Thompson against Leach
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1793 |
| Date | 01 January 1793 |
| Court | High Court |
English Reports Citation: 87 E.R. 196
COURTS OF KING'S BENCH, CHANCERY, COMMON PLEAS, EXCHEQUER.
Approved, Thomson v. Tickell, 1819, 3 B. & Ald. 31. Referred to, Siggers v. Evans, 1855, 24 L. J. Q. B. 305. Considered, Peacock v. Eastland, 1870, L. R. 10 Eq. 20. Applied, Standing v. Bowring, 1885, 31 Ch. 286. Discussed, Mallott v. Wilson [1903], 2 Ch. 500.
196 TRINITY TERM, 2 WILLIAM AND MARY. IN B. B. 3 MOD. 296. [296] case 193. thompson against leach. [Approved, Townson v. Tickell, 1819, 3 B. & Aid. 31. Heferred to, Siggers v. Evans, 1855, 24 L. J. Q. B. 305. Considered, Peacock v. Hastland, 1870, L. it. 10 Eq. 20. Applied, Standing v. Bowring, 1885, 31 Ch. D. 286. Discussed, Mallott v. Wilson [1903], 2 Ch. 500.] A. being tenant for life, with remainders to his first and other sons, remainder to B. in tail, executes a deed without the knowledge and assent of B. and before a sou is born, by which he surrenders the estate to B. ; A. continues in possession until after the birth of a son, and then agrees to the surrender, enters upon the estate, and suffers a recovery.-This surrender by the tenant for life immediately vests the estate in the remainder-man in tail, and thereby destroys the contingent remainders to the first and other sons of A.; the actual assent of the surrenderee, not being necessary to the perfection of the surrender; for that shall be presumed, unless his dissent appears.-S. C. 2 Vent. 198, 205. S. C. 1 Show. 297. S. C. 3 Lev. 284. 2 Roll Abr. 418, 793. 1 Co. 66, 137. Moor, 554. 2 Lev. 39. 4 Mod. 284. 2 Saund. 380. Comyns, 45. 1 Burr. 124. Fearne C. E. 467, 469. Dougl. 139. Writ of error upon a judgment in ejectment given in the Common Pleas. The case upon the special verdict wus thus: Simon Leach was tenant for life of the lands in question, with remainder in contingency to his first, second, and third son in tail male; remainder to Sir Simon Leach in tail, &c. This settlement was made by the will of Nicholas Leach, who was seised in fee. The tenant for life, two months before he had a son born, did in the absence of Sir Simon Leach, the remainder man in tail, seal and deliver a writing, by which he did "grant, surrender, and release" the lands which he had for life, to the use of Sir Simon Leach and his heirs, and continued in possession five years afterwards; and then, and not before, Sir Simon Leach did accept and agree to this surrender, and entered upon the premisses. But about four years before he thus agreed to it, Simon Leach, the tenant for life, had a son born named Charles, lessor of the plaintiff, to whom the remainder in contingency was thus limited. The tenant for life died; and then Sir Simon Leach suffered a common recovery in order to bar those remainders. The questions were, First, whether this was a legal and good surrender of the premisses, to vest the freehold immediately in Sir Simon Leach, without his assent, before Charles Leach the son of Simon Leach the surrenderor was born, so as to make him a good tenant to the prcecipe, upon which the recovery was afterwards suffered1? If so, then the contingent remainders to the first and other sons is destroyed. Secondly, if the estate was not vested in the surrenderee till his actual assent, such assent aball not relate (though after the execution of the deed) so as to pass the estate at the very time it was sealed and delivered 1 Judgment being given in the Common Pleas, by the opinion of three justices, against Ventris, Justice, that the contingent remainder was not destroyed by this surrender, because it was not good without the acceptance, and till the actual assent of the surrenderee; This writ of error was now brought upon that judgment. [297] This case depended several terms, and those who argued to maintain the judgment insisted, that here was neither a mutual agreement between the parties, nor acceptance nor entry of the surrenderee, which must be in every surrender, these being solemn acts required, in such cases, to the alteration of possessions, and to prevent frauds. That the law has a greater regard to the transmutation of possessions, than to the alteration of personal things, and therefore more ceremonies are made requisite to that, than to transfer a chattel from one to another. In all feoffments there must be livery and seisin : so in partitions and in exchanges, which are conveyances at the common law, no estate is changed until an actual entry, though in the deed itself such entry is fully expressed (a). Here the surrenderee is a purchaser of the estate, and (a) Quaere; for if tenant for life surrender to him in reversion, the surrenderee hath a freehold in law in him before entry, Co. Lit. 266 b.