1805. ROE, on the Demise of the Earl of BERKELEY, against Monday, Jan. 28th. celling in fact THIS ejectment was brought for a messuage and appurte. The mere caunances in the parish of St. George, Hanover Square, of a lease is in the county of Middlesex; and at the trial before Law. rence, J. at the sittings at Westminster, a special verdict was found, stating in substance as follows : not a surrender thereby granted of the term within the statute of frauds, which requires to be by deed such surrender law. Nor is a deration of the surrender of a prior lease of misses, a surrender by deed ing of such the same pre John, Lord Berkeley, of Stratton, being seised in fee of the premisses in question, by indenture dated the 19th of May, 1743, demised the same to J. Lumley, his executors, &c. or note in writing, or by act for a term of 98 years from Lady-day, 1741, at a yearly or operation of rent (after the first two years of the term) of 321. payable recital in a sequarterly on the four most usual feast days, free of all cond lease, that it was granted taxes, &c. J. Lumley at the same time executed a coun- in part consiof the indenture, and delivered it to Lord Berkeley. terpart dera By virtue of this demise, J. Lumley entered into and was possessed of the premisses; and afterwards assigned the term for a valuable consideration to the Archbishop, the defendant. John Lord Berkeley, by his will dated the 21st of May, 1772, devised the reversion of the premisses to the use of Mrs. Anne Egerton and her assigns for life, or till she should marry; and after several intermediate remainders, remainder to the use of the lessor of the plaintiff for life, with other remainders over. The will also contained a power to the several tenants for life, when they should be respectively in the actual possession of the messuages, lands, &c. devised to them, to lease the same by indenture to any or note in writ. prior lease, is not purporting in the terms of a surrender or yielding up of it to be of itself the interest; though in some insta instances the second lease der of such prior term by operation of law; and this, even though the second lease be voidable, if it be not merely void. But where tenant for life with a special power of leasing, reserving the best reut, in consideration (as recited) of the surrender of a prior term of 99 years (of which above 50 were unexpired) and certain charges to be incurred by the tenants for repairs and improvements, &c. granted to him a new lease of the premisses for 99 years by virtue of the power reserved to her, or any other power vested in, or in anywise belonging to her; which new lease was void by the power for want of reserving the best rent: held, That the second lease, which was intended and expressly declared to be granted by virtue of and under the power, and being apparently not intended by the parties to be carved out of the estate for life of the lessor, being void under the power, should not operate in law as a surrender of the prior term, as passing an interest out of the life estate of the granter, contrary to the manifest intent of the parties; and, consequently, that the prior term, though the indenture of lease were in fact cancelled and delivered up when the new lease was granted, might be set up by the tenant of the premisses in bar to an ejectment by the remainder-man after the death of tenant for life, however such second lease might have operated by way of estoppel as against the lessor during her life. * [ 87 ] person 1805. ROE dem. person who should be willing to build or to repair any of the same messuages, for any term of years not exceeding 99 years in possession; but not in reversion or by way of BERKELEY future interest, so as upon every such lease there should be against Abp. of YoRz. reserved the best and most improved yearly rent that at the time of making thereof could be reasonably had or gotten for the same, without taking any fine or income for making any such lease; and so as in every such lease there should be contained the like clauses, covenants, and agreements, as were usual in building or repairing leases. John Lord Berkeley died without altering or revoking his will; and on the 14th of May, 1784, Mrs. Anne Egerton, being by virtue of the said devise seised for life of the reversion and freehold of the premisses in question, executed a certain indenture of that date, whereby it was witnessed, that for and in consideration of the surrender of the said first-mentioned indenture; and also in consideration of the great charges and expences which the said Archbishop had been and might be at in repairing and improving the said premisses, and of the rent and covenants therein reserved and contain[88] ed, and thereby covenanted to be paid and performed on the part of the said Archbishop, his executors, &c, she the said Anne Egerton, by virtue and in execution of the power and authority therein stated to be given and reserved to her in and by the said will of John Lord Berkeley, of Stratton, deceased, or by any other power in the said Anne vested, or to her in anywise belonging, demised the said premisses to the said Archbishop, his executors, &c. habendum, &c. from Lady-day then last, for the term of 99 years, at the yearly rent of 361. 4s. payable quarterly, and clear of all taxes, &c. payable to her for her life; and after her decease to those in remainder during the term. The Archbishop accepted the last-mentioned lease, and executed a counterpart thereof by signing and sealing the same; and at the time of the execution of the said last-mentioned lease, the said first-mentioned lease, and the counterpart thereof were cancelled and exchanged; i. e. the original lease was cancelled and delivered by the Archbishop to Mrs. Anne Egerton, and now remains cancelled in the hands of the said Earl; and the counterpart thereof was cancelled and delivered by Mrs. Anne Egerton to, and now remains cancelled In in the hands of the Archbishop. The jury then found that This case was argued in Trinity term last by Freere for the plaintiff, and Holroyd for the defendant; and again in Michaelmas term last by Bayley, Serjt. for the plaintiff, and Gibbs for the defendant.. 