custody with the seals torn off, and evidence being given of a custom to send in the old leases to the lessor's office before renewal (y). An outstanding satisfied term may be presumed to have been surrendered (3). But if a term has been assigned to attend the inheritance, and there has been no act or omission inconsistent with the existence of the term, a surrender will not be presumed from the mere lapse of time and silence of the party possessing the inheritance (a). An acceptance of a surrender of a lease is not to be presumed from the circumstance of rent having been paid by a third person and not by the original tenant (b).

CHAP. V.

Surrender.

whom.

The surrenderor must be a person able to grant and By and to make, and the surrenderee a person able to take and receive a surrender. The surrenderor must therefore have an estate in possession of the thing surrendered at the time of the surrender made, and not a bare right to it only. The surrenderee must have such an estate, that the estate surrendered may be capable of merging in it, so that tenant for life cannot surrender to him in remainder for years (c). There must be no intervening estate between that surrendered and that into which it is to merge (d). One joint-tenant cannot surrender to another joint-tenant; and a lease cannot be surrendered to sequestrators from the Court of Chancery (e); as in these

(y) Walker v. Richardson, 2 M. & W. 882; Doe v. Thomas, 9 B. & C. 298.

(z) Doe d. Burdett v. Wright, 2 B. & A. 710, 720; Bartlett v. Jones, 5 D. & Ryl. 526; Doe d. Putland v. Helder, 2 B. & A. 782, 791; but see Doe d. Blacknell v. Plowman, 2 B. & Ad. 573; Day v. Williams, 2 C. & J. 460.

(a) Sugd. V. & P. 389.

(b) Copeland v. Watts, 1 Stark. 96.

(c) Perk. s. 589; Hughes v. Robotham, Cro. Eliz. 302; Dighton v. Greenvil, 2 Vent. 326.

(d) Bac. Abr. "Leases," S. 2.

(e) Cornish v. Searell, 8 B. & C. 471.

CHAP. V. cases there is no estate into which the estate surrendered

Surrender.

Effect of.

may merge.

A surrender immediately divests the estate out of the surrenderor, and vests it in the surrenderee. Thus, if a tenant for life or years surrenders at a place off the land to him in reversion, and the latter agrees to it, the estate is vested in him without further ceremony; his title is complete without entry, though for the purpose of maintaining an action of trespass for any injury committed to the land, an actual entry must be made (ƒ). The effect of a surrender by a lessee for life or years, who had made a lease for years rendering rent, was formerly held to be that the lease so made would continue, notwithstanding the surrender; but the underlessee would be discharged from such rents and covenants as were annexed to the reversionary estate, which had ceased to exist by the surrender (g). This effect was provided against by statute (h) in cases where the surrender was for the purpose of renewal, and it was enacted that the new lessee should have the like remedy as to the rent and covenants, and the underlessee should hold as if the original lease had been kept on foot; and that the chief landlord should have the like remedy by distress and entry as he would in the same case have had, so far as the new rent exceeds not that in the original lease. And now by a recent statute (i) it is enacted, "that when the reversion expectant on a lease, made either before or after the passing of this act (k), of any tenements or hereditaments of any tenure, shall, after the first day of

(f) Shep. Touch. 307, 308; Thompson v. Leach, 2 Salk. 618; 2 Vent. 198.

(g) Lord Treasurer v. Burton, Moore, 94; Webb v. Russell, 3 T. R. 402; 3 Prest. Conv. 140.

(h) 4 Geo. 2, c. 28; Doe v. Marchetti, 1 B. & Ad. 715; Pike v. Eyre, 9 B. & C. 909; Pleasant v. Benson, 14 East, 234. (i) 8 & 9 Vict. c. 106, s. 9.

(k) 4th of August, 1845.

Surrender,
Effect of.

October, 1845, be surrendered or merge, the estate which CHAP. V. shall for the time being confer, as against the tenant under the same lease, the next vested rights to the same tenements and hereditaments, shall, to the extent and for the purpose of preserving such incidents to and obligations on the same reversion, as but for the surrender or merger thereof would have subsisted, be deemed the reversion expectant on the same lease.”

