i in grant, it cannot be surrendered without deed. And (554)* Littleton (sect. 636) putteth his case of surrender of Surrender must be of an estate in possession, for a right cannot be surrendered an actual'estate, and not of a mere right. (D). *And it is to be noted, that a surrender in law (E) 6 H. 7. 9. 37 Н. 6. 17. 11 Н. 7. 6. 14 H. 7. 4. (D) A surrender can only be made by a person who is in possession; (5 Rep. 11. 323. a right. 2 Rol. Abr. 494. Perk. sect. 599, 600. So, if a woman has a 2 Rol. Abr. 494. the discontinuee of tenant in tail cannot surrender to the issue in tail. (E) If a lessee for life, or years, takes a new lease of him in the re- 46. 14 H. 7. 4. : render in deed, before 2. Surrender in law. is in some cases of greater force than a surrender in Lease for years to begin at a future day is deed. As if a man make a lease for years to begin at not merged by a sur- Michaelmas next, this future interest cannot be surrenthe day; Secus as to a dered, because there is no reversion wherein it may drown; but by a surrender in law it may be drowned. As if the lessee before Michaelmas take a new lease for years, either to begin presently, or at Michaelmas. this is a surrender in law of the former lease. Fortior & æquior est dispositio legis quam hominis (1). surrender in law by acceptance of a new lease. (555)* 218 b. *If a man make a lease for forty years, the lessee afOn lessee's acceptance terwards taketh a lease for twenty years, upon condition of a new lease on con- that if he doth such an act, that then the lease for twenty dition, by breach whereof it becomes years shall be void, and after the lessee break the convoid, yet the surrender dition, by force whereof the second lease is void, not in law of the old lease is absolute. ston's case, 107 b. withstanding the lease for forty years is surrendered, Pl. Com. in Fulmer- for the condition was annexed to the lease for twen(2 Rol. Abr. 494, 495. ty years, but the surrender was absolute. So it is, 497, 498, 499.) (5 Rep. 11 a. 1 Rol. if a man make a lease for forty years, and the lessor Abr. 412.) So in case the lessee grant the reversion to the lessee upon condition, and accepts a grant of the after the condition is broken, the term was absolutely reversion on condition, &r. (1) For the first lease and the second cannot subsist together, and the parties, by making a contract of as high a nature for the same thing, tacitly consented to dissolve the former; for, without the dis solution of that, the lessor could not grant to the lessee that interest which was already passed from the lessor to the lessee by the first lease. [Note to the 11th edition.] the first lessee accepts a new lease: In all these cases there is a surrender in law of the first leases. Shep. Touch. 301, 302. And if there be two lessees for life, or years, and one of them take a new lease for years, this is a surrender of his moiety. But if the lessee only license the lessor to make a feoffment, and to give livery of seisin for him; or to give livery of seisin for him as his attorney; or license him to enter into the land, and no more; neither of these things will amount to a surrender in law. So if the second lease be made of another, and not of the same thing whereof the first lease is made; as where the first lease is of the land; and the second is of a rent, or other profit to be taken out of the land; in these cases, there is no surrender of the first lease. Ibid. So if the second lease is not to begin until the first lease end, the taking of this second lease is no surrender of the first lease. And if the second lease be not a good lease, it will not be construed to be a surrender of the first lease; for there is no inconsistency in the acceptance of a new good lease being a surrender of the former, but the accepting a new void lease cannot show an intention to surrender the other, for a void contract for R thing that a man cannot enjoy, cannot, in common sense and reason, imply an agreement to give up a former contract. Davison, d. Bromley v. Stanley, 4 Burr. 2210. Et vid. Doe, d. Earl Berkeley v. Archbishop of York, 6 East. 86. [Fd.] the lessee surrenders on 45 Ε. 3. surrendered. And the diversity is when the lessor grants Diversity herein when the reversion to the lessee upon condition, and when the condition. lessee grants or surrenders his estate to the lessor; for a 7 E. 4.29. 14 Ε. 4. 