£

words.

of lawful British money, paid by the said [late owner] out of the said purchase-money to the said [surrenderor] on the execution of these presents, in full satisfaction of all monies now due to the said [surrenderor] on the security of the said recited indenture of demise and mortgage, the receipt of which sum the said [surrenderor] hereby acknowledges, and from the same sum and every part thereof hereby releases and for ever discharges as well the said [late owner] as the said [surrenderee], and their respective heirs, executors, administrators, and assigns, The said [surrenderor], at the request and by the direction of the said [late owner], Hath surrendered and yielded Operative up, And by these presents Doth surrender and yield up, unto the said [surrenderee] (34), All the said messuage, lands, hereditaments, and premises hereinbefore described; And all such other (if any) of the hereditaments comprised in the said recited indenture of demise and mortgage as are also comprised in the said recited indenture of release of even date herewith, Together with the rights, members, and appurtenances thereunto belonging; And also all the estate, right, title, term, interest, claim, All estate, &c. and demand whatsoever, of the said [surrenderor], in, to, out of, or upon the said hereditaments and premises, with their appurtenances, To THE INTENT (35), that, by virtue of these pre- Intent of sursents, the residue now unexpired of the said term of 500 years, created by the said recited indenture of demise and mortgage, may merge in the immediate reversion in fee-simple of the said hereditaments and premises now vested in the said [surrenderee], and be thereby extinguished. And the said [surrenderor], for himself, his heirs, executors, and administrators, hereby covenants with the said [surrenderee], his heirs and assigns, that

(34) Ante, n. 33.

(35) The interposition of an estate, either for life, in tail, or for years, will, during its continuance, prevent the merger of the term; but although the instrument could not, under such circumstances, take effect as a surrender, yet it would be operative as an assignment. It is commonly considered hazardous to surrender a term where there is reason to suspect mesne incumbrances. But although the cautious practitioner will assign the term to a trustee, yet, as no incumbrancer, unarmed with the legal estate, could prevail against a bonâ fide purchaser without notice, (vide ante, Vol. 1, Chap. iii.), and as the necessary consequence of the existence of a mesne legal estate (though not of a mesne legal lien only, as a judgment) would be the preservation of the term, it should seem that the danger has been somewhat overrated.

render.

Covenant by that he has not incumbered.

surrenderor

Merger of term prevented by a mesne legal estate.

the said [surrenderor] has not, at any time heretofore, made, done, or permitted any act, matter, or thing, by which, or by means of which, the said hereditaments and premises hereby surrendered, or intended so to be, or any part thereof, are, is, shall, or may be impeached, charged, incumbered, or prejudicially affected. IN WITNESS &c.

Parties.

RECITALS
- of marriage
settlement by
lease and re-
lease, and reco-

very, creating a
term of 1,000
years for raising
portions;

-death of one

No. 9.

SURRENDER by a Termor for Years to a Reversioner for Years.

THIS INDENTURE, made the

day of

in the

year of our Lord, BETWEEN [surrenderor], of &c., of the first part; [owner of the fee], of &c., of the second part; and [surrenderee], of &c., of the third part. WHEREAS, by indentures of lease and release, bearing date

and

days of

in the "

year

respectively the the indenture of release being made between [names of parties], and being a settlement in contemplation of the marriage afterwards solemnized between the said [intended husband, party to the release], with the said [intended wife, party to the release], and by a common recovery suffered by the [husband] in term, in the year of the reign of King George the Third, pursuant to the said indenture of release, All [parcels], with their appurtenances, were limited, from and after the solemnization of the said marriage, and from and after certain uses which have determined, To the use of the said [trustees of term, parties to the release], their executors, administrators, and assigns, for the term of 1,000 years, upon certain trusts for raising portions and maintenance for the younger children of the said marriage, with divers ulterior limitations. AND WHEREAS the said [one

of the trustees of the trustees of the term] died on the

of the term;

the year
surviving him.
died on the

and published
date the

day of

in leaving the said [the other trustee], his co-trustee AND WHEREAS the said [the surviving trustee] day of in the year, having made his last will and testament in writing, bearing day of, in the year and thereby ap

,

in

that the

trusts did not

arise [or were satisfied];

pointed the said [surrenderor] to be sole executor thereof, who proved the same on the day of in the year the Prerogative Court of the Archbishop of Canterbury. AND WHEREAS the trusts of the said term of 1,000 years did not arise, inasmuch as there was no younger child of the said marriage, (or, as the case may be, the portions and maintenance raisable under the trusts of the said term have been long since fully satisfied, without resorting to an execution of such trusts). AND WHEREAS, by virtue of mesne assurances and other acts, and ultimately (36) of the last will and testament of [a mesne owner of the fee], bearing date the day of present owner; and proved on the

,

in the year

in the year

day of

in the Consistory Court of the Bishop of the fee-simple in reversion immediately expectant on the said term of 1,000 years in the said hereditaments became vested in the said [owner of the fee]. AND WHEREAS, by indenture bearing date the day of, in the year and made between the said [owner in fee] and [wife of owner in fee], his wife, of the first part, [surrenderee] of the second part, and [trustee to prevent dower] of the third part, fine levied by the said [owner in fee and wife] in the year of the reign of King George the Fourth, pursuant to the same indenture, the fee-simple in reversion expectant as aforesaid in the said hereditaments was limited To the use

of the devo

lution of the

fee upon the

of deed and fine limiting a term of 500

years to a mort-
gagee; and the
fee to uses to

and by a
term, in present owner;

prevent dower
in favour of the

(36) The practice is to recite the instrument creating the term, and then, instead of deducing the title, step by step, through the intermediate stages, to recite shortly, that, by virtue of mesne acts, and ultimately of a particular instrument, the term became vested in A.; and that, by virtue of other mesne acts, &c., the reversion in fee became vested in B., or became limited to certain uses. When it happens, as in the text, that a second term is created by a subsequent owner, the fee should, by the same process, be brought down, first to such owners, and then, after shewing the creation of the term, to the present owner. If the terms to be dealt with are numerous, or the title relating to them is complex, a yet more succinct method may be adopted. Thus, where several terms are assigned or surrendered by a separate deed, upon a purchase of the fee, the deed may begin by reciting the conveyance of even date to the purchaser, setting forth the parcels, and may then recite that the lands are subject (as to all or part, as the case may be) to the residue of a term of 500 years, which was created by an indenture, dated &c., and which, by virtue of divers mesne acts, and ultimately &c., became vested &c., also to another term of 1,000 years, created by &c.