-Note to the former Edition. SHOD. 298. TRINITY TERM, 2 WILLIAM AND MARV. IN B. R. 197 yet did not know any thing of it, than which nothing can be more absurd. It is admitted, that every gift and grant enures to the benefit of the donee and grantee, but not where the assent of the parties is required to complete the act. Assent and dis-assent are acts of the mind: now it is impertinent to say that a man gave his assent to a thing which he never heard. A lease for years is not good without entry, nor a surrender without acceptance (a). It is no new thing to compare a surrender to the resignation of a benefice: now if an incumbent should resign to the Ordinary, and the patron should afterwards present to that living, such presentation is void, if the Ordinary had not accepted the resignation (b): the reason is, because a resignation does not pass the freehold to the bishop, but puts it only in abeyance till his acceptance; and it is not an objection to say that this is grounded upon an ecclesiastical right, and not at the common law, or that aformedon will not lie of a rectory; for though it is of ecclesiastical right, yet it is of temporal cognizance, and shall be tried at law. The precedent in Rastal (c) may be objected, where the surviving lessee for years brought an action of covenant against the lessor, for disturbing of him in his possession, and the lessor pleaded a surrender to himself without an acceptance; but the plaintiff, in that case, said nothing of a surrender (d). In the same book a surrender was pleaded ad quam quidem mirsum redditionem the plaintiff agreavit: so in Fitzherbert's Abridgment issue was joined upon the acceptance, which shews it is a material point. [298] No inconvenience can be objected, that an assent is made a legal ceremony to a surrender, for it is not inconvenient even in the case of an infant, who, by reason of his non-age, is not capable to take such a conveyance, because he cannot give his assent, but he may take the land by way of feoffmeiit, or grant, or any conveyance of like nature, without his assent. By the very definition of a surrender, it plainly appears that there must be an assent to it; for it is nothing else but a yielding up of an estate to him who has the immediate reversion or remainder, wherein the estate for life or years may drown by mutual agreement between the parties (). It is true, an agreement is not necessary in devises, nor in any other conveyances which are directed by particular statutes, or by custom ; but it is absolutely necessary in a surrender, which is a conveyance at the common law. It is such an essential circumstance, that the deed itself is void without it; it is as necessary as an attorn-ment to the grant of a reversion, or an entry to a deed of exchange, which are both likewise conveyances at the common law. There are various circumstances in the books(/) which declare what acts shall amount to an acceptance or agreement; but it was never yet doubted, but that an acceptance was necessary to a surrender. So in the entries (a), a surrender is sometimes pleaded without an acceptance; but it is always that the surrenderee, by virtue of the surrender, expulit et ejeeii the plaintiff, which amounts to an agreement. The law is so careful in these conveyances, that it will not presume an assent without some act done (6); if therefore a deed cannot operate as a surrender without an acceptance, then in this case no such shall be presumed, because the jury have found it expressly otherwise. Then by the birth of Charles Leach, the contingent remainder is vested in him, which arising before the assent of the surrenderee, makes such assent afterwards void, for there can be no intermediate estata Besides, if an assent should not be necessary to a surrender, this inconvenience would follow, viz. if a purchaser should take in several mortgages and extents, and keep them all on foot in a third person's name (which is usual) to (a) Lane, 4. 3 Co. 43. (4) Cro. Jac. 198. Dyer, 294. Brook's Abr. title, "Bar," 81. Yelv. 61. 1 Sid. 387. (c) Rastal's Entries, title, "Covenant," 136. (d) Owen, 97. Dyer, 23. Eastal's Ent. tit. "Debt," 183, 176, 177. Brooke Abr. tit. "Surrender," 39. Cro. Car. 101. Fitz. Abr. "Bar," 262. Coke's Ent. 335. () Co. Lit. 337. Bro. Abr. "Surrender," pi. 45. Dyer, 110. Fitz. Abr. 39. 2 Vent. 206. Perkins, s. 584. 3 Bac. Abr. "Leases," 457. (/) Cro. Eliz. 488. Owen, 97. 31 Assize, pi. 26. (a) Fitz. Abr. title, "Debt," 149. Year Book 9 Edw. 3, pi. 7; but see Rastal's Entries, 136, contra. (b) Keilway, 194. Dyer, 358, pi. 48. 198 TRINITY TERM, 2 WILLIAM AND MARY...
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