6. condition annexed to a surrender may revest the particular estate, because the surrender is conditional. But when the lessor grants the reversion to the lessee upon condition, there the condition is annexed to the reversion, and the surrender absolute (F). A guardian in chivalry took a feoffment of the infant On guardian in chiwithin age, that was in his ward, and the infant brought valry taking a feoff ment of the infant, an assise, and the guardian shall be adjudged a disseisor, though it be void, his which proveth that the feoff nent as against the infant interest is surrendered was void, and yet by acceptance thereof the interest of 8 E. 2. Ass. 395. the guardian was surrendered. A man maketh a lease for term of life by deed, reserving the first seven years a rose, and if the lessee will hold the land after seven years, to pay a rent in money; the lessee will not hold over, but surrender his term: in this case in judgment of law he had but a term for seven years. And so it is if a man make a lease for life, and if the lessee within one year pay not twenty shillings, that he shall have but a *term for two years, if he pay not the money the estate for life is determined, and he shall have the land but for two years. in law. 50 E. 3. 27. (556)* A master of an hospital being a sole corporation, by 338 b. the consent of his brethren makes a lease for years of On lease for years by a master of an hospital part of the possessions of the hospital; afterwards the sole seised, &c. the leslessee for years is made master, the term is drowned (G); see being afterwards made master, the term for a man cannot have a term for years in his own right, is merged. (4 Leo. 37. Hob. 3.) Adjudged Mich. 16 & 17 Eliz. int. Turner it & Gray def. in ejectin tione firmæ in Coni muni Banco Rot 945. Sir Francis Fleming's (F) See acc. Dyer, 143. 2 Rol. Abr. 495. 3 Prest. Conv. 563. So is, although the second lease be voidable, as if it be made by tenant tail; or as if a man makes a lease for years of land, and then makes a feoffment to another of the land, and takes back an estate to him and his wife of the land, and afterwards makes a new lease to the lessee for ten case. years; this is a surrender in law of the first lease: but if the second lease So in case of lessee be merely void, then it is otherwise. Sheph. Touch. 301. Supra, n. for years marrying the feme lessor. (E).-[Ed.] (G) See ante, vol. 1. p. 192. n. (K), and infra, n. (L).-[Ed.] and a freehold in auter droit to consist together (as if a man lessee for years take a feme lessor to wife) (н). (a) But a man may have a freehold in his own right, and a term in auter droit: and therefore if a man les. sor take the feme lessee to wife, the term is not drowned, but he is possessed of the term in her right during the coverture (1) (b). So if the lessee make the lessor his (H) But this doctrine of Lord Core, that a man cannot have a term for years in his own right, and a freehold in autre droit, to consist together, has been demed to be law Litchden v. Winsmore, 1 Rol. Abr. 934. And see Platt v. Sleap, Cro. Jac. 276. 1 Bulstr. 118. Godb. 2; in which case the husband had a term in his own right, and the freehold in right of his wife by descent, and yet it was held that these estates might consist together After a review of the cases on this branch of the law of merger, Mr. Preston, (3 Conv. 285, 286.), observes, that the distinction really established by them is not generally, that there will not be any merger, because the two estates are held in different rights, or because the freehold is held by the owner of the term in his own right, and the term in autre droit. It is only that the accession of one estate to another, merely by the act of law, as by marriage, by descent, by executorship, intestacy, &c. will not occasion a merger of one estate in the other, when the two estates are held in different rights. While a descent of the inheritance will merge a term, which a person has in his own right, though he be a trus tee of that term. Lee's case, 3 Leon, 110. Plowd. 418. 4 Leon. 37. And though there will not be any merger, where either of the two estates, which are held in different rights, is an accession to the other by the act of law, yet, it is observable, that the lesser estate will merge as often as one of them is an accession to the other, by the act of the party. 3 Prest. Conv. 309, 310. Therefore, if a husband possessed in right of his wife, purchases the reversion or remainder; or if an executor has a term in right of his testator, and purchases the reversion; in both these instances the term will merge. 4 Leon. 38. Bro, Surr. 52.-[Ed.] (1) If a husband who is tenant for years intermarries with a woman who at that time has the reversion, or to whom the reversion descends after the intermarriage, the term will not merge, because in one case the right of the husband in the reversion of his wife, and in the other case the descent, is an act of law. But if a husband, tenant for years in right of his wife, purchase the immediate reversion, the term will be annihilated; for the purchase was the express act of the husband, and amounts to a disposition of the term. And if a feme, who has a term for years as executrix, intermarry with a person who after the intermarriage becomes entitled by purchase to the immediate reversion; or if a person, who has a term as executor, do himself purchase the immediate reversion; the term will, in either case, be merged. 