(549)*

18 E 3.44.

villain in gross) that if a man be disseised of the manor whereunto the villain is regardant, he is out of possession of his villain, and so an advowson appendant, and the like. Hereby Littleton putting his case of a villain in gross) and by divers authorities a point controverted

(*) 9 Ε. 4. 38. 3 H. 4. in our books (*) is resolved, viz. that by the grant of the 15. manor without saying cum pertinentiis, the villain re16 E. 3. Quar Imp. 146. 19 R. 2 Tresp. gardant, advowson appendant, and the like, do "pass; for if the disseisor shall gain them as incidents to the manor, whose estate is wrongful, à multo fortiori the feoffee, who cometh to his estate by lawful conveyance, shall

255. 19 H. 6. 33. 21 H. 6. 9. 33 H.6.

33. 5 Η. 7.36 38.

33.9. 22 H. 6 33.

10 H. 7.9. F. N. B. per Moyle. 30 E. 3. have them as incidents. But where the entry of the dis31. 39 Ε. 3.21. 43 seisee is lawful, he may seise the villain regardant, or E. 3. 12. (Plowd. 258 a. Ante, 122 b. Post, present to the advowson, &c. before he enter into the. 349 b. 363 b.)

manor: otherwise it is where his entry is not lawful;

(p) Practon, fol. 242, and so are the ancient authors (p) to be intended (o 1).

243. Britton, fol. 126. Fleta, acc.

LITTLETΟΝ.

BUTin this case, if these words were in the deed (45), [Sect.542.307 a.] &c. Sciatis me dedisse et concessisse (46) tali, &c taor where the deed of lem villanum ineum, this is good; but this shall enure confirmation enures by way of grant.

307 a. 2H. 6. F. N. B. 7.. b.

by force and way of grant, and not by way of confir

mation, &c.

Here it is to be observed, that a man hath an inheritance in a villain, whereof the wife of the lord shall be endowed, as hath been said; for in him a man may have

24 E. 3. Discount. 16. an estate in fee or fee-tail for life or years. And therefore Littleton is here to be understood, tl at in the grant there were these words (his heirs) or else nothing passed but for life, as of other things that lie in grant.

LITTLETON.

AND (47) sometimes these verbs dedi et concessi shall [Sect. 543.307 a.] enure by way of extinguishment of the thing given

(45) &c. not in L. and M. nor
Roh.
(46) tali, not in L. and M. nor
Roh.

(47) Et-item, L. and M. and

Roh.

(01) See ante, 129 b. vol. 1. p. 232. [Ed.]

or granted; as if a tenant hold of his lord by certain rent, and the lord grant by his deed to the tenant and his heirs the rent, &c. this shall enure to the tenant by way of extinguishment, for by this grant the rent is extinct, &c.

And this grant of the rent shall enure by way of re

lease.

307 2.

3 Ε. 3. 12. & 3 Ass. 7.

LITTLETON.

(2 Rol. 405.)

IN the same manner it is (18), where one hath a rent-charge out of certain land, and he grant to the [Sect. 544.307 b.] tenant of the land the rent-charge, &c. And the reason is, for that it appeareth, by the words of the grant, that the will of the donor is, that the tenant shall have the rent, &c. And inasmuch as he cannot have or perceive any rent out of his own land, therefore the deed shall be intended and taken for the most advantage and avail for the tenant that it may be taken, and this is by way of extinguishment.

But if the grantee of the rent-charge granteth it to the tenant of the land and a stranger, it shall be extinguished but for the moiety: and so it is of a seignory.

(550)%

307 b. 34 H. 6. fol. 41. (Ante, 280 a.)

296 b.

If the disseisor make a lease for years to begin at Michaelmas, and the disseisee confirm his estate, this is Confirmation of estate void, because he hath but interesse termini, and no estate in him, whereupon a confirmation may enure (P1).

(48) un-home, L. and M. and Roh.

(P 1) So a confirmation, made by him who has nothing at the time, is not good: as if tenant in tail and the issue in tail join in a grant of the next avoidance, and the tenant in tail dies, this is not a confirmation by the issue in tail, for he had nothing at the time. 1 Rol. Abr 482. So a confirmation shall not have relation to the prejudice of another: as if a parson makes a lease, and afterwards the patron being bishop grants the next avoidance to A., and it is confirmed by the dean and chapter, and afterwards the lease is by them confirmed; the presentee of A. shall avoid the lease, for the grant to A. was before the confirmation of the lease. Hob. 7. So the subsequent presentee shall avoid it; for being avoided by the presentee of A., it shall be void as to all his successors. Com. Dig. 144. Confirmation (D. 4.) (D. 5.)-[Ed.)

of lessee for years beføre entry, is void. 4 H. 7. 10. by Read. 22 E. 4. 36.

1

551;

337 b.

CHAP. XLIL

SAME SUBJECE

OF A SURRENDER

SURRENDER (A), sursum redditio, properly is a yield

Definition of a curren ing up an estate for life, or years, to him that hath an

der.

(Post, 218 b. Perk 581. z Roi. Abr. 494.)

(A) A surrender is of a nature directly opposite to a release ; for as that operates by the greater estate descending upon the less, a surrender the falling of a les estate into a greater. As a surrender is, generally, for the advantage of the surrenderee, the law will often presume his assent to it; and it has been held, that a surrender immediately devests the estate out of the surrenderor and vests it in the surrenderee; for this is a conveyance at common law, to the perfection of which, no other act but the bare grant is necessary; and, though it be true that every grant 18 a contract, and there must be an actus contra actum, or a mutual consent, yet that consent is implied. A gift imports a benefit, and an tsumpsit to take a benefit may well be presumed: and there is the same reason why a surrender should vest the estate before notice or agreement, as why a grant of goods should vest a property; or sealing a bond te another in his absence should be the obligee's bond immediately, without notice. Thompson v. Leach, 2 Salk. 618. But the particular tenant cannot enforce the surrender upon the remainder-man, who disagrees to it. 2 Vent. 207. But if the surrenderee do once agree to it. he cannot afterwards disagree; for his first agreement perfects the surrender. The actual entry of the surrenderee into the land is not necessary. And therefore if tenant for life, or years, surrender to him in reversien out of the land, and he agree to it, he has the land in him presently. And yet he cannot bring an action of trespass for any trespass done upon the land, until he has made his entry Shep. Touch. 307, 308. The technical and proper words of a surrender, are, surrender and yield up. But any form of words, by which the intention of the parties is sufficiently manifested, will operate as a surrender. Smith v. Mapleback, 1 T. R. 441. Thus, if a lessee for years remise, release, discharge, and for ever quit claim to his lessor all his right, title, or interest, in or to such lands, it will amount to a surrender. Perk. sect. 607. So, if lessee for life leases to the lessor for the life of the lessee, this is a surrender. 2 Rol. Abr. 497. Livery of seisin is not necessary to a surrender, because there is a privity of estate between the surrenderor and surrenderee; for the particular estate of

immediate *estate in reversion or remainder, wherein the estate for life, or years, may drown by mutual agreement between them (B).

the one, and the remainder of the other, are, in fact, one and the same estate; and livery having been once made at the creation of it, there can be no necessity for a second livery. 2 Bl. Com. 326. A surrender might formerly have been by parol'; but by the statute of Frauds, 29 Car. 2. c. 3. it is enacted, that no lease, estate, or interest of freehold, or term of years, or any uncertain interest, not being copyhold, shall be surrendered, unless by deed or note in writing, signed by the party surrendering the same, or his agent lawfully authorized by writing, or by act or operation of law. Upon the construction of this statute it has been held, that a lease for years cannot be surrendered by cancelling the indenture; because the intent of the statute was to take away the manner they formerly had of transferring interests in lands by signs, symbols, and words only; and therefore as livery of seisin on a 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 a surrender, before the statute, but is now taken away, unless there be a writing uuder the hand of the party. And 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. Magenis v. Macullock, Gilb. Rep. 236. Roe, d. Earl of Berkeley v. Archbishop of York, 6 East. 86. The Statute of Frauds, however, does not make a deed absolutely necessary to a surrender; but a note in writing will have the same effect. Farmer.v. Rogers, 2 Wils. 27. Smith v. Mapleback, 1 T. R. 441. But it must be stamped according to the provisions of stat. 55 Geo. 6. c. 184-[Ed.]

