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render. (a) If a lessee for twenty years takes a lease for Chap. II. ten years, to begin at Michaelmas, there is no doubt but that the term for twenty years is surrendered or determined presently; for by the lessee's acceptance the lessor hath power to make a new lease during the former.(6)
Where the lessee for years of an advowson was presented to the advowson by the lessor, it was adjudged to be a surrender of his term. (c)
A sheriff who takes a term in execution under a writ Term taken in of fieri facias, and sells, must execute an assignment of the term, according to the provisions of 8 & 9 Vict. c. 106, else the term will still remain in the debtor, and the purchaser will have no defence in an action for the recovery of land. (d)
If a lessee re-demise his whole term to the lessor with a reservation of rent, it will operate as a surrender.(e)
Where the tenant, by letter, authorised the lessor to let the premises to any one else, and the lessor did so, and the new tenant entered into possession, it was held that there was a surrender by operation of law. () If there be two lessees for life, or years, and one of them takes a new lease for years, this is a surrender of his moiety.(g)
Again, if a lessee for years of lands accepts a new (a) Gie v. Ryder, Sid. 75; (d) Doe v. Jones, 9 M. & W. Com, Dig. tit. Surrender, (H.) 372. (L. 1.)
(e) Loyd v. Langford, 2 Mod. (b) Ives v. Sams, Cro. Eliz, 174; Smith v. Mapleback, 1 T. 522; Hutchins v. Martin, ib. R. 441. 605.
(f) Nickells v. Atherstone, (c) Gybson v. Searl, Cro. 10 Q. B. 944 ; 16 L. J. Q. B. 371.
(9) Shep. Touch. 302.
CHAP. II. lease by indenture of part of the same lands, that is a New lease of surrender of that part only, and not for the whole, bepart.
cause there is no inconsistency between the two leases, for any more than that part only which is so doubly leased, and though a contract for years cannot be so divided and severed as to be avoided for part of the years, and to subsist for the residue, either by act of the party or act in law, yet the land itself may be divided or severed, and he may surrender one or two acres either expressly or by act in law, and yet the lease for the residue stands good and untouched, because here the contract for the residue remains entire, whereas in the other case the contract for the whole would be divided, which the law will not allow.(a)
In Morrison v. Chadwick, (b) the landlord evicted his tenant from a part of the demised premises. It was held that the entire rent was suspended during the continuance of the eviction; but that the tenancy was not put an end to, nor was the tenant discharged from the performance of his covenants, other than the covenant
for the payment of rent. New lease The acceptance of a new lease, made voidable upon voidable on condition may
condition, may be a surrender by operation of law, if renbe surrender, dered void according to the contract(); for the surren
der, by taking the new lease, is executed absolutely at the time, and it is not defeated, although the condition makes the second lease void, ab initio, for various pur
(a) Bac. Abr. tit. Leases (s. 3), citing Fish v. Campion, 2 Roll. Abr. 498; see also Earl of Carnarvon v. Villebois, 13 M. & W. 342.
(6) 7 C. B. 266; 6 D. & L. 567; 18 L, J. C. P. 189.
(c) Doe v. Poole, 11 Q. B. 716.
(d) Fulmerston v. Steward, But no surrender, express or implied, in consideration Chap. II. of a new lease, will bind if the new lease is absolutely but not void void; for the ground of the surrender fails.(a) It
lease, creates no new estate, and is no estate inconsistent with the tenant's former interest.(6) Besides, a void contract for a thing that a man cannot enjoy, cannot in common sense or reason imply an agreement to give up a former contract.(c) 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 A B entered and occupied jointly with him, it was held that by this agreement, and the joint occupation under it, the former tenancy was determined, although the lease contracted for had never been granted, Abbott, C.J., saying, “ 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.” Here there is nothing to show that the defendant refused to grant such a lease as was contracted for; and we find, in fact, that a new contract was made to let the premises to two persons instead of one, and that both entered and occupied.(d)
The acceptance of a lease which is voidable, and after- nor accept
ance of lease
Plowd. 107; and see Roe v. Doe v. Poole, ib. 716, 17 L. J.
(6) Lynch v. Lynch, 6 Ir.
Cuap. II. wards made void, contrary to the intention of the made void
parties, and which does not pass an interest according contrary to intention of
to the contract, will not operate as a surrender. Thus, parties.
where tenant for life, with a power of leasing, granted a new lease to the original lessee, which purported to be made in consideration of the surrender of the original lease, but the new lease was not a due execution of the
power, it was held that the new lease did not operate as Rule same a surrender.(a) And the rule is the same whether the whether surrender express surrender be implied or express, for in the case of a or implied.
surrender implied by law from the acceptance of a new lease, a condition ought also to be understood as implied by law, making void the surrender in case the new lease should be made void ; and in the case of an express surrender so expressed as to show the intention of the parties to make the surrender only in consideration of the grant, the sound construction of such instrument in order to effectuate the intention of the parties would make that surrender also conditional to be void in case the grant should be made void. (6)
Where a voidable bishop's lease, which had been granted in consideration of the surrender of a prior lease by deed poll, was avoided by the bishop's successor, it was held that the first lease was not revived by such avoidance.(c)
If the landlord and tenant agree that a new lease shall granted to third party.
be granted to a third party, and such third party either continues in or enters into possession, this will amount to a surrender by operation of law, though no new lease
(a) Doe v. Poole, 11 Q. B. overruling Doe v. Forwood,
3 Q. B. 627; 11 L. J. Q. B. 321. (b) Doe v. Courtenay, 11 (c) Doe v. Bridges, 1 B. & Q. B. 712, 17 L. J. Q. B. 151, Ad, 847.
is ever granted. Thus, where A being tenant from year to year underlet the premises to B, and the original landlord with the assent of A accepted B as his tenant, but there was no surrender in writing of A's interest; it was held that there had been a valid surrender by act and operation of law. (a) But where a tenant from year to year whose holding commenced at Lady Day gave notice at Christmas to his landlord that he would quit the Lady Day following, and the landlord agreed to accept such notice, it was held that this was no determination of the tenancy, there not being a half year's notice, nor a surrender either in writing or by operation of law.(b) Bayley, J., observed that the question whether the landlord's assent to the notice operated as an actual surrender was not raised, inasmuch as that assent was not expressed in writing. The case of Thomas v. Cook was recognized by the Court but distinguished, on the ground that there the surrender operated not by reason of the agreement of the parties alone, but by reason of that agreement coupled with the change of possession. (c)
The tenancy will not be surrendered unless the agreement is in writing, or the new tenant takes possession. (d) Where the landlord grants a new lease to a stranger with
(a) Thomas v. Cook, 2 B. & & Y. 141; Bessell v. Landsberg, Ald. 119; 2 Stark, 408; and 7 Q. B. 638. see Stone v. Whiting, 2 Stark, (c) Johnstone v. Huddlestone, 4 235; Hamerton v. Stead, 3 B. & B. & C.922; 7 D.& R.411. And see C. 482; 5 D. & R. 206; 3 L. J. Doev.Johnston, M'Clel. & Y.141; (K. B.) 33; Rex v. Banbury, Bessell v, Landsberg, 7 Q. B. 638. 3 Nev. & Man. 292; Lynch v. (d) Taylor v. Chapman, Lynch, 6 Ir. L. R. 131.
Peake Add. Cas. 19; and see (1) Johnstone v. Huddlestone, Cocking v. Ward, 1 C. B. 868; 4 B. & C. 922; 7 D. & R. 411; Kelly v. Webster, 12 C. B. 283; and see Doe v. Johnston, M'Clel. Doev.Johnston, M'Clel. & Y. 141.