Schieffelin vs. Carpenter and others, 15 Wend. 400

By the Court, Nelson, J. This case has been elaborately argued upon paper by the respective counsel, and all the authorities and principles bearing upon the points disputed, have been referred to and examined ; and were it not for some recent cases in the English courts, that are very confidently urged by the defendant’s counsel, it seems to me there would be but little difficulty in disposing .of the case. A surrender js defined 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 agreement.

Comyn’s Landlord & Tenant,337. 2 Co.Litt. 551. 4 Cruise, 155. 4 Bacon’s Air. 209. Shep. Touch. 300, 307. Before the statute of frauds and perjuries, any form of words without writing, whereby an intention appeared to surrender up the possession of the premises to the lessor or reversioner, was sufficient for that purpose. This was called a surrender in fact. There was also a surrender in law.

It was effected by the acceptance of a new lease of the premises from the lessor, for the whole or a part of the time embraced in the former one, because it necessarily implied a determination and surrender of that lease ; otherwise the lessor would be unable to make the second, or the lessee to enjoy it, and it was therefore but reasonable to presume both parties intended to waive and relinquish the benefit of the first one. The second lease before the statute referred to, of course need not have been in writing to operate an effectual surrender of the first one.

The statute of 29 Car. enacted “ that all leases, estates, interests of freehold or terms of years, or any uncertain interests of, in, to or out of any lands, &c. made or created by livery and seizin only, or by parol, and not put in writing, &c. shall have the force and effect of leases or estates at will only,” &c. excepting leases not exceeding the term of three years from the making thereof.

And also, “no leases, estates or interest either of freehold or term of years, or any uncertain interest, &c. of, in, to or out of any messuages, &.c. shall be assigned, granted or surrendered, unless by deed or note, in writing, or operation of law.’’ Our statute (2 jR.

S. 134, §6 ) provides that “ no estate or interest in lands, other than leases for a term not exceeding one year, &c. shall hereafter be created, granted, assigned, surrendered, &c.unless by act or operation of law,ox by deed or conveyance in writing.”&c.1§>8. “ Every contract for the leasing for a longer period than one year, &c. shall be void,” unless in writing.

Since these statutes, a parol lease in England for more than three years, and in this state for more than one, is entirely void; though if the tenant enters into possession, he shall be deemed a tenant at will, arid for the purpose of notice to quit, from year to year, and notwithstanding the lease be void, it may regulate the terms of holding as to rent, time to quit; &c. 5 T. R. 471. Comyn’s L. & T. 8. Wood. 14, 15. 4 Cow. 350. 7 id. 751. But as a lease for the purposes for which it .was given, it is considered wholly void.

It is, jlowever^ conclusively settled by authority, that the second lease must be a valid one, so as to convey, the interest it professes to convey, to the lessee, and also to bind him to the performance of the covenantor agreement in favor of the lessor, in order to operate as an effectual surrender of the first one. 3 Burr. 1807. 4 id. 1980, 2210. 6 East, 86. Comyn’s Dig. tit.Estate, G. 13. 4 Bac. Abr. 215. Without this, the reason before given for the implied surrender would fail, and the intent of the parties be altogether defeated.

Instead of being but a surrender of the first lease, it would be a surrender of the whole estate and interest in the premises, and a virtual determination of the existence of any tenancy. Now the ground upon which the surrender in this case is mainly argued is, not that a new lease. was given to the original lessee, but that it was given to Mills and Owen with his consent, for the period of eight or ten years. Assuming this, amotints to the same as if given to Carpenter; it is impossible to maintain that any valid lease has been proved in the case, or any lease whatever for a definite period.

The most that was offered to be proved was, that Mills and Owen went into possession with the consent of the defendants, under a parol agreement for a lease for eight or ten years ; and if it be viewed as an agreement for a lease, or as a virtual lease for that time, it is void under the statute, and could not be enforced by either of the parties. An implied tenancy at will ■only was created, which enabled Mills and Owen to.hold from year to year, for the purpose of notice to quit, but which they could terminate at any moment they pleased.

The agreement and entry in pursuance of it conferred no rights upon the plaintiff, further than to recover his rent .while they continued to occupy, and perhaps a quarter’s rent, if they abandoned the occupation after the commencement of a quar ter and before its termination. Suppose this agreement had been made with the original tenant, and- the defendants can claim no more from it as offiered to be proved, could it be contended that it operated as a virtual surrender of the lease for six years, and that the plaintiff could dispossess the tenant on giving six months notice to quit ?

This would be the consequence of the doctrine urged in the defence. The tenant would become a mere tenant at will. The authorities already referred to clearly establish that the second lease, to have the effect claimed, must pass the interest in the premises according to the contract, or in other words, carry into legal effect the intent of the parties executing it. 3 Burr. 1807. 4 id. 1980,2210. Comyn’s Dig. tit. Estate, 9, 12. 6 East, 661. 6 Wendell, 569. 1 Saund. 236, b. n.

It is stated by Baron Gilbert, 4 Bacon’s Abr. 210, that since the statute of frauds the new lease must be in writing in order to operate as an implied surrender of the old one, for it is then of equal notoriety with a surrender in writing. This position is also adopted by Serjeant Williams, in his notes upon the case of Thursby v.Plant, 1 Saund. 236, n. b.

