A Treatise on the Statute of Frauds

CHAP. II.

the assent of the tenant under an existing lease, and the latter gives up his own possession, that is a surrender by operation of law. (a) The privity of estate between the lessor and the first lessee is destroyed by the acceptance of a new tenant, (b) and it is more probable that the legislature intended to give effect to an agreement, so proved as a surrender by operation of law, than to allow either party to defeat the agreement by alleging the absence of written evidence. (c) The reason of the rule is that, as a new letting to an old tenant, commencing immediately, operates as a surrender of the original term, because the lessor could have no power to create the new term if the original term had subsisted; so a new letting to a third party, with the assent of the original tenant, has the same operation. (d)

Where the defendant took premises for a year certain, but quitted at the end of the first quarter, and the plaintiff then let the premises for a portion of the remaining three quarters to another tenant at a less rent, it was held that by re-letting the premises the plaintiff had assented to the determination of the original tenancy, and dispensed with the necessity of a legal surrender; and the case was distinguished from Mollett v. Brayne, (e) as there the tenant had a subsisting term, which could not be determined by a mere parol surrender. (ƒ)

(a) Davison v. Gent, 1 H. & N. 744; Lawrance v. Faux, 2 F. & F. 435; Gore v. Wright, 8 A. & E. 118, 3 N. & P. 243.

(b) Thomas v. Cook, 2 Stark, 408, 2 B & Ald, 119.

(d) M'Donnell v. Pope, 9 Hare, 705; and see Hobson v. Cowley, 27 L. J. Exch. 209 ; Walker v. Richardson, 2 M. & W. 882, 6 L. J. (N. S.) Ex. 229.

(e) 2 Camp. 103, supra, p. 42. (f) Walls v. Atcheson, 11 Moo. 379, 3 Bing. 462; and see Hall v. Burgess, 5 B. & C. 332;

Where the tenant of a house, three cottages, and a stable and yard, let at an entire rent for a term of seven years; before the expiration of the term assigned all the premises to B for the remainder of the term, the house and cottages being in the possession of undertenants, and the stables and yard in that of A; and the landlord accepted a sum of money as rent up to the day of assignment, which was in the middle of a quarter, and B took possession of the stables and yard only; and the occupiers of the cottages having left them after the assignment, but before the expiration of the term, the landlord re-let them; and A paid no rent after the assignment, but the landlord received rent from the undertenants; and before the expiration of the term the landlord advertised the whole of the premises to be let or sold; it was held that this was a surrender by operation of law of all the premises. (a)

Where two persons, holding from different lessors, verbally agreed to exchange their holdings, and on the same day each took possession of the other's land, the steward of both the lessors expressing his concurrence, it was held that there was evidence to go to the jury of surrender. (b)

A tenant from year to year died, leaving his widow in possession, with the knowledge of the administrator to the deceased tenant. It was held that there was no evidence of a surrender. (c)

Woodcock v. Nuth, 8 Bing. 170, 1 Moo. A. Sc. 317.

(a) Reeve v. Bird, 1 C. M. & R. 31; 4 Tyr. 612.

(b) Bees v. Williams, 2 C. M. & R. 581; Tyr. & Gr. 23.

In this case, Thomas v. Cook
does not appear to have been
cited.

CHAP. II.

Commencement of new

tenancy question of fact.

Consent of all parties neces

sary.

Where premises had been let to B for a term, determinable by a notice to quit, and, pending such term, C applied to A, the landlord, for leave to become the tenant instead of B, and upon A consenting, agreed to stand in B's place, and offered to pay rent, it was held that A might maintain an action for use and occupation against C, and that the latter could not set up B's title in defence to that action. (a)

When there has been a surrender by the admission of a new tenant, it is a question for the jury, and not for the judge, to be determined by a consideration of all the facts, at what time the tenancy commenced. (b)

In order that there may be a valid surrender by the grant of a new lease to a new tenant, the transaction must be assented to by all the parties, (c) as the legal presumption, until the contrary appears, is, that the new tenant came in as the assignee of the original lessee. (d)

Where W and H, by agreement, in March, 1827, became tenants to the plaintiff for three years of premises occupied by them as partners, with power to them to extend the term to seven years by giving the plaintiff notice, which they did in January, 1827, and at Midsummer, 1828, W retired from the partnership, which was carried on by H with a new partner, S, the plaintiff giving receipts for rent as received from H and S, and in February, 1829, gave H a letter to his attorney signifying that a lease might be made to H and S, but no

(a) Phipps v. Sculthorpe, 1 B. & Ald. 50; but see Hyde v. Moakes, 5 C. & P. 42.

