great weight by Baron Parke in Lyon v. Reed, justifies an examination of the cases and books which antedate that act.

19

In such authorities little is said about the testimony of the parties as to their intentions or agreements, but this is fully accounted for by the fact that parties were disqualified to testify, and also by the brief character of the statements in the old books. The incoherence and obscurity of construction common in those works often make it difficult to derive from them the rules which they were intended to expound. The writer feels that the matters set forth in the note below 20 offer ade

19 See WIGMORE, EVIDENCE, 2 ed., § 577; POWELL, LAW OF EVIDENCE, 5 ed., 35; BENTHAM, A TREATISE ON JUDICIAL EVIDENCE, Dumont's ed., 248. See also 14 & 15 VICT., C. 99.

20 The following authorities perhaps are not in accord with each other in all details, but they substantially agree on the point which is of importance at this place, i.e., that emphasis is to be placed on the element of intent.

The following excerpts from Viner's Abridgment seem to be translations from Rolle's Abridgment, tit. " Surrender," F.:

"If a lessee gives license to the lessor to make a feoffment of the land to a stranger, this is not any surrender, but only a grant of his term for a little time, for the license shews that he does not intend to pass his estate." VIN. ABR., "Surrender," F. 3 (1490).

"If lessee for years agrees that his lessor shall make a feoffment to a stranger, it seems that this is a surrender; for it cannot be intended but that he intended that the feoffee should have the land in demesne." Ibid., F. 2 (1538).

"If a lessee for years accepts a new lease to commence presently, this is a surrender; for by this he admits the lessor to have sufficient power to make this new lease, the which he cannot do without a surrender." Ibid., F. 9 (1546).

In Harris and Wing's Case, 3 Leon. 242 (1590), it was held that a lease of the king does not operate as a surrender of former leases to the same persons unless full disclosures concerning them are before the king when the subsequent lease is made.

The case of Ive v. Sams, Cro. Eliz. 521, 5 Co. Rep. 11a (1596), held that the acceptance of a subsequent lease to begin within the time of the former caused a surrender in law "because by his acceptance he allows the lessor able to lett the land during the other lease." It is noticeable that nothing is said in this case to sustain the idea that the surrender was a consequence of any estoppel in pais.

Gybson v. Searl, Cro. Jac. 176 (1608), concerns a demise followed by a grant of the bailywick of the same manor to the lessee. "It was argued divers times at the bar, and then at the bench: and ALL THE COURT resolved unanimously, that it was not any surrender; for that ought to be the intent of the parties; and it appears that there was not any intent of the parties."

In Bacon v. Waller, 1 Rolle, 388, 3 Bulst. 203 (1617), the effect of a re-demise by a lessee to his lessor came before the King's Bench, and it was held that this was no surrender. If the rule at the time of the case had been that the acts of the parties control regardless of intent, it would seem that that act of the lessee

quate support for the statement that before the Statute of Frauds a surrender by express oral agreement was possible, and that a surrender was also accomplished where, by some act or acts 'inconsistent with the continuation of the particular estate, the parties had shown an intention to surrender. The fact that such result may have been necessitated by the disqualification of the parties as witnesses in some cases does not affect the conclusion; it still remains that the courts declared in favor of surrenders in the absence of direct evidence of express agreement by the parties on such result.

Emphasis on the quality of the acts as showing intent and therefore accomplishing a surrender in law is also seen in the cases which were decided under the Statute of Frauds and before the case of Lyon v. Reed.21 It is thought that an examination of some of these will prove illuminating as a preface to discussion of that case:

In Smith v. Mapleback (1786) 22 an assignee of the original lessee entered into an agreement that the lessor should have the premises" as mentioned in the lease" and should annually pay to the assignee a certain sum over and above the rent. It was held that this sum was not rent, that its payment was not enforcible by distress and that the original term was surrendered. Ashurst, J., seems to have been anxious to find and enforce what the parties "intended," and Buller, J., said, "I am satisfied that this was intended to be a surrender of the whole term."

In the case of Roe v. Archbishop of York (1805),23 the lessee of a term for ninety-nine years accepted a new lease for a term

in giving possession back to his landlord would have resulted in ending the original term. The correctness of the result to the contrary seems manifest, however, if the acts of the parties are regarded merely as evidence of intention capable of being overcome by more definite evidence, rather than technical acts to be followed by consequences both unforeseen and undesired by the parties.

But in the case of Loyd v. Langford, 2 Mod. 74 (1671), a re-demise for a full term was held a surrender. The court emphasized, however, that the redemise was not upon condition, i.e., that the formal act of entering into the redemise did not per se cut off all interest of the lessee. The surrender was accomplished because of the nature of the intent of the parties, as shown by the fact that no condition was included in the terms of the re-demise.

to begin immediately. This last lease was void because not within the power granted to the lessor. It might have been used to estop the latter personally, so long as her interest continued; but Lord Ellenborough, C. J., held this to be no surrender. He examined some of the older cases and concluded that his decision must depend upon the intent of the parties. He was careful to point out that the archbishop "meant to accept," in lieu of his prior lease, only a lease which would sustain him in an equally advantageous position.24

In Stone v. Whiting (1817) 25 Holroyd, J., said, "In this case there was an agreement that one should be substituted for the other as tenant, and I am inclined to think, that this constituted a surrender in law." Standing alone this remark is, no doubt, too extreme, and fully merits the doubt with which Baron Parke refers to this case in Lyon v. Reed.26 It should be noticed, however, that more appears in the case than was included in the learned judge's statement, i.e., that the tenant had let the premises to a third person from the ensuing Lady-day, and that the tenant and such third person went to the lessor, and that he agreed to take the third person as his tenant from that time and to discharge the lessee from further liability. These acts seem to be ample corroboration of the oral evidence as to the intent of the parties, and would fully support the conclusion of the court. Broken into its component parts this transaction is equivalent to a transfer of possession by the tenant to the landlord and then by the landlord to the third person. This evidence added to the oral evidence of intention to terminate the obligations of the lease has repeatedly been held sufficient to effect a surrender.27

The facts of the much-discussed case of Thomas v. Cook 28 24 At p. 107. See note 63, infra.