(B) To make a surrender good, the person who surrenders must be in possession; and the person to whom the surrender is made, must have a greater estate immediately in reversion or remainder, in which the estate surrendered may merge: but it is immaterial whether he has it in fee, or in tail, or for life. 2 Rol. Abr. 494. So a lessee for years may surrender to him, who has the reversion only for years, Hughes v. Robotham, Cro. Elız. 302. Poph. 31. Bac. Abr. tit. Lease (S2); though the lessee be for several years, and the reversioner has it only for one year, or a less term. Per Popham and Fenner, Cro. Eliz 302. If a lessee demises part of his estate to the lessor, he may surrender the other part; for the reversion of that remains in the lessor. 2 Rol. Abr. 494. And if a lessee for thirty years demises for ten years, and both the lessees join in a surrender, it will be good; for it shall be construed the surrender of the lessee for thirty years first, and then of the lessee for ten years. Plowd. 541 a. So a surrender to an infant will be good; for his assent will be presumed till a disagreement appears. 2 Vent. 208. But a surrender to him who has not any reversion in him, is void; as if a lessee for years, to commence at Michaelmas, surrenders before Michaelmas, by deed, it is void; for till Michaelmas the lessor had not any reversion, in which it could merge. Infra, 338 a. And a surrender cannot be made, if the reversion or remainder be not immediate; as if lessee for thirty years leases to B. for ten years, B. cannot surrender to the first lessor, Plowd. 541 a: or if a statute be acknowledged to A. and another to B., and a fine levied by him in the reversion to A., his estate is not merged; for the mesne interest of B. prevents the surrender or merger of his estate. Skin. 263. 6 Com. Dig 315, 316. Surrender (F) and (G). So in the case of a tenaut forlife, with remainder to trustees during his life to preSurve contingent reprainders, the estate of the trustees is a vested estate o Veehold, and will therefore prévent a surrender by him to the uitcrior

nainder-mar. Ante, p. 108 n. (K). Et vid ipfa.333

(552)*

338 a.

*Note, there be three kind of surrenders, viz. a surThe different kinds of render properly taken at the common law, which is here before described, and whereof Littleton (sect. 636)

surrender.

(Post, 218 b.) (9 Rep. 75.) 2 Eliz. Dier 176. 14 Η.

7.3. speaketh (c). Secondly, a surrender by custom of lands 27 Ass. 27. 49 E. 3.2. holden by copy, or of customary estates, whereof you

11 Η. 4. 2. 12 H. 4. 21. 13 Η. 4. 13.

14 Η. 8. 15. 37 Η. 6.

17.

21 H. 7. 6.

40 E. 3.24. 31 Ass. 26. 50 Ε. 3. 6.

44 Ass. 3. 35 Η. 8.

have read before, sect. 74, and a surrender improperly taken (as appears before, sect. 550) of a deed. And so of a surrender of a patent, and of a rent newly created, and of a fee-simple to the king.

A surrender properly taken is of two sorts, viz. a surrender in deed, or by express words, (whereof Littleton (sect. 636), *putteth an example) and a surrender in law

Dier 37. 8 Ass. 20. wrought by consequent by operation of law.

4 Mar. Dier 14.. 11 Eliz. Dier 280.

(553)*

1. Surrender in deed.

Might be by parol (at common law), and livery of seisin not requisite.

Also, there is a surrender without deed, whereof Littleton (sect. 636) putteth an example of an estate for life of lands, which may be surrendered without deed, and without livery of seisin; because it is but a yielding, or a restoring of, the state again to him in the immediate reversion or remainder, which are always favoured in

But a surrender of law. And there is also a surrender by deed; and that things in grant must be by deed. is of things that lie in grant, whereof a particular estate cannot commence without deed, and by consequent the estate cannot be surrendered without deed.

But in the example that Littleton (sect. 636) putteth, the estate might commence without deed, and therefore might be surrendered without deed. And albeit a particular estate be made of lands by deed, yet may it be surrendered without deed, in respect of the nature and quality of the thing demised, because the particular estate might have been made without deed. And so, on the other side, if a man be tenant by the curtesy, or tenant in dower, of an advowson, rent, or other thing that lies (Ante, 225 b. Cro. in grant; albeit there the estate begin without deed, yet, Car. 399. 2 Rol. Abr. in respect of the nature and quality of the thing that lies 498.)

(C) See ante, p. 551. n. (A).- [Ed.]