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term by parol. Lyon v. Reed (1844) of such surrender by the lessor, a sur13 Mees. & W. 285, 153 Eng. Reprint, render by operation of law results. 118 (dictum).

The surrender is not, however, by It has been held, where the tenant virtue of the oral agreement; in fact, has not yet gone into possession of the a surrender by operation of law may leased premises, that the cancelation result without a prior oral agreement. and destruction of the lease, made These authorities take the broad view with the intention of both parties of that an oral agreement to surrender a terminating or canceling the tenancy, lease that has a term to run beyond is a valid surrender. Beidler v. Fish the period fixed by the Statute of (1883) 14 Ill. App. 29. It has also been Frauds is ineffectual for that purpose. held that an oil and gas lease under The courts holding that an executed which operations have not been begun oral agreement is a valid surrender of by the lessees, nor possession taken, a written lease have not, in all inmay be surrendered by parol. Hooks stances, stated what acts amount to v. Forst (1895) 165 Pa. 238, 30 Atl. an execution of the agreement. The 846, 18 Mor. Min. Rep. 139.

term itself, however, seems to include There is some divergence in the a surrender by the lessee and an aclanguage used by the courts in their ceptance by the lessor, with the intenstatements of the right to surrender tion of terminating the lease. Assuma written lease by parol. In actual re- ing this to be the sense in which the sult, however, the authorities are not term is used, the two theories arrive so far apart. The courts have viewed at the same result on the same state the question under annotation herein, of facts. A written lease is terminatin two aspects: (1) Whether a writ- ed by an actual surrender of the ten agreement may be terminated by premises, and an acceptance of such parol, and (2) whether the remain- surrender, with the intention of terder of the term created by the lease minating the lease. According to one may be surrendered by parol. The theory, this is a surrender by operacases warrant the following conclu- tion of law; according to the other, the sions: An executory oral agreement surrender is valid because the oral to surrender a written lease that has agreement is executed. See further as a term to run longer than that re- to this in last paragraph of the note. quired by the Statute of Frauds to be in writing is invalid. It is stated gen

II. General mule. erally in some cases that a written

a. In general. lease may be surrendered by parol, but

With the exception of some general upon examination it appears that the

statements broad enough to include an parol agreement was executed so that

executory agreement that will be the case falls within the class men

hereafter noticed (see infra, IV.), the tioned in the next paragraph. In

authorities that consider the fact that some cases it is held that a written

the agreement is executory hold that lease required by the Statute of

an oral executory agreement to surFrauds to be in writing cannot be sur

render a written lease for a term rerendered by an oral agreement, with

quired by the Statute of Frauds to be out mentioning anything as to its

in writing, or having such a term to character being executory or executed.

run, is invalid. Duncan v. Moloney The courts are not agreed, at least,

(1904) 115 Ill. App. 522; Leavitt v. not in language, as to the effect of the

Stern (1896) 159 Ill. 526, 42 N. E. 869; agreement being executed. Accord

Lewis v. Fish (1890) 40 Ill. App. 372; ing to the view taken by one line of

Churchill v. Lammers (1894) 60 Mo. authorities, if the agreement is ex- App. 244; Tobener v. Miller (1897) 68 ecuted it becomes legally effective as Mo. App. 569; Longacre v. Longacre a surrender. According to the other (1908) 132 Mo. App. 192, 111 S. W. line of authorities, if there is a sur- 855. render of the premises in pursuance of An executory agreement of a tenant the oral agreement, and an acceptance to surrender his term at a future date,


unaccompanied by any surrender of California.—Bonetti v. Treat (1891) the lease or term by the tenant, who 91 Cal. 223, 14 L.R.A. 151, 27 Pac. 612. continued to hold under the lease, does Indiana.—Heller v. Dailey (1901) not amount to a surrender. Duncan 28 Ind. App. 555, 63 N. E. 490; Burgett v. Moloney (Ill.) supra. It is not clear v. Loeb (1909) 43 Ind. App. 657, 88 whether the lease involved in Long- N. E. 346. acre v. Longacre (Mo.) supra, was in Maine.--Hesseltine v. Seavey (1839) writing, but apparently it was. An 16 Me. 212. oral agreement made between lessor

Maryland.—Lammott v. Gist (1828) and lessee that the lessee should sur- 2 Harr. & G. (Md.) 433, 18 Am. Dec. render possession at a stated time was 295. held invalid, and therefore the lessor Minnesota.—Stern v. Thayer (1894) could not maintain an action for un