Modes of reciting the creation

and deduction of titles to

terms.

lution of the

term of 500

years upon the surrenderee, as

trustee for the present owner;

of the said [surrenderee], his executors, administrators, and assigns, for the term of 500 years, by way of mortgage, for securing the payment to him or them of the sum of £ with interest at £5 per cent. per annum, at the time and in manner therein mentioned, but in which payment default was made, and subject thereto, To such uses as the said [owner in fee] should at any time, or from time to time, by any deed or deeds appoint, and in default of such appointment, To the use of the said [owner in fee] and his assigns during his life, without impeachment of waste, with remainder to the use of [trustee], his executors and administrators, during the life of the said [owner in fee], upon trust, nevertheless, for the said [owner in fee] and his assigns, with remainder to the use of the of the devo said [owner in fee], his heirs and assigns. AND WHEREAS, by virtue of mesne assignments and other acts, and ultimately of an indenture of assignment bearing date the day of in the year in the year, made between [names of parties], the said hereditaments became vested in the said [surrenderee] for the then residue of the said term of 500 years, upon trust to attend the inheritance, according to the uses of the lastly -of owner's de- hereinbefore recited indenture. AND WHEREAS the said [owner in fee] is desirous of having the residue of the said term of 1,000 years merged. years merged. Now THEREFORE THIS INDENTURE WITNESSETH, that, in compliance with such desire, and in consideration of 10s. paid on the execution hereof by the said [surrenderee] to the said [surrenderor], the receipt whereof is hereby acknowledged, The said [surrenderor], by direction of the said [owner in fee], Hath surrendered and yielded up, and by these presents Doth surrender and yield up, unto the said [surrenderee] (37), All the said messuages, lands, tenements, hereditaments, and premises comprised in the said term of 1,000 years, created by the indenture first hereinbefore recited, and also comprised in the said reversionary term of 500 years created by the indenture lastly hereinbefore recited, Together with the rights, members, and appurtenances thereunto belonging; And all the estate, right, title, term, and interest of the said [surrenderor] therein and thereto; TO THE INTENT that the residue now unexpired of the said term of 1,000 years may merge in

sire to have the term of 1,000

TESTATUM.

Operative words.

Intent of surrender.

(37) Ante, n. 33.

surrenderor

the residue now unexpired of the said reversionary term of 500 years (38), and be thereby extinguished. And the said [sur- Covenant by renderor], for himself, his heirs, executors, and administrators, that he has not hereby covenants with the said [surrenderee], his executors, incumbered. administrators, and assigns, that the said [surrenderor] has not done or permitted any act, matter, or thing, by which, or by means of which, the surrender hereinbefore contained may be prevented from taking effect according to the true intent thereof. IN WITNESS &c.

(38) In order to merge the term, it should be surrendered to the immediate remainder-man or reversioner, whether freeholder or termor, and whether, if termor, his term be of longer or shorter duration than the term to be merged. Suppose the land were limited, first, to A. for 1,000 years; secondly, to B. for 500 years; thirdly, to C. for 600 years, and subject to these terms, to E. in fee, and it were wished to keep on foot the 500 years' term, and merge the rest, A. should surrender to B., and C. should surrender to E. Though it is generally desirable to keep on foot the elder term as a protection to the inheritance, yet the title may be so circumstanced as t render it expedient to confide in a term of later creation.

To whom the surrender of a term should be made.

At common law, every lease of land, or of any other corporeal heredita- Surrender, how ment, whether for life or for years, and whether created originally by deed made.

or by parol, might be surrendered verbally; (Prioress of Hallowell's case, Lib. Ass. anno 20, fol. 241, pl. 16; Perkins, sections 583, 584, 607, 608; Co. Litt. 338. a.; Sleigh v. Bateman, Cro. El. 487); and leases may now be surrendered by parol, i. e. without deed, provided there be a surrender in writing, signed by the surrenderor, or his agent authorized in writing, as required by the third section of the Statute of Frauds, in cases where the surrender is not by deed or by operation of law. (Farmer v. Rogers, 2 Wils. 26). At common law, a verbal assignment of a lease of things lying in livery, i. e. of land or other corporeal hereditaments, was sufficient. (Noke v. Awder, Cro. El. 373; and F. Moore, 419). It has been said, that, Assignment, since the Statute of Frauds, an assignment must be by deed. (2 Tho. Co. how made. Litt. 567. n.) But this is a mistake; the statute (sect. 3) requires not a deed, but a writing signed by the assignor, or by his agent, authorized in writing. Of things lying in grant both the original demise, (Bird v. Higginson, 2 Adol. & Ellis, 696; 4 Nev. & Mann. 505; 6 Nev. & Mann. 443, a), and every assignment of the lessee's interest, (Hewlins v. Shippam, 5 Barn. & Cress. 229, 230; Co. Litt. 85. a.), must be by deed.