A tenancy may be determined by forfeiture. Upon Forfeiture. the breach of an implied or express condition an estate becomes forfeited. Thus, if a tenant for life or years enfeoff a stranger in fee simple, this is a breach of a condition implied by law and annexed to his estate, and a forfeiture is the consequence of such breach (1). With respect to the breach of an express condition, it is to be observed that a lessor may annex whatever conditions he pleases to his grant, provided they be not illegal, unreasonable, or repugnant to the grant itself; and upon the breach of these conditions may avoid the lease (m). These conditions are either precedent or subsequent ; precedent, when they must happen or be peformed before the estate can vest in the grantee (n); subsequent, when by the failure or non-performance of them an estate already vested may be defeated. If a man grant an estate, reserving rent, with a condition that, if such rent be not paid at the times limited, it shall be lawful for him to re-enter and avoid the estate; in this case the grantee will have an estate upon condition subsequent, which is defeasible, if the condition be not strictly performed (o). Estates depending on conditions subsequent distinguished from estates created by a conditional limitation; when land is granted to a man so long as he

are

(1) Co. Litt. 215 a; Rees v. Everington, Cro. Eliz. 322. (m) Doe d. Hunter v. Galliers, 2 T. R. 137.

(n) Co. Litt. 217 b; Lord Stafford's case, 8 Rep. 73 b. (0) Litt. s. 325.

By forfeiture.

CHAP. V. is parson of Dale, or while he continues unmarried, or until out of the rents and profits he shall have made 500l., and the like, in such case the estate determines as soon as the contingency happens; and the next subsequent estate, which depends upon such determination, becomes immediately vested, without any act done by him who is next in expectancy. But when the estate depends on condition in deed, as if granted expressly upon condition to be void upon the payment of 401. by the grantor, or so that the grantee continues unmarried, or provided he goes to York, &c., the law permits it to endure beyond the time when such contingency happens; unless the grantor or his heirs take advantage of the breach of condition, and make an entry in order to avoid the estate (g). There is a difference between conditions of re-entry on leases for lives and on leases for years. On leases for lives, the rule, that where an estate commences by livery it cannot be determined before entry, holds; and therefore it has been held that in such cases, if the tenant refuse to pay his rent after a regular demand, or is guilty of any other breach of the condition of re-entry, the lease is only voidable, and cannot be determined until the lessor re-enters, i. e. brings an ejectment for the forfeiture; though the clause of the condition should be that, for the nonpayment of rent or the like, the lease shall cease and be void (r). But if a lease for years be made upon condition that, upon nonpayment of rent or the like, it shall be null and void; if the lessor makes a legal demand of the rent, and the lessee neglects or refuses to pay, or if the lessee commits any other breach of the condition of re-entry, the lease is absolutely determined without any entry by the lessor;

(9) Litt. s. 347, 331; 32 Hen. 8, c. 34; Mary Portington's case, 10 Rep. 40 b, 44 b; Avelyn v. Ward, 1 Ves. sen. 420; Doe d. Henniker v. Watt, 8 B, & C. 308.

(r) Browning v. Beston, Plowd. 135; Co. Litt. 214 b; Doe v. Pritchard, 5 B. & Ad. 765.

By forfeiture.

and cannot be set up again by acceptance of rent due CHAP. V. after the breach of the condition (s). The lessor has, in this case, the option whether he will consider it as void or not, for the Court will not permit the lessee to take advantage of his own wrong (t). If the landlord, by acceptance of rent or the like, with notice of the breach, waives the forfeiture, then, it would seem, the distinction between leases for lives and leases for years is no longer to be regarded. Thus, where the proviso, besides the statement that if any of the covenants should be broken, the term should cease, determine and be absolutely void, added, "and it shall be lawful for the landlord into and upon the demised premises to re-enter, &c. ;" it was held that this proviso did not make the lease absolutely void, but voidable only, and that the landlord by a subsequent receipt of rent had waived the forfeiture (u).

These express conditions are void, if they are impossible at the time of their creation, or afterwards become so by the act of God, or the act of the lessor himself, or if they be contrary to law or repugnant to the nature of the estate (x). If a condition precedent be void, the estate depending thereon is also void, and the grantee takes nothing by the grant; but in the case of a condition subsequent being or becoming void, the estate does not cease and determine, but becomes absolute in the grantee.

ment of rent.

Where there is a condition of re-entry upon nonpay- On nonpay. ment of rent, the landlord is required to do several things to entitle himself to re-enter. First, he must demand

(s) Goodright v. Davids, Cowp. 804.

(t) Rede v. Farr, 6 M. & S. 121; Doe v. Bancks, 4 B. & A. 401; Roberts v. Davy, 4 B. & Ad. 664.

(u) Arnsby v. Woodward, 6 B. & C. 519; Doe v. Birch, 1 M. & W. 402; Malins v. Freeman, 4 Bing. N. C. 395; Doe d. Green v. Baker, 8 Taunt. 241.

(x) Co. Litt. 206 a; Doe d. Wyndham v. Carew, 1 G. & Dav. 640.