1805. ROE dem. Earl of BBRKELEY against Abp. of Yoak. Arguments for the plaintiff. The second lease having [89] been granted by Mrs. Egerton, the tenant for life, in consideration of the surrender of the first, and the second lease being void under the power for want of reserving the best rent, the quetion is, Whether, after the death of Mrs. Egerton, the original lease can be considered as subsisting, and be set up again against the remainder-man? or whether it must not be considered as destroyed by what took place when the new lease was granted? First, There was a legal and valid surrender of the original lease in fact, and not contravening the statute of frauds (a). Secondly, It was surrendered in law. 1. There was a direct cancellation of it in fact. If an action had been brought on it, there must either have been a profert, or an excuse for not making one, by stating that it had been cancelled and delivered up by mistake. But there could have been no profert, because it was cancelled and delivered up: and no such excuse could have been made, because it might have been shewn that the Archbishop gave up the first lease with full notice that Mrs. Egerton had only a power to lease reserving the best rent, and that she had not imposed upon him. The only cases where cancellation has been holden not to avoid an instrument, have 'been where it has been done by accident, and not by design, as here. Here there was the animu. cancellandi. Even before the statute of frauds, there could be no surrender of a thing lying in grant,except by deed (b), yet it was always considered (a) 29 Car. 2, C. ́3, s. 3. (8) Vid. 4. Bac. Abr. tit. Leases, T. p. 21%. VOL. VI. F that 1805. ROE dem. that the cancelling of a lease of a thing lying in grant, was evidence of a surrender. So the production of a cancelled instrument of a thing lying in livery must be evidence of a sur render since the statute. And this is not contradicted by the Abp. of York. case of Magennis v. M'Culloch (a), because equity would set [90]* it up again. [Lord Ellenborough, C. J. The opinion of Earl of BERKELEY against [91] Lord C. B. Gilbert in that case was express: That since the statute, a lease for years could not be surrendered by cancelling the indenture without writing:-and that was an opinion judicially delivered by him, subsequent probably to the treatise written by him. There is another case of Leech v. Leech, 2 Chan. Rep. 100 (b), where an estate before granted by deed was holden not to be divested by cancelling the instrument.] At any rate, the second lease, reciting that the first was surrendered, is a "note in writing, signed by the party," within the statute; and that agrees with Lord C. B. Gilbert's opinion in Magennis v. McCulloch. Before the statute, such an admission by word of mouth would have been sufficient to operate as a surrender. Any words tantamount to a surrender were sufficient. 2 Rol. Abr. 497, 8. Chamberlain's case, 40 Ed. 3. 23, 24 (c), and Sleigh v. Bateman (d). The statute of frauds made no alteration but in the evidence; and whatever words were sufficient before, will, if reduced to writing, still operate as a surrender since the sta tute. In Farmer v. Rogers (e), where this doctrine was confirmed, the indorsement on the mortgage deed did not purport to be a surrender, but only a receipt for money; and yet as coupled with the proviso in the deed that the term should cease on payment of the mortgage money, it shewed the intention of the parties, and was holden to be a surren der. Secondly, The acceptance of the second lease was a surrender in law of the first. Such is the legal effect of a new lease, if it be to operate during any part of the originai term; with only two exceptions; one in case of fraud, as in Davison v. Stanley (f), where a lessor having, while seised in (a) Gilb. Eq. Rep. 236. (b) In Chancery, 26 Car. 2. "The Court declared, though the deed appeared cancelled, yet it was a good deed; and that the cancelling thereof dit not divest the estate of the trustces thevein named; and that the twist thereby created, ought to be performed." (c) Cited 1 Leon. 285. (f) 4 Burr. 2210. (e) 2 Wils. 26, fee, 1805. RoE dem. Earl of BERKELEY against fee, made a good lease of 99 years to his tenant: after which, having settled his estate, and taken back only an estate for life with a certain power of leasing, he granted a new lease to the same tenant for 99 years, not according to the power, without notice to him of his limited authority: Abp. of Yoak and this was holden to be no surrender of the former lease, on the express ground of fraud upon the tenant. The other exception is, where the second lease is wholly void ab initio; in which case it is said in Shepherd's Touchstone, 301, that perhaps it shall not be construed into a surrender of the first. But if the second lease be good to pass any interest at all, though only for a part of the first term, it operates as a surrender of the whole; for there cannot be two concurrent terms of the same premisses in the same person. Shep.. Touch. 300. Lane's case (a). Ive's case (b). Thompson v. Trafford (c). Fulmerston v. Steward (d); and Willis v. Whitewood (e). The true reason of which seems to be, that otherwise the same person would be both landlord and tenant, and the tenant would be his own reversioner of the shortest term, and be entitled to receive rent of himself during that term. Besides which, the very taking of the second lease is an admission by the tenant that there is an ability in the lessor to demise the premisses during the period of the first lease, which is inconsistent with it. Then the surrender of the first lease, having been once good, must be good for ever. It cannot be said that the second lease was wholly void ab initio; for at the time of making it, Mrs. Egerton had an estate for life in the premisses, which gave her an absolute power to lease for her own life; and she had a further power of leasing, on certain conditions, to bind those in remainder for 99 years. The second lease then was good against her during her life; and the question is, Whether it were good at the time it was granted? and not What effect will it have now? If she had survived the term of the first lease, the Archbishop would have been entitled to hold during her life under the second lease; and she would have been entitled to the increased rent. It cannot then be avoided ab initio, but, like a lease for years, by one who is (a) 2 Rep. 17. Dy. 101. b. S. C. (b) Rep. 11. b. (c) Poph. 9. (d) Plowd. 102, 7. only [92] |