56 Minn. 93, 57 N. W. 329. lawful detainer. The court states

Missouri.Churchill Lammers that possession is an interest in the

(1894) 60 Mo. App. 244; Tobener v. land itself, and a verbal agreement to

Miller (1897) 68 Mo. App. 569. surrender such possession is within

Nebraska.-Kittle v. St. John (1878) the Statute of Frauds, and not en

7 Neb. 73. forceable.

New Jersey.-Den ex dem. Mayberry Some of the foregoing cases in

v. Johnson (1835) 15 N. J. L. 116. volved sealed leases and it is held that

New York.-Rowan v. Lytle (1834) a lease under seal cannot be surrendered by an oral executory agreement:

11 Wend. (N. Y.) 116; Kelly v. Noxon -Leavitt v. Stern (1896) 159 Ill.

(1892) 64 Hun, 281, 18 N. Y. Supp. 526, 42 N. E. 869, holding that a lease

909; Ettlinger v. Kruger (1911) 146

App. Div. 824, 131 N. Y. Supp. 436; under seal cannot be canceled by a

Ogden v. Sanderson (1854) 3 E. D. parol agreement fourteen months before the end of the term created by it,

Smith (N. Y.) 166. and a new lease for a term of six years

Wisconsin.-Bailey v. Wells (1858)

8 Wis. 141, 76 Am. Dec. 233. created, the new lease being oral, and the agreement being that it should

England.—Johnstone v. Huddlestone take the place of the old lease. Ac

(1825) 4 Barn. & C. 922, 107 Eng. Recordingly, the landlord was held en

print, 1302, 7 Dowl. & R. 411, 4 L. J. titled to recover rent under the old

K. B. 71, 28 Revised Rep. 505, 15 Eng. lease;

Rul. Cas. 638; Matthews v. Sawell -Lewis v. Fish (1890) 40 Ill. App.

(1818) 8 Taunt. 270, 129 Eng. Reprint, 372, holding void an oral agreement to

387; Mollett v. Brayne (1809) 2 cancel a lease for a term of one year,

Campb. (Eng.) 103, 11 Revised Rep. made when the lease had still six

676; Thomson v. Wilson (1816) 2 months to run. The oral agreement

Starkie (Eng.) 379, 20 Revised Rep. was denied by the landlord; the tenant

696. claiming the existence of the oral Canada.–Ontario Industrial Loan & agreement moved out at the time Invest. Co. v. O'Dea (1895) 22 Ont. agreed upon, but this surrender of App. Rep. 349; Doe ex dem. Burr v. possession was not accepted by the Denison (1882) 8 U. C. Q. B. 185; Watlandlord. The court states that, as

son v. Moggey (1905) 15 Manitoba L. suming there was such an agreement,

R. 241 (obiter). it was void, because the terms of a

In Bonetti v. Treat (Cal.) supra, sealed instrument cannot be varied by

the tenant delivered the keys of the

house and surrendered the premises parol. It is the general theory of those

to the landlord, in pursuance of an cases that consider the question from agreement entered into between them, the standpoint of a surrender of the by which the tenant agreed to turn term, that an oral agreement of sur- over certain fixtures on the place and render of a written lease required by to pay in addition thereto a stated sum the Statute of Frauds to be in writ- of money. Upon failure to perform ing is invalid:

the condition, the landlord tendered

the keys back. The court, in denying 3 E. D. Smith (N. Y.) 166; Johnstone that there was a surrender of the v. Huddlestone (1825) 4 Barn. & C. lease, states that the surrender that 922, 107 Eng. Reprint, 1302, 7 Dowl. took place was conditional, and the

& R. 411, 4 L. J. K. B. 71, 28 Revised condition was never fulfilled, "nor was

Rep. 505, 15 Eng. Rul. Cas. 638 (surit in writing, as required by the Stat

render of a tenancy from year to ute of Frauds; therefore, such surren

year); Matthews v. Sawell (1818) 8 der did not operate as a dissolution of

Taunt. 270, 129 Eng. Reprint, 387; the tenancy." Accordingly, an action

Mollett v. Brayne (1809) 2 Campb. for rent by the landlord against the

(Eng.) 103, 11 Revised Rep. 676; tenant was sustained.

Thomson v. Wilson (1816) 2 Starkie In Burgett v. Loeb (1909) 43 Ind.

