OF A DEED THIS INDENTURE made, &c., BETWEEN the withinnamed (vendor) of the one part, and the within-named (purchaser) of the other part. WHEREAS since the execution of the within-written indenture, it hath been discovered that [Setting forth the circumstances that render a confirmation necessary, and the agreement for a ratification.] Now THIS INDENTURE WITNESSETH, that in pursuance and performance of the said agreement, and for the considerationmoney and premises within mentioned, and also for and in consideration of the sum of 10s. of lawful money of Great Britain to the said (vendor,) in hand paid by the said (purchaser,) at or immediately before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, HE the said (vendor) HATH granted, bargained, sold, ratified, and confirmed, and by these presents DOTH grant, bargain, SELL, ratify, and confirm unto the said (purchaser) and his heirs, ALL and singular the messuages, lands, tenements, hereditaments, and other the premises comprised in and mentioned to be granted and conveyed by the within-written indenture of release, with all and every the rights, members, privileges, and appurtenances to the same belonging, and all the estate, right, title, interest, use, trust, property, benefit, claim, and demand whatsoever, both at law and in equity, of him the said (vendor,) in, to, upon, out of, or respecting the said messuages, lands, tenements, hereditaments, and premises, and every or any of them, and every or any part thereof, To HAVE AND TO HOLD the said messuages, lands, tenements, and hereditaments, and all and singular other the premises in or by the within-written indenture, described, and there or hereby granted, ratified, and confirmed, or mentioned and intended so to be, with their and every of their respective rights, members, privileges, easements, appendages, and appurtenances whatsoever, UNTO and to and for the sole and only proper use, benefit, and behoof of the said (purchaser,) his heirs and assigns for AND the said (vendor) for himself, his heirs, executors, and administrators, doth hereby covenant, promise, ever. * And note, that it is only in cases where there is some defect under which the deed is merely voidable, that a confirmation can have any effect; for where the deed is absolutely void no deed of confirmation can make it good. See p. 326, supra. and declare to and with the said (purchaser,) his heirs and assigns, in manner following; (that is to say,) that the said vendor hath not; at any time or times heretofore, made, done, executed, or knowingly suffered, nor been party or privy to any act, deed, matter, or thing whatsoever, whereby or by means whereof the said messuages, lands, tenements, hereditaments, and premises within mentioned, to be granted, released, and conveyed, or otherwise assured, and hereby granted, ratified, and confirmed, or mentioned and intended so to be, as aforesaid, or any part or parcel thereof, or any estate or interest therein, are, is, or can or shall or may be in any wise impeached, charged, incumbered, or prejudicially affected in estate, title, or otherwise howsoever; OR whereby or by means whereof this present deed of confirmation is, or can, or shall, or may be rendered void, voidable, or inoperative in law AND that he the said (vendor,) at the time of the sealing and delivery of these presents, hath in himself good right, full power, and lawful and absolute authority to ratify, assure, and confirm the said messuages, lands, tenements, hereditaments, and premises, unto and to the use of the said (purchaser,) his heirs and assigns, in the manner aforesaid, and according to the true intent and meaning of these presents. IN WITNESS, &c. CHAP. VIII. OF A SURRENDER.. A SURRENDER is the yielding up, or returning, or relinquishing of a smaller estate to him who has a greater estate in the same land, in remainder or reversion immediately expectant upon such smaller estate. Shep. Pr. 60. Touch. 300. 2 Bl. Com. 326. Watk. Pr. 189. And although it may be made by other words, yet the most proper and significative words whereby to make it are," "surrender, give, and yield up." Shep. Pr. 61. And he that doth surrender is called the surrenderor, and he to whom it is made the surrenderee. Shep. Touch. 30. Of this surrender there are three kinds. 1. A surrender properly taken at common law.-2. A surrender by custom of lands holden by custom, or of customary estates.*-3. A surrender improperly taken; as of a deed, or grant of a rentcharge, of a patent, and of land in fee-simple to the King. Shep. Touch. 