surrender. (e) Where a lessee for twenty-one years took a lease of the same lands for forty years, to begin immediately after the death of J S, it was held that this was not any present (a) Doe v. Courtenay, 11 Q. B. 702; 17 L. J. Q. B. 151; Roe v. Abp. of York, 6 East, 86. (b) Hamerton v. Stead, 3 B. & C. 482; 5 D. & R. 206. (c) Foquet v. Moore, 7 Exch. 870; 22 L. J. Ex. 35; and see John v. Jenkins, 1 Cr. & M. 227; Crowley v. Vitty, 7 Exch. 319; Badeley v. Vigurs, 4 E. & B. 71; 173. New lease to begin presently. CHAP. II. What is a sufficient new lease. surrender of the first term, because J S might wholly outlive that term, and then there would be no union to work a surrender; and it being in equilibrio in the meantime whether he would survive it or not, the first term should not be hurt till that contingency happened; for if J S died within the first term, then what remained of it was surrendered and gone by the taking place of the second. (a) If a lessee accept a new lease de vestura terræ, it will be a surrender. (b) So, also, if he accept a grant of common, or rent out of the same land, to commence at a certain day within the term. (c) Where the lessee for years of a house accepts a grant of the custody of the same house, that is a surrender; for the custody of the same thing which was let before, is another interest in the same thing leased, and cannot stand with the first lease. (d) If the sovereign grant an office by patent, or make a demise for years, the acceptance of a new patent in the one case, or of a new lease in the other, is no surrender of the first grant. (e) So where a lessee for years of a park or a manor accepts a grant of the office of parkkeeper of the same park for his life, or takes a lease of the bailiwick of the manor, that is not a surrender, because it is an office collateral to the land; (f) and the acceptance of a new lease in trust is not a good sur (a) Bac. Abr. tit. Leases (S.) 2. (b) Com. Dig. tit. Surrender (T.) 1. (c) Mellows v. May, Cro. Eliz. 874; Gybson v. Searl, Cro. Jac. 176. (d) Gybson v. Searl, Cro. Jac. 177; Earl of Arundel v. Lord Gray, Dyer, 200 b. (e) Brook v. Goring, Cro. Car. 197. (f) Gybson v. Searl, Cro. Jac. 176; Woodward v. Aston, 1 Vent. 296. |