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56. A confirmation does not strengthen a void 1 Inst. 295 b. estate. Confirmatio est nulla, ubi donum precedens est invalidum, et ubi donatio nulla est, nec valebit confirmatio. For a confirmation may make a voidable or defeazible estate good; but cannot work upon an estate that is void in law.

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Surrender.

A

SECTION 1.

SURRENDER, sursum redditio, is of a nature directly opposite to a release: for as that operates by the greater estate descending upon the less; a surrender is the falling of a less estate into a greater, 1 Inst. 3376. by deed. Lord Coke defines it to be a yielding up of an estate for life or years to him that hath an immediate estate in reversion or remainder, wherein the estate for life or years may drown, by mutual agreement between them.

Thompson v.
Leach,

2 Salk. 618.
Show. Parl.

Ca. 150.

ante, c, 1. $29.

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2. A surrender immediately devests the estate out of the surrenderor, and vests it in the surenderee; 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 is a contract, and there must be actus contra actum, or a mutual consent, yet that consent is implied; for a gift imports a benefit, and an assumpsit to take a benefit may well be presumed.

3. Though an estate once surrendered is merged and destroyed, as between the surrenderor and surrenderee; yet it is not so as to strangers, whose rights are preserved. Thus if a tenant for life grants a Touch. 301. rent-charge, and after surrenders his estate, the rentcharge shall continue. So if a lessee for life makes a lease for years, rendering rent, and afterwards surrenders his estate, the lease for years shall continue, but the surrenderee will not have the rent upon the lease for years.

4. The technical and proper words of this conveyance 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. Thus if a lessee for years remise, release, discharge, Perk. § 607. and for ever quit claim his lessor, all his right, title,

or interest in or to such lands; it will amount to a Smith v. surrender. So if a lessee for life leases to the lessor, 1 Term R. Mappleback, for the life of the lessee, this is a surrender.

441.

Deed or

Note in

1 Inst. 338.a.

5. Formerly a surrender of lands might have been Must be by made without deed or livery; but as to things that lay in grant, whereof a particular estate could not Writing. commence without deed, they could only be surrendered by deed. An estate by the curtesy or in dower in an advowson or rent, though it began without deed, could not be surrendered without deed. So if a lease for life were made of lands, remainder for life; though the remainder began without deed, yet because remainders and reversions lie in grant, the remainder could not be surrendered without deed.

6. A deed is still necessary to create a surrender in all cases where it was formerly required. And now, by the statute of frauds, no surrender is valid, unless it ante, c. 3. § 2. be by deed or note in writing signed by the party so

Farmer v.

Rogers,

2 Wils. R.

27.

Maginis v.

Macullock,

surrendering, or their agents, thereunto lawfully authorized by writing, or by act and operation of law.

7. It was held by Lord C. B. Gilbert, that upon Gilb. R. 236. the true construction of this statute, a lease for years could not 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. 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 under the hand of the party. The words, by act and operation of law," were to be construed a surrender in law, by the taking a new lease, which being in writing, was of equal notoriety with a surrender in writing.

Roe v.
Archb. of
York,

6 East, 86.

Who may surrender.

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8. All persons capable of alienating lands, may surrender any particular interest therein. By the statute 29 Geo. II. c. 31. it is enacted, that in all cases where any person under the age of 21 years, or any lunatic or feme covert, shall become interested in, or entitled to any lease or leases for life or years; it shall and may be lawful for such person under the age of 21 years, or for his or her guardian or guardians, or other person or persons, on his or their behalf; and for such lunatic, or his or her guardian or guardians, committee or committees of the estate, or other person on his or her behalf; and for such feme covert, or any other person or persons on her behalf; to apply to the Court of Chancery or Exchequer, the Courts of Equity of the counties palatine of Chester, Lancaster, and Durham, or the Courts

of Great Session of the principality of Wales, respectively, by petition or motion in a summary way; and by the order and direction of the said Courts respectively made, upon hearing all parties concerned, such person under the age of 21 years, and such lunatic, or person or persons appointed by the said Courts respectively, and also such feme coverts, by deed or deeds only, without levying any fine, shall and may be enabled from time to time to surrender such lease or leases, and accept and take in the name and for the benefit of such person under the age of 21 years, or lunatic, or feme covert, one or more new lease or leases of the premises comprised in such lease or leases, surrendered by this act; for and during such number of lives, or for such term or terms of years absolute, as was or were mentioned or contained in such lease or leases so surrendered, at the making thereof respectively, or otherwise as the said Courts shall respectively direct.

9. To make a surrender good, the person who What Estate surrenders must be in possession, and the

person to

whom the surrender is made must have a greater

estate, immediately in remainder or reversion, in which the estate surrendered may merge.

necessary.

10. If a lessee for life or years be ousted by a Perk. § 599. stranger, and afterwards surrenders to his lessor, it

will be void; because he had but a right at the time of the surrender. So if a woman has a title to dower, and surrenders to the person against whom she ought to have dower, it is void for the same reason.

600.

11. A lease for years to commence at a future day Id. 601. cannot be surrendered, for there is nothing in the lessee, in possession, before the commencement of the lease; nor has the lessor a reversion before that time.

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