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CHAPTER XXXVIII.

SURRENDERS.

(See Re-Conveyances.)

Surrender of a Mortgage-term to merge in the In

heritance on paying off the Mortgage-money.t This indenture, &c., between (mortgagee) of the one part, and (mortgagor) of the other part. [Recite the mortgage creating the term.] And whereas the said Recital. sum of L. still remains due and owing upon the said recited security, all interest for the same having been paid up to the day of the date of these presents. And whereas the said (mortgagor) hath requested the said (mortgagee) to accept payment of the said sum of L. so due and owing as aforesaid, and to assign and surrender the said mortgage term created by the said in part recited indenture of, &c., to the intent that the same may become merged and extinguished in the freehold and inheritance of the said premises. Now, this indenture witnesseth, that, in consideration of the sum of Witnesseth.

in hand, &c., in full satisfaction and discharge of all principal money and interest now due and owing upon or by virtue of the said recited security, the receipt, &c., he, the said (mortgagee,) at the request and by the desire of the said (mortgagor, † For the surrender of a life estate, see p. 380.

testified, &c., hath assigned,“ surrendered, and yield-
ed up, and, &c., unto the said (mortgagor,) his heirs,
[executors, administrators,] and assigns, all and sin-
gular the said messuage, &c., hereinbefore particu-
larly described, and which, in and by the said in-
denture of, &c., were granted and demised unto the
said (mortgagee,) his executors, administrators, and
assigns, for the term of five hundred years, as here-
inbefore mentioned, with the several rights, mem-
bers, and appurtenances, and all the estate, right,
title, term of years yet to come and unexpired, of
him, the said (mortgagee,) in and to the said pre-
mises ; to the intent that the now residue of the said
term of five hundred years may be merged and ex-
tinguished in theb reversion, freehold, and inherit.
ance of the same premises, now vested in the said
(mortgagor,) or otherwise cease, determine, and be-
come void, to all intents and purposes whatsoever.
[Add covenant from mortgagee that he had not in-
cumbered. See p. 89.] In witness, &c.

Recital.

Surrender of a term by Indorsement. . This indenture, made, &c., between, &c. Whereas, &c., [recitals,] and whereas the said A. B. hath requested the said C. D. to surrender to him the said messuage, &c., for all the residue and remainder of the said term of years, by the within-written indenture granted therein, to the intent that the same residue may merge and be extinguished in the freehold and inheritance of and in the same premises, which he the said C. D. hath consented and agreed to do in manner hereinafter mentioned. Now, this indenture witnesseth, that, in pursuance of the said recited agreement in this behalf, and in consideration

Witnessing) part.

For the reason why the word assign is used, see p. 391. • If one term is merged in another, the conclusion from this place would be," said term of years, created by the said in part recited indenture of immediately expec. tant and reversionary thereon, or otherwise," &c.

of the sum of L. of lawful, &c., to the said C. D. paid, &c., the receipt, &c., he the said C. D. hath assigned, surrendered, and yielded up, and, &c., unto the said A. B., his heirs, executors, administrators, and assigns, all those the messuages, lands, and premises within described, with their several rights, members, and appurtenances, and all the estate, kc.; to the intent and purpose that the residue of the said term of

years therein may be merged and extinguished in the reversion, freehold, and inheritance of the same hereditaments and premises. In witness, &c.

* OBSERVATIONS ON SURRENDERS.

A surrender is defined by Sir Edward Coke to be “ a yielding up of an estate for life or years to him who hath the immediate estate in reversion or remainder, wherein the estate for life or years may drown by mutual consent.”_Co. Litt. 337 b.

From Sir Edward Coke's definition, it will appear that a deed, or other written instrument, though framed as a surrender, will not have that operation, unless the estate of the person to whom the surrender is made has the next immediate estate in reversion or remainder to the one proposed to be surrendered ; for if there should be any intervening vested estate, whether chattel or freehold, the instrument will be entirely inoperative as a surrender or destruction of the estate, though it may take effect as a conveyance or assignment, if executed in the manner required for passing such estate ;' and, on the other hand, an instrument, purporting to be a conveyance with the intention of preserving the estate, will have the operation of a surrender, in those cases in which a surrender, if made, would have taken effect.

In considering how far a defective surrender may

* Doe v. Pickard, 1 Williams Saund. 236 d. Shep. T. 308. operate as a conveyance, it must be remembered that estates cannot be passed inter vivos, except by deed; whereas a simple writing, though not under seal, is all that is required by the statute of frauds to give validity to a surrender.

One thing essential to a surrender is not noticed in the definition given above from Coke. An estate cannot merge in one which is not of equal or higher degree. All terms of years, whatever their relative lengths, are considered as of the same degree ; and a term of 1000 years will therefore merge in the one immediately reversionary to it, though it should be but of a year's duration. One estate pur autre vie will merge in another, or in an estate for life ; but an estate for life will not merge in an estate pur autre vie. The estate of a tenant for life, when conveyed to another, becomes an estate pur autre vie in the hands of the assignee; therefore, if a tenant for life in remainder should purchase the estate of the tenant for life in possession, such estate would merge; and, consequently, if the purchaser should die the next day, his representatives would not be entitled to retain the property during the residue of the life of the first tenant for life. A tenant for life in remainder, making such a purchase, should not, therefore, take the conveyance to himself, in case he has the legal estate in his own life-estate, but should bave it conveyed to a trustee for him, which would prevent its destruction ; for a legal estate will not merge in an equitable one; nor, on the other hand, will an equitable particular estate merge in a legal one in remainder.

An estate for life or years will merge in an estate tail ; but an estate tail never merges : and though, previously to the act for the abolition of fines and recoveries, a base fee, into which an estate tail had been converted, when the issue in tail, but not the remainders, had been barred, would have merged,

• Farmer v. Rogers, 2 Wils. 26.

like other base or conditional fees, in the absolute fee-simple in remainder; the 39th section of that act has provided, that a base fee, into which an estate tail is converted, on becoming united with the remainder or reversion in fee, without any intervening estate, shall not merge, but become enlarged into an absolute fee.

Any vested intervening estate in some third party, between the particular estate and the one in remainder, would prevent a merger, during its continuance. A contingent estate, or a right, as that which a widow has to dower before assignment, or an interesse termini, not being vested estates, would not be any obstacle in the way of merger. Thus, if an estate were limited, on the marriage of A. B., to himself for life, with remainder to trustees, for a term of years, to commence from his death, with remainder to his children in tail, (without the intervention of the usual limitation to trustees to support the contingent remainder,) with remainder in fee to his father—if by the death of A. Bi's father before the birth of a child, the remainder in fee should descend to, or otherwise become vested in, A. B., his estate for life would merge, notwithstanding the interesse termini, in the trustees,b and the contingent remainder to the children; and though the term would take effect on A. Bi's death, his children would never derive any benefit from the limitation in their favour.

A term of years which has not yet commenced, (often called a reversionary term, as distinguished from a term of the reversion, which is a term actually running, but, owing to the existence of some particular estate, cannot take effect in possession,) is

. Ante, p. 157.
'Doe v. Pickard, 1 Williams Saund. 236.
Watkins' Conveyancing, Book i. chap. 6.

Doe v. Walker, 5 Barn. and Cress. 111, * 4 Bac. Abr. Leases R.

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