3 Prest. Conv. 304, 305. When the husband has an estate of freehold in his own right and the fee in right of his wife, the freehold will not merge; and therefore where a woman seised of land in fee, leased the same to a stranger for life, and took a husband, and the lessee granted his estate to the husband, this was no surrender; and yet the husband was seised of the reversion in fee, which was immediate unto the estate of the lessee, viz, in right of his wife, and not in his own right. And it seems to be a general rule, that the freehold of the wife will not in any case merge in the freehold of the husband; for the wife cannot part with her freehold without some executor, the term is not drowned. Causâ quâ supra or where the lessee (к). maks the lessor his executor; act of record. 3 Prest. Conv. 305, 306. Stephens v. Bretridge, 1 Lev. 36. Perk. sect. 612-622.-[Ed] (K) It may be proper in this place to take a concise view of some of the leading heads of the doctrine of merger, a subject which is intimately connected with the law of surrender Merger is described to be whenever a greater estate and a less coincide and meet in one and the same person without any intermediate estate; whereby the less is immediately annihilated, or is said to be merged, that is, sunk or drowned in the greater. Thus, if there be tenant for years, and the reversion in feesimple descends to or is purchased by him, the term of years is merged in the inheritance, and shall never exist any more, Shep. Touch. 341. ed. Hillyard. 2 Bl Com 177. The object of merger is to accelerate the possession, or at least the estate in which the merger takes place. 3 Prest. Conv. 6 It is an act of law; and seems entitled to the denomination of the extinguishment by act of law of one state in another by the union of these two estates. To consolidate two estates, and confound them into one estate, is its effect. The estate thus blended will give the precise time of enjoyment, originally limited by the more remote of the two estates, and no more; for the estate in which the merger takes place is not enlarged by the accession of the preceding estate. Ib. Et vid. Smith v. Lord Camelford. 2 Ves. jun. 714. Webb v. Russell, 3 T. R. 394. Brooke. Exting. pl. 50. Saund. 387. Salk. 326. The circumstances which must concur in order to accomplish the operation of the law of mer-, ger, are thus enumerated by Mr. Preston, in his very valuable and masterly treatise on this subject. Ist. Two or more estates must meet in the same person, in the same lands, &c. or in the same part of the same lands, &c. A mere right or title will not suffice Pauling and Hardy, Skin. 3. 62. Com. Dig Surr. 3 Prest. Conv. 50. For instances in which the question may arise, whether the party has one estate, or several estates, see Rosse's case, 5 Co. 13. Ross v. Atwood, Cro. Eliz. 401. Rosse v. Ardwick, Goldb. 187. Moor. 398. 15 Vin. 366. S C. Bowles v. Poor, Cro. Jac. 282. See also ante 182 b. vol. 1. p. 744. n. (N); vol. 2. p. 144. n. (P). Mandeville's case, ante, 26 b. vol. 1. p. 544. 3 Prest. Conv. 58-85. That the determination or acquisition of a third or intermediate estate may be the cause of merger, as between estates, kept distinct by means of the intermediate estate, see Bates's case, 1 Salk. 254. Ld. Raym. 326. Duncomb and Duncomb, 2 Lev 437 3 Prest. Conv. 85-87.143. Infra, n. (O); and that by the descent of a portion of the ultimate remainder in fee, a particular estate in that portion may be merged; see Crump, d.. Woolley v. Norwood, 7 Taunt, 362. 2d. The more remotę estate must be the next vested estate in remainder or reversion, without any intervening vested estate; and also without any intervening interest by way of contingent remainder, created in the same instant of time, or by the same act which gives origin to the other estates. See Bro. Lease, 63. Duncomb v Duncomb. 3 Lev. 437 Bates's case, 1 Salk. 251. 4 Leon. 9. 33 Eliz. Brooke. Exting. 54 Whitchurch and Whitchurch, 2 P. Wms. 286. Scott and Fenhoulet, Bro. C. C. 69. But although a contingent remainder depending on the former of two estates vested in the same person, will suspend the absolute union of these estates, if created by the same conveyance; yet this protection from mer ger will continue only till the owner of these estate has done some act, by which he confounds the first of his estates in the more remote estate, and by that means destroys the contingent remainder. Per Hale, Purefoy v. Rogers, 2 Saund. 380. And even while the intervening remainder is in contingency, the several estates belonging to the same person will 1 |