300. The surrender properly taken is of two sorts: 1st. express or by deed;-2dly. in law or implied; which is, when it is wrought by consequence and operation of law, or when the law doth interpret or enure something done to another intent to make a surrender of it; as where an estate, incompatible with the existing estate, is accepted † ; or where the * Not treated of by Sheppard; but for which see Mr. Watkins's excellent Treatise on Copyholds and Gill. Ten. 157. Wright's Ten. 215. As if a lessee for his own life or another's life, in possession or reversion, take a new lease for years; or a lessee for forty years takes a new particular estate, as a term for years, is actually transferred to the person having the immediate reversion or remainder in fee, with a view that it should abide in him. In these cases the law construes it to be a surrender.* Pres. Ed. 301. Shep. Touch. The surrender improperly taken is this: if a man hath a rent in fee, for life or years, issuing out of another man's manor, or other lands, and he deliver the deed of the grant of the rent to be cancelled to any one that hath any estate of the manor or land in fee-simple, for life or years, in possession or remainder, either solely by himself, or jointly with others, this is a good surrender; and hereby the rent is extinct and gone; for the grantor hath no remedy for his rent when he hath delivered up his deed, which cannot be pleaded without a profert. Shep. Touch. 310. But one that is tenant in tail of a rent cannot, as against his issue, surrender it; neither will the delivering up of the deed, in this case, determine the rent. lbid. Pres. Ed. And now, by the Statute of Frauds, (29 Car. 2. c. 3. §3.) no lands, either of freehold or for term of years, or any uncertain interest, not being copyhold or customary interest, shall be surrendered, unless it be by deed or note in writing, signed by the party surrendering the same, or their agents, thereunto lawfully authorised by writing, or by act or operation of law. And when it is made by a note in writing, and not by lease for fifty years; the first lease in both these cases is in law surrendered; as the acceptance of an interest incompatible with the first. And this rule holdeth, although the second lease be for a less term than the first, as if lessee for life accept a lease for years; or lessee for twenty years accept a lease for two years. Shep. Touch. Pres. Ed. 301. But if the second lease be not to begin until the first end, the taking of this second lease is no surrender of the first lease. Shep. Touch. 302. * That is the minor estate becomes merged or drowned in the larger estate. For it may be set up and established by the issue in a Court of Equity. deed, it must be stamped, as an agreement, testifying the intention of the parties. Shep. Touch. Pres. Ed. 306. n. 8. Touching a surrender by deed, these things are to be known. Shep. Pr. 61. Shep. Touch. 306. 308, 309. 1. That which is required to the perfection of all deeds, is required to the perfection of this deed, to make it operate as a deed.* 2. It is best in this deed to use the most proper and significant words, yet any other words, especially if it be a surrender of a lease for years, that the agreement of the parties be, that he in remainder or reversion shall have his estate, may be sufficient to pass the estate by way of surrender. 3. Any kind of estate for life, as by dower, by the curtesy, or as tenant in tail after possibility of issue extinct, or for years, may be surrendered; but not estates in fee-simple or fee-tail; nor may surrenders be made of rights or titles of estates, for life or years, but it must be of the possession. itself. 4.. The surrender must be made to him that hath the next immediate estate in remainder or reversion, and there must be no intermediate estate. 5. There must be a privity of estate between the surrenderor and the surrenderee. 6. The party to whom the surrender is made must have a higher and greater estate in the thing surrendered, than he that doth make the surrender hath; so that the estate of him that makes the surrender may be merged or drowned in it. 7. He to whom the surrender is made must be solely seised, and not in joint-tenancy of the remainder or reversion. * Particularly that the surrenderor be a person able to grant and make, and the surrenderee a person capable and able to take and receive a surrender. Shep. Touch. 303. AND note, that by the statute of 29 Geo. 2. c. 31. infants, lunatics, and femes-covert, may surrender leases for the purpose of renewal. |