(b) Walker v. Godé, 6 H. & N. 594; 30 L. J. Ex. 172.

B. & Ad. 219; Trent v. Hunt, 9 Exch. 14, 22 L. J. Exch. 318; Cadle v. Moody, 30 L. J. Exch. 385.

(d) Doe v. Williams, 9 D. &

lease was ever prepared, it was held that W remained liable to the plaintiff for rent accruing in 1831. (a)

apply. In

In Creagh

Assent to the grant of a new lease by one of several executors is not sufficient to determine the tenancy, although possession is given up by the original tenant. (b) The foregoing cases apply exclusively to chattel interests, and it is not quite clear whether the doctrine of surrender by the grant of a new lease to a third party would apply to the case of a freehold interest. In Lynch v. Lynch (c) it was held that the doctrine did that case the original lease was freehold. (d) v. Blood, (e) Lord St. Leonards, referring to the doctrine of Thomas v. Cook, said, "The case of Lessee Lynch v. Lynch was relied upon as an authority that the doctrine. equally applies to a freehold interest like that in this case, and no doubt the point was so decided. But with all my respect for the judges who decided that case, I cannot follow it-I never so understood the law; and the authorities quoted in Lyon v. Reed would seem to establish the contrary to be the law. I think the new rule would have a more extensive operation than at first sight would appear. Upon this point, if I were compelled to decide, I should be of opinion that the freehold interest could not be held to be surrendered by operation of law on the ground of an acquiescence in the new lease."

(a) Graham v. Wichelo, 1 C. & M. 188, 3 Tyr. 201; and see Matthews v. Sawell, 2 Moo. 262, 8 Taunt. 270; Lyon v. Reed, 13 M. & W. 285, 13 L. J. Ex. 377; M'Donell v. Pope, 9 Hare, 705.

(b) Turner v. Hardey, 9 M & W. 770; Right v. Cuthell, 5 East, 491.

(d) See 2 Sm. L. C. 7th ed.

857.

(e) 3 J. & Lat. 133.

CHAP. II.

Query whether

the doctrine of

Thomas v. Cook applies to free

hold interests.

CHAP. II.

The doctrine of Thomas v. Cook does not extend to incorporeal hereditaments. (a)

The doctrine of surrender by the grant of a new lease to a third party, with the assent of the original lessee, coupled with a change of possession, as laid down in Thomas v. Cook, has been questioned in some later cases, and especially in Lyon v. Reed. (b) There it was decided that the delivery up by a lessee, who had a term of years in a reversion, of his lease, with an assent by him to the grant of a new lease by the owner of the reversion expectant on his term, to a third person, and the grant of such lease did not amount to a surrender by operation of law, as these acts were not such as bound parties by way of estoppel. Parke, B., said, "If the doctrine of Thomas v. Cook should be extended, it may very much affect titles to long terms of years-mortgage terms, for instance, in which it frequently happens that there is a consent expressed or implied by the legal termor to a demise from a mortgagor to a third person. To hold that such a transaction could, under any circumstances, amount to a surrender by operation of law, would be attended with most serious consequences. The case of Thomas v. Cook has been followed by others, and acted upon to a considerable extent; whatever doubt, therefore, we might feel as to the propriety of the decision that in such a case there was a surrender by act and operation of law, we should probably not have felt ourselves justified in overruling it. And perhaps the case itself, and others of the same description, might be supported upon the ground of the actual occupation by the landlord's new tenants, which would have the effect

(a) Lyon v. Reed, 13 M. & W.

(b) 13 M. & W. 309.

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