The merges in the legal, in equity, as well as at law. rule at law is inflexible; but in equity it depends upon circumstances, and is governed by the intention, either expressed or implied, (if it be a just and fair intention,) of the person in whom the estates unite, and the purposes of justice, whether the equitable estate shall merge, or be kept in existence. If the person in whom the estates unite be *not competent, as by *103 reason of infancy or lunacy, to make an election, or if it be for his interest to keep the equitable estate on foot, the law will not imply such an intention. It would be inconsistent with the object of these Lectures, to pursue the learning of merger into its more refined and complicated distinctions; and especially when it is considered, according to the language of a great master in the doctrine of merger, that the learning under this head is involved in much intricacy and confusion, and there is difficulty in drawing solid conclusions from cases that are at variance, or totally irreconcilable with each other.d (6.) Surrender is the yielding up of an estate, for life •Preston, ub. sup. 314-342. Goodright v. Wells, Doug. 771. ten, 3 Ves. 339. Donisthorpe v. Porter, 2 Eden's Rep. 162. Forbes v. Moffat, 18 Ves. 384. Starr v. Ellis, 6 Johns. Ch. Rep. 393. Gibson v. Crehore, 3 Pickering, 475. • Lord Rosslyn, in Compton v. Oxenden, 2 Ves. jr. 361. James v. Johnson, 6 Johns. Ch. Rep. 417. James v. Morey, 2 Cowen, 246. Gardner v. Astor, 3 Johns. Ch. Rep. 53. The third volume of Mr. Preston's extensive Treatise on Conveyancing, is devoted exclusively to the law of merger. It is the ablest and most interesting discussion in all his works. It is copious, clear, logical, and profound; and I am the more ready to render this tribute of justice to its merits, since there is great reason to complain of the manner in which his other works are compiled. He has been declared, by one of his pupils, to have "stupendous acquirements as a property lawyer." The evidence of his great industry and extensive and critical law learning, is fully exhibited; but I must be permitted to say, after having attentively read all his voluminous works, that they are in general encumbered with much loose matter, and with unexampled and intolerable tautology; magnitudine laborant sua. or years, to him that hath the next immediate estate in reversion or remainder, whereby the lesser estate is drowned by mutual agreement. The underlessee cannot surrender to the original lessor, but he must surrender to his immediate lessor or his assignee. The surrender may be made expressly, or it may be implied in law. The latter is when an estate, incom*104 patible with the existing estate, is accepted; *or the lessee takes a new lease of the same lands. As there is a privity of estate between the parties, no livery of seisin is necessary to a perfect surrender, though (as we have already seen") the surrender is required by the statute of frauds to be in writing. It has accordingly been held, by Lord Chief Baron Gilbert,* that a lease for years cannot be surrendered by merely cancelling the indenture, without writing. The surrender must not be taken from the cestui que trust, but from the legal tenant; and if an old satisfied term has lain dormant for a long time, though still outstanding in the trustee, the surrender of it to the cestui que use is sometimes presumed, to support the legal title in him. To guard against the mischievous consequence which C Co. Litt. 337, b. Preston on Abstracts of Title, vol. ii. 7. Livingston v. Potts, 16 Johns. Rep. 28. Shep. Touch. by Preston, vol. ii300, 301. In that old and venerable work, under the title Surrender, the whole law is fully and clearly laid down ; but Mr. Preston said, that in a fourth volume to his Treatise on Conveyancing, (and which I have not seen,) the theory and practice of the law of surrenders was to be examined. On a demise in writing of a house to C., the key was delivered to C.'s wife, and he entered into possession. But the wife afterwards delivered back the key to the lessor who accepted it. It was held, that the delivering back the key, animo sursum reddendi, and the acceptance of it, amounted to a surrender by operation of law within the statute of frauds. Dodd v. Acklom, 6 Manning & Granger, 672. a Supra, p. 95. • Magennis v. M‘Cullough, Gilb. Cas. in Eq. 236. 'Doe v. Sybourn, 7 Term Rep. 2. Goodtitle v. Jones, ibid. 47. Doe v. Hilder, 2 Barnw. & Ald. 782. sometimes result from a surrender, in discharging the underlessee from the payment of rent, and the conditions and dependent covenants annexed to his lease, the statute of 4 Geo. II., c. 28, sec. 6, provided, that if a lease be surrendered to be renewed, and a new lease given, the privity and relation of landlord and tenant, between the original lessee and his underlessees, should be reserved; and it placed the chief landlord, and his lessees, and the underlessees, in reference to rents, rights, and remedies, exactly in the same situation as if no surrender had been made. This provision has been incorporated in the New-York Revised Statutes; but in those states in which it has not been adopted, the question may arise, how far the undertenant (whose derivative estate still continues) is discharged