(Eng.) 379, 20 Revised Rep. 696; OnApp. 657, 88 N. E. 346, it was held that

tario Industrial Loan & Invest. Co. v. a lease for a period longer than that

O'Dea (1895) 22 Ont. App. Rep. 349; for which oral leases were valid could

Doe ex dem. Burr v. Denison (1882) not be surrendered by parol. Accord

8 U. C. Q. B. 185; Watson v. Moggey ingly, the landlord was held entitled to recover the rent from the lessee,

(1905) 15 Manitoba L. R. 241 (obiter). although he had vacated the premises.

In Matthews V. Sawell (1818) 8 It has been stated to be "sufficiently

Taunt. 270, 129 Eng. Reprint, 387, the plain that an interest in land lying

devisees of a lessor contracted to sell only in grant or a term, unless it be

the land covered by the lease, which for three years or less, cannot be sur

had three years to run. The purchasrendered by express contract; that is, er agreed with the lessee that the cannot be transferred or yielded up by

lessee should surrender possession, surrender in fact, without a writing possession was surrendered, and ansufficient for the conveyance of an in- other tenant put into possession by the terest in land greater than can be cre- lessee. Subsequently, the purchaser ated by parol." Heller V. Dailey became bankrupt and the purchase of (1901) 28 Ind. App. 555, 63 N. E. 490. the land was declared off, whereupon The lease involved in this case was an the devisees sued the original lessee oil and gas lease, which granted the oil

for rent for the remainder of the term. and gas in the land, and is stated not

In sustaining a recovery, the court to be in the form of a lease, but to be a

states that there was a parol surrengrant. The supreme court of Maine

der of the lease, and that such a surstates that, "since the Statute of

render is void under the Statute of Frauds, there is no doubt that a sur

Frauds. render of a lease can be legally proved only by deed or note in writing, or by

An oral agreement to surrender the act and operation of law." Hesseltine

balance of the term, which is accepted v. Seavey (1839) 16 Me. 212.

by the lessor in satisfaction of rent in This rule has been applied under

arrears and that to become due, is instatutes expressly providing that a

effective in an action for arrears in

rent, brought while the agreement is lease or term of years in lands shall

still executory. Lammott V. Gist not be surrendered except by deed or note in writing, or by operation of law.

(1828) 2 Harr. & G. (Md.) 433, 18 Am.

Dec. 295. A parol surrender of the lease is held ineffectual. Lammott v. Gist (1828) 2

The cancelation and destruction of Harr. & G. (Md.) 433, 18 Am. Dec.

a written lease by agreement of the 295; Den ex dem. Mayberry v. John

parties does not terminate the tenancy son (1835) 15 N. J. L. 116; Rowan v.

so as to entitle the lessor to recover, Lytle (1834) 11 Wend. (N. Y.) 116; in a possessory action against a subKelly v. Noxon (1892) 64 Hun, 281, 18

lessee, having possession of the premN. Y. Supp. 909; Ettlinger. v. Kruger ises. Rowan v. Lytle (1834) 11 Wend. (1911) 146 App. Div. 824, 131 N. Y. (N. Y.) 116. The parol surrender of Supp. 436; Ogden v. Sanderson (1854) the lease having conveyed nothing, the

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theory is that the lessor was not enti-, ute by failing to plead it in his reply, tled to possession, but such right was or to object to evidence tending to esstill in the lessee.

tablish the surrender. An oral agreement after the execu

In Goelet v. Ross (1862) 15 Abb. Pr, tion of a lease that either party might

(N. Y.) 251, where the lessees sought terminate it in case of dissatisfaction

to show, by parol evidence, conversa

tions between the parties to the lease, was held invalid, in Den ex dem. May

in which the lessor agreed, on pay. berry v. Johnson (1835) 15 N. J. L.

ment to him of the rent up to a stated 116. While this agreement did not

time, that he would release the lessees amount to a surrender, it is stated that

from further payment of rent and an existing lease for years can no

from all their obligations under the more be turned into a lease at will, lease, they to surrender and quit the than it can be assigned or surrendered premises, and that they had acted acby parol. A tenancy from year to year cordingly, a judgment was directed cannot be terminated by a parol li- for the lessor. The reason for the decense to quit, and a quitting by the cision, however, does not clearly aptenant in pursuance thereof. Mollett pear. v. Brayne (1809) 2 Campb. (Eng.) An obiter statement contained in 103, 11 Revised Rep. 676.

Watson v. Moggey (1905) 15 Manitