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 sur- What estate renders must be in possession; and the person to necessary. whom the surrender is made must have a greater estate, immediately in remainder or reversion, in which the estate surrendered may merge. 600, 601. 10. Thus if a lessee for life or years be ousted by Perk. $ 599, a 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. It follows that a lease for years, to commence at a future day, cannot be surrendered; for there is nothing in the lessee, in possession, before the commencement Tit. 8. c. 1. § 10. of the lease, nor has the lessor a reversion before that time. 11. To make a surrender good, there must be a Plowd. 541. privity of estate between the surrenderor and the surrenderee. Thus if a tenant for thirty years makes a lease for ten years, and the lessor and lessee join in a surrender to the person in reversion in fee, the surrender is good for both the estates; yet the lessee for ten years could not surrender by himself for want of privity; but when the other joined with him, his surrender shall be taken in law to precede, and the surrender of the lessee for ten years, to follow; so that the same shall be good. 12 Mod. 79. 12. An estate at will is not surrenderable, because Cro. Eliz. 156. it is at the will of both parties; and either party may determine his will, without the formality of a surrender. 13. It was formerly doubted whether a lessee for years could surrender to a person who had the reversion only for years; but this point appears to have been settled by a determination in 35 Eliz., in which Hughes v. Ab. Tit. Lease, § 2. Stephens v. it was laid down, 1. That if the term in reversion be Cro. Eliz. 302. greater than the term in possession, the lesser will Poph. 31. Bac. merge in the greater; as ten years may be surrendered and merge in twelve or fourteen years. 11. That though the reversion be for a less number of years, yet the surrender will be good, and the first term merged: as if one were lessee for twenty years, and the reversion expectant thereon was granted to another for a year, who granted it over to the lessee for twenty years, this would operate as a surrender of the twenty years term, as if he had taken a new lease from his lessor for one year: for the reversionary interest coming to the possession drowns it; and the number of years is not material; for as he may surrender to him who hath the reversion in fee, so he may to him who hath the reversion for any less term. And therefore Popham held, that where lessee for twenty years makes a lease for ten years, and the lessee for ten years surrenders to his lessor, viz. the lessee for twenty years, this is good; and the lessor shall have so many of the years as were then to come of his former term of twenty years; that is, as it seems, so many years as were to come of his reversion shall now be changed into possession. And he held further, that if such lessee for twenty years had made such lease for ten years, and then granted over the reversion for ten years only, viz., no longer than the lease for ten years was to continue, and such lessee for ten years had attorned, then the grantee of the reversion should have the rent and services, and the grantor the residue of the twenty years. And that the lessee for ten years might surrender to the grantee of the reversion for ten years; and he thereby would have the possession for so many years as were then to come of his reversion. And if he had a less term in the reversion, than the lessee himself had in the possession, it should go to the benefit of the first termor for twenty years, who was his grantor: for the term in possession was quite gone, and drowned in the reversion, to the benefit of those who had the reversion thereupon, having regard to their estate in reversion, and not otherwise. 14. An assignment is properly a transfer of some Assignment. particular estate or interest in lands, but is usually applied to the transfer of a term for years. It differs from a derivative lease in this circumstance, that by such a lease the lessor conveys an interest less than his own, reserving to himself a reversion; whereas in an assignment, the assignor parts with his whole interest in the thing assigned, and puts the assignee in his place. 15. Where a person transfers all his term to another, reserving rent to himself; this is not an assignment but an underlease. 405. 16. A. having a term for years, whereof one year Pulteney v. and three quarters was to come, agreed with B. that Holmes, Stra. he should have the premises for the remainder of the term, paying the same rent to A. as was reserved upon the original lease. It was held, that this was an underlease, and not an assignment. 17. The proper technical words of an assignment are, assign, transfer, and set over. But the words give, grant, bargain, and sell, or any other words which show the intent of the parties to make a complete transfer, will amount to an assignment. Palmer v. 187. n. Edwards, Doug. 18. No consideration is necessary to support an 1 Mod. 263. assignment of a term for years; for the tenure, attendance, and subjection to forfeiture, as also the payment of the rent, if there be any, is sufficient to vest the term in the assignee. deed or note in 19. Previous to the statute of frauds and perjuries, Must be by all chattels real might have been assigned by parol writing. only. But it is enacted by that statute that all assign- Ante, c. 2. ments of leases or terms for years, shall be by deed, Drakeford, or note in writing, signed by the party assigning, or 1 Bos. & Pul his agent, thereunto lawfully authorized by writing. Hodges v. N. R. 270. 20. Every estate and interest in lands and tene- What may be assigned, Perk. 91. 1 Inst. 46. b. Lit. § 347. ments may be assigned; as also every present and certain estate or interest in incorporeal hereditaments, such as rents, advowsons, &c., even though the interest be future, as a term for years to commence at a subsequent period, yet it may be assigned; for the interest is vested in præsenti, though only to take effect in futuro. 21. It should however be observed, that no right of entry or re-entry can be assigned; so that if a person be disseised, and afterwards assign over his right to another, before he has entered on the disseisor, such 1 Inst. 214. a. assignment is void. Lord Coke says, this doctrine is founded on a principle of the common law, that nothing in action, entry, or re-entry, can be granted over. For, under colour thereof, pretended titles might be granted to great men, whereby right might be trodden down, and the weak oppressed. But choses in action are assignable in equity, as will be shown in the next chapter. Warren v. Arthur, 2 Mod. 317. 22. A naked power is not assignable: where it is coupled with an interest, it may be assigned; as where a lease was made, with power to the lessor, his heirs and assigns, to cut down and sell trees; this power was held to be assignable. Ex. Dev. 527.. 23. It is said by Mr. Fearne that an assignment of a contingent interest, even in lands of inheritance, for a valuable consideration, may be carried into execution by the Court of Chancery; upon the ground of its being such a contract or agreement as the Court may think fit to decree a specific performance of. Defeasance. 24. A defeasance is a collateral deed, made at the same time with a feoffment or grant, containing certain conditions, upon the performance of which the estate created by such feoffment or grant may be defeated. It differed from a condition in this respect, that a condition is inserted in the deed by which the estate is created. A defeasance is a separate deed, executed at the same time. 25. A defeasance, executed at the same time with 1 Inst. 236. b. a feoffment, was considered as a part of it, and therefore allowed; but no subsequent secret revocation of a solemn conveyance, executed by livery of seisin, was formerly permitted. As to things that were merely Id. 237. a. executory, or to be completed by matter subsequent, as rents, conditions, warranties, &c., they were always liable to be avoided by a defeasance, made subsequent to the time of their creation. 26. A defeasance must be made in eodem modo, Touch, 397. and by matter as high as the thing to be defeated: so that if the one be by deed, the other must be also. Where the defeasance recites the deed which it is meant to defeat, as it always does, it must recite it truly. A BOND or obligation is a deed poll whereby the Bond. |