But as surrenders by operation of law are expressly excepted out of the statute, as a necessary consequence they are left as at common law; and there it is clear it need not be in writing to have the effect to surrender the old one, even if by deed. 2 Starkie’s Ev. 342. 20 Viner, 143, L. pl. 1, n. 1 Saunders, 236, n. c. 1 am inclined therefore to think that a valid parol lease, since the statute, might produce a surrender in law within the reason and principle upon which this doctrine is founded. The true rule seems to be that laid down by Mr.

Starkie, 2 Starkie’s Ev. 342, as follows: the taking a new lease by parol is by operation of law a surrender of the old one, although it be by deed, provided it be a good one, and pass an interest according to the contract and intention of the parties; for otherwise the acceptance of it is no implied surrender of the old one.

If the first lease in this case has not been surrendered, then there is no ground of defence against the action upon the express covenants contained in it, even if we should concede a legal assignment from the tenant to Mills and Owen, and the acceptance of them expressly or impliedly by the plaintiff. 4 T. R. 98, 100. 1 Saund. 241, n. 5. Woodf. 278. Cro. Car. 188. Comyn’s Land.& Tenant,275,and cases there cited. But ^ plaintifF stipulated against assignment or under-letting unless permission was given in writing, and a parol license is therefore inoperative. 2 T. R. 425. 3 id. 590. 3 Madd. 218.

Platt on Cov. 437, This clause in a lease would be nugatory, if courts should allow parol evidence to control in the matter. Besides a parol assignment is void under the statute of frauds. The case of Thomas v. Cook, 2 Starkie’s R. 408, is supposed to have a strong bearing upon this one. In that case there was a parol lease from year to year to Cook, who under-let to Parkes. The rent being in arrear, Thomas' dis-trained upon him, and he paid it by a bill of exchange ; on receiving which he declared he would have nothing more to do-with Cook.

Afterwards, however, he brought his action against him for rent then due. For the plaintiff it was insisted that there was no surrender within the statute of frauds!. Abbott, C. J., left it to the jury to say, whether the plaintiff had not accepted Parkes as his tenant, with the assent of Cook; and the jury finding in the affirmative, the plaintiff was non-suited. The court at the ensuing term, when the case- was moved, were of opinion there was a surrender by operation of law.

They say if a lessee, assign and the lessor accept the assignee of the lessee as his tenant, that in point of law puts an end to the priority of estate, and an action of debt cannot be brought to recover the rent. That I admit to be true, but if the lease had been in writing, according to the cases above cited, a suit might still be maintained upon the express covenant in it, though the privity of estate was gone. Besides, the assignment was void as such under the statute of frauds, 1 Campb. 318. 5 Bing. 25. Comyn’s Land, & Ten. 55, and cases there bited. Woodf. 277.

Again, the court say it is a rule of law, that the acceptance of a subsequent lease by parol operates as a surrender of a former lease by deed. That is true under .the circumstances we have before endeavored to explain, and is undoubtedly the legal ground upon which that case may be maintained. The case sufficiently shows that the implied parol demise to Parkes was a valid one to the extent intended by both parties the one to Cook was a lease from year to year, and the acceptance of Parkes, as tenant in his place, impliedly gave him the same tenure and term ; no writing was necessary for that purpose.

This is the ground upon which the case is said to stand by the court, in commenting upon it in a subsequent term. -4 Barn. Cres. 922. In the case of Grimman v. Legge, 8Barn. & Cres. 324, the lease was by parol for oneyear, for the first and second floor ofa house; a dispute having arisen before the end of the year, the tenant said she would quit. The landlord Said he would be glad to get rid of her. She accordingly left the premises, and possession was taken by him. The facts were submitted to the jury,to presume a rescindment of the original contract between the parties. The case of Stone v.

Whiting, 2 Starkie, 235, is precisely like the case of Thomas v. Cook, and stands upon the same principle. In the case of Whitehead v. Clifford, 5 Taunt, 518, the lease was by parol from year, to year, and stands upon the footing of Grimmany. Legge. In the case of Hammerlin v. Stead, 3 Barn. Cres. 478, a tenant from year to year entered into an agreement in writing for .a lease to him' and another, and from that time both occupied.

It was held that the new agreement, coupled with the joint occupation, determined the former tenancy, and operated as a surrender in law, though the lease contracted for was never granted. If the new agreement and occupation were viewed as a tenancy from year to year, which was of equal tenure with the first lease, there was at least no hardship in this decision. The judges obviously were somewhat embarrassed in their endeavors to place the case upon principle, and some of their observations conflict with the case in 6 East, 86, whicli they admitr ted to be good law'.

The first case was by parol from year to year, and might well have been put upon the footing of the cases to which I have referred, where the facts were submitted to the jury to find the first contract rescinded. The law seems to be well settled, that under a covenant tp repair like the one in question, the landlord need not wait till the expiration of the term before bringing an action for the breach, under an idea that the tenant may, before he leaves tfie premises, put them in good condition. 1 Barn. & Ald. 584. 2 Ld. Raym. 803, 1125. 1 Salk. 141. Platt on Cov. 289. Comyn's Land. & Ten. 210.

If the covenant was only to leave the premises in as good a condition as the tenant found them, it seems an action would not lie till the end of , the term. Shep. Touch. 173. Platt on Cov. 289. The defendant cannot question,, in this action, the title of the landlord. The action is upon an express covenant between the parties, and the suit, if sustained at all, must be by the plaintiff alone. New trial denied.