Roe on the demise of the Earl of Berkeley against The Archbishop of York
| Jurisdiction | England & Wales |
| Judgment Date | 28 January 1805 |
| Date | 28 January 1805 |
| Court | Court of the King's Bench |
English Reports Citation: 102 E.R. 1219
IN THE COURT OF KING'S BENCH.
EOE ON THE DEMISE OF THE EARL OF BERKELEY against THE ARCHBISHOP OF york. Monday, Jan. 28th, 1805. The mere cancelling in fact of a lease is not a surrender of the term thereby granted within the Statute of Frauds, which requires such surrender to be by deed or note in writing, or by act or operation of law. Nor is a recital in a second lease, that it was granted in part consideration of the surrender of a prior lease of the same premises, a surrender by deed or note in writing of such prior lease, it not purporting in the terms of it to be of itself a surrender .or yielding up of the interest; though in some instances the acceptance of a second lease for part of the same term ...,': .{a) Howd. 355, 1220 ROE t . ARCHBISHOP OP , YORK 6 EAST, 87. before demised may be a surrender of such prior term by operation of law; and this, even though-the second lease be voidable, if it be not merely void. But where tenant for life with a special power of leasing reserving the best rent, in consideration (as recited) of the surrender of a prior term of 99 years, (of wxhich above 50 were unexpired,) and certain charges to be incurred by the tenant for repairs and improvements, &c. granted to him a new lease of the premises for 99 years by virtue of the power reserved to her, or any other power vested in, or in any wise belonging to her, which new lease was void by the power for want of reserving the best rent: Held; that the second lease, which was intended and expressly declared to be granted by virtue of and under the power, and being apparently not intended by the parties to be carved out of the estate for life of the lessor, being void under the power, should not operate in law as a surrender of the prior term, as passing an interest out of the life estate of the grantor, contrary to the manifest intent of the parties; and consequently that the prior term, though the indenture of lease were in fact cancelled and delivered up when the new lease was granted, might be set up by the tenant of the premises in bar to an ejectment by the remainder-man after the death of tenant for life; however such second lease might have operated by way of estoppel as against the lessor during her life. This ejectment was brought for a messuage and appurtenances in the parish of St. George, Hanover-Square, in the county of Middlesex; and at the trial before Lawrence J. at the sittings at Westminster a special verdict was found, stating in substance as follows : John Lord Berkeley of Stratton being seised in fee of the premises in question, by indenture dated the 19th of May 1743 demised the same to J. Lumley, his ^executors, &c. for a term of 98 years from Lady-Day 1741, at a yearly rent (after the first two years of the term) of 321. payable quarterly on the four most usual feast days, free of all taxes, &c. J. Lumley at the same time executed a counterpart of the indenture, and delivered it to Lord Berkeley. [87] By virtue of this demise y. Lumley entered into and was possessed of the premises; and afterwards assigned the term for a valuable consideration to the archbishop, the defendant. John Lord Berkeley, by his will dated the 21st of May 1772, devised the reversion of the premises to the use of Mrs. Anne Egerton and her assigns for her life, or till she should marry; and after several intermediate remainders, remainder to the use of the lessor of the plaintiff for life, with other remainders over. The will also contained a power to the several tenants for life, when they should be respectively in the actual possession of the messuages, lands, &c. devised to them, to lease the same by indenture to any person who should be willing to build or to repair any of the same messuages, for any term of years not exceeding 99 years in possession, but not in reversion or by way of future interest, so as upon every such lease there should be reserved the best and most improved yearly rent that at the time of making thereof could be reasonably had or gotten for the same, without takiiig any fine or income for making any such lease; and so as in every such lease there should be contained the like clauses, covenants, and agreements as were usual in building or repairing leases. John Lord-Berkeley died without altering or revoking his will. And on the 14th of May 1784, Mrs. Anne Egerton, being by virtue of the said devise seised for life of the reversion and freehold of the premises in question, executed a certain indenture of that date, whereby it was witnessed that for and in