25 2 Starkie, 235, 236.

26 See further reference to this case in the discussion of Lyon v. Reed in the text following. The statement of Holroyd, J., would place this case within class (a), supra, while the actual facts place it clearly within class (d).

And it

27 See TIFFANY, LANDLORD AND TENANT, 1328, 1343; 34 CYC. 1370. has been held that where this substitution of tenants is not intended to operate as a surrender, it does not have such effect. Bourdereaux v. Walker, 78 Ill. App. 63 (1898). See also Holman v. De Lin-River Finley Co., 30 Ore. 428, 47 Pac. 708 (1897).

28 2 Starkie, 408, 2 B. & Ald. 119, 121 (1818).

are that the lessee sub-let and the landlord, after accepting the sub-lessee as his tenant and distraining against him, sued the lessee for rent alleged to have accrued thereafter. It was held that the acts and words of the parties proved a surrender by operation of law. In distinguishing the case of Mollet v. Brayne," Holroyd, J., said, “ There was only a parol surrender, and no circumstance existed in that case which could constitute a surrender by act and operation of law. But in this case, there is not merely a declaration by the plaintiff, that he will no longer consider Cook as his tenant, but there is also the acceptance by him of another person as the tenant, and that acceptance is assented to by Cook." It appears thus that the court merely held that the evidence of oral agreement to discontinue the obligation of the lease was sufficiently confirmed by the acts of the parties to be enforced as a surrender by operation of law.

There are some modern authorities which indicate that the true rule ignores the intent of the parties and causes surrenders to follow as inflexible, unforeseen, and perhaps undesired consequences of certain acts.30 These authorities likewise seem rigidly to require certain stereotyped formalities to constitute a surrender by operation of law, despite the fact that the intention of the parties is clearly evidenced otherwise. The support for these ideas comes directly or indirectly from Lyon v. Reed, which was decided in the Exchequer in 1844. In that case the lessee made a sub-lease. The sub-lessee entered, and thereafter a later lease to the original lessee was found among the papers of the lessor. The sub-lessee had been in possession constantly from the date of the sub-lease until the question of the surrender of the lease of his lessor arose. The court held that there was no surrender by operation of law. This result directs notice to the

29 2 Campb. 103 (1809).

30 TIFFANY, LANDLORD AND TENANT, 1322, 1325; TAYLOR, LANDLORD AND TENANT, 9 ed., § 507; 24 CYC. 1368; 16 R. C. L., § 672.

In Brown v. Cairns, 107 Ia. 727, 735, 77 N. W. 478, 481 (1898), the court, without referring to Lyon v. Reed, supra, uses the words, "Surrender... takes place independently of, and even in spite of, the intention of the parties." The similarity of these words to those used in the case last cited seems too close to be the result of chance.

31 See TIFFANY, LANDLORD AND TENANT, 1315; 24 Cyc. 1367; 16 R. C. L. 11531154; TIFFANY, REAL PROPERTY, 2 ed., 180.

comparative weakness, as evidence of intention to surrender, of the act of giving to the landlord the document under which a tenancy exists, when other facts keep that particular thing from being a symbol of possession. The result would logically have been the same if the thing handed over had been a key or similar article. It is important that in the ordinary case the landlord is entitled to possession after surrender, while in the case before us the lessee was not in a position to turn over possession; this greatly weakens the argument for surrender here.32 The result reached in this case, therefore, can be readily sustained on the theory suggested in class (e), supra. The act of turning over the lease, if indeed it appears that such was voluntarily done, is robbed of all probative force as corroborating an intention to surrender, by the retention of the possession of the land by the sub-lessee who claims under the lease.

In reaching his conclusion in Lyon v. Reed, Baron Parke suggests that "there can be no question of intention." He adds that a surrender in law is accomplished "in spite of the intention of the parties," and that "these principles are all clearly deducible from the cases and doctrine laid down in Rolle, and collected in Viner's Abridgment, tit. 'Surrender,' F. and G., and in Comyns' Dig., tit. 'Surrender,' T. and I. 2, and the authorities there referred to." Reference to the material cited furnishes practically nothing but a review of the decisions and other writings which are cited above in note 20. To them may be added from Viner's Abridgment a general statement that, "Three things are incident to a surrender. 1. An actual possession in him who surrenders. 2. Consent and agreement between the parties. This statement might have been expected to give

19 34

32 In Bennett's Case, 2 Rolle, 20 (1618), an oral express surrender accompanied by the delivery of the lease, was carried out by a life tenant in remainder, upon the land. The court held that the remainder could only be surrendered by deed to "manifest" the transfer, but they added it would be otherwise if the tenant for life in possession joined in the surrender.

For a recent case falling into class (e), supra, see Brown v. Linn Woolen Co., 114 Me. 266, 95 Atl. 1037 (1915).

33 13 M. & W. 285, 306, 307 (1844).

34 VIN. ABR., "Surrender," G., pl. 40, p. 138. A similar statement appears in the same work and title at A. 2, pl. 8, p. 122, where surrender is said to be "actus contra actum, or a mutual consent, yet that mutual consent is implied."