from *all the rents *105 and covenants annexed to his tenancy, according to the authority of Barton's case, and of Webb v. Russel,c in which that inequitable result is indicated. The same rule is declared in the text books of the old law.d (7.) A term for years may be defeated by a condition, or by a priviso of cesser on the happening of a specified event, or by a release to the disseisor of the reversioner. It is sometimes a question, whether the instrument amounts to a lease, or is merely a contract for a lease. It is purely a question of intention; and the cases sufficiently establish the rule of construction to be, that though an agreement may, on one part of it, purport to be a lease, yet if, from the whole instrument, taken and compared together, it clearly appears to have been intended to be a mere executory agreement for a future New-York Revised Statutes, vol. i. 744, sec. 2. ▸ Moore, 94. 3 Term Rep. 401. • Shep. Touch. by Preston, vol. ii. 301. • Co. Litt. 276, a. lease, the intention shall prevail. So, a contrary conclusion is drawn, when the intention from the instrument appears to create a subsisting term, though it contemplated a more formal lease to be made. The case of Poole v. Bentley, contains the leading and the sound doctrine on the subject. Where agreements have been adjudged not to operate by passing an interest, but to rest in contract, there has been, usually, either an express agreement for a further lease, or, the construing of the agreement to be a lease in præsenti, would work a forfeiture, or the terms have not been fully settled, and something further was to be done.b *106 *Leases for years may be forfeited, by any act of the lessee, which disaffirms the title, and determines the relation of landlord and tenant. If he acknowledges or affirms, by matter of record, the fee to be in a stranger, or claims a greater estate than he is entitled to, or aliens the estate in fee by feoffment, with livery, which operates upon the possession, and effects a disseisin, or if he breaks any of the conditions annexed to the lease, he forfeits the same.c But these forfeitures are very much reduced, in this country, by the disuse Chapman v. Tonner, 6 Meeson & W. 100. Brashier v. Jackson, Id. 549. Sturgeon v. Painter, Noy, 128. Foster v. Foster, 1 Lev. 55. Baxter v. Browne, 2 Wm. Blacks. Rep. 973. Goodtitle v. Way, 1 Term Rep. 735. Doe v. Clare, 2 ibid. 739. Roe v. Ashburner, 5 ibid. 163. Doe v. Smith, 6 East's Rep. 530. Poole v. Bentley, 12 ibid. 168. Morgan v. Bissell, 3 Jackson v. Clark, Taunt. Rep. 65. Jackson v. Myers, 3 Johns. Rep. 388. ibid. 424. Thornton v. Payne, 5 ibid. 77. Jackson v. Kisselbrack, 10 ibid. 336. Jackson v. Delacroix, 2 Wendell, 433. Bacon v. Bowdoin, 22 Pick. 401. Preston on Convey. vol. ii. 177. Pinero v. Judson, 6. Bing. 206. In Chipman v. Bluck, Arnold's Rep. vol. i. 27, it was held, that the intention of the parties as whether a lease was meant, or only an agreement for a lease, may be gathered, not only from the instrument, but from the concurrent or subsequent acts of the parties. By the acts of 7 and 8 Vict., c. 76, and 8 and 9 Vict., ch. 106, any instrument not under seal, will operate only as an agreement for a lease, though in the terms of a lease. 12 East's Rep. 168. • Co. Litt. 251, b. Bacon, tit. Leases, sec. 2. See, infra. or abolition of fines and feoffments, and by the statute provision, that no conveyance, by a tenant for life or years, of a greater estate than he could lawfully convey, should work a forfeiture, or be construed to pass any greater interest. As conveyances, with us, are in the nature of grants, and as grants pass nothing but what the grantor may lawfully grant, it would follow, of course, upon sound legal principles, even without any statute provision, that conveyances to uses would not work a forfeiture of the particular estate. (8.) It was a clear principle of the common law, that no man could grant a lease to continue beyond the period at which his own estate was to determine; and, therefore, a tenant for life could not, by virtue of his ownership, make an estate to continue after his death. But a lease made under a power may continue, notwithstanding the determination of the estate by the death of the person by whom the power is exercised. The limitation and modifying of estates, by virtue of powers, came from equity into the common law with the statute of uses, and the intent of the *107 gave the party who the construcpower, governs tion of it. Powers to make leases are treated liberally, for the encouragement of agricultural improvement and enterprise, which require some permanent interest. If a man hath a power to lease for ten years, and he leases for twenty years, the lease is bad at law, but good in equity for the ten years, because it is a complete execution of the power, and it appears how much it has been exceeded. If the power to lease be uncircumscribed, New-York Revised Statutes, vol. i. 739, sec. 143. 145. Mass. Revised Statutes, 1835, part 2, tit. 1, c. 59, sec. 6. Litt. sec. 608, 609, 610. 618. Co. Litt. 330, b. 332, a. Hale v. Green, 2 Rol. Abr. 261, pl. 10. Ram on Tenure and Tenancy, 75. Lord Mansfield, in Burr. 120. parte Smyth, 1 Swanst. Rep. 337. 357. VOL. IV. Campbell v. Leach, Amb. 740. Ex- 9 |