consideration of the surrender of the said first-mentioned indenture, and also in consideration of the great charges and expences-wlich the said archbishop had been and might be at in repairing and improving the said premises, and of the rent and covenants therein reserved and contained, and thereby covenanted to be paid and performed [88] on the part of the said archbishop, his executors, &c. she the said Anne Egerton, by virtue and in execution of the power and authority therein stated to be given and reserved to her in and by the said will of John Lord Berkeley of Stratton, deceased, or any other power in the said Anne vested, or to her in any wise belonging, demised the said premises to the said archbishop, his executors,'&c. habendum, &c. from Lady-Day then last, for the term of 99 years, at the'yearly rent of 361, 4s. payable quarterly, and clear of all taxes, &c., payable to her for her life; and after her decease to those in remainder during the term. The archbishop accepted the last-mentioned lease, and executed a counterpart 6 EAST, 89. ROB V. ARCHBISHOP OF YORK 1221 thereof by signing and sealing the same; and at the time of the execution of the said last-mentioned lease, the said first-mentioned lease, and the counterpart thereof were cancelled and exchanged, i.e. the original lease was cancelled and delivered by the archbishop to Mrs. Anne Egerton, and now remains cancelled in the hands of the said earl, and the counterpart thereof was cancelled and delivered by Mrs. Anne Egertorf to, and now remains cancelled in the hands of the archbishop. The jury then found that the indenture of the 14th of May 1784 was not a lease warranted by the said power in the will of John Lord Berkeley of Stratton, the rent reserved thereon not being the best that could be gotten, according to the terms of the power. In May 1803 Mrs. Anne Egerton died. The special verdict then stated the entry of the lessor of the plaintiff, the eviction of the defendant, and the demise, &c. But whether, &c. This case was argued in Trinity term 'last by Freere for the plaintiff, and Holroyd for the defendant; and again in Michaelmas term last by Bayley Serjt. for the plaintiff, and Gribbs for the defendant. [89] Arguments for the plaintiff. The second lease having been granted by Mrs. Egerton, the tenant for life, in consideration of the surrender of the first, and the second lease being void under the power for want of reserving the best rent, the question is, whether after the death of Mrs. Egerton the original lease can be considered as subsisting, and be set up again against the remainder-man, or whether it must not be considered as destroyed by what took place when the new lease was granted? First, there was a legal and valid surrender of the original lease in fact, and not contravening the Statute of Frauds (a)1. Secondly, it was surrendered in law. 1. There was a direct cancellation of it in fact. If an action had been brought on it there must either have been a profert, or an excuse for not making one, by stating that it had been cancelled and delivered up by mistake. But there could have been no profert, because it was cancelled and delivered up: and no such excuse could have been made, because it might have been shewn that the archbishop gave up the first lease with full notice that Mrs. Egerton had only a power to lease reserving the best rent, and that she had not imposed upon him. The only cases where cancellation has been holden not to avoid an instrument have been where it has been done by accident, and not by design, as here. Here there was the animus eancellandi. Even before the Statute of Frauds there could be no surrender of a thing lying in grant except by deed (J)1, yet it was always considered that the cancelling of a lease of a thing lying in grant was evidence of a surrender. So the production of a cancelled instrument of a thing lying in livery must be evidence of a surrender since the statute. And this is not contradicted [90] by the case of Magennis v. M'Culloch (of, because equity would set it up again. [Lord Ellenborough C.J. The opinion of Ld. C. B. Gilbert in that case was express, that since the statute a lease for years could not be surrendered by cancelling the indenture without writing : and that was an opinion judicially delivered by him, subsequent probably to the treatise written by him: There is another case of Leech v. Leech, 2 Chan. Rep. 100 (5)2, where an estate before granted by deed was holden not to be deyested by cancelling the instrument.] At any rate, the second lease, reciting that the first was surrendered, is a "note in writing, signed by the party," within the statute. And that agrees with Ld. C. B. Gilbert's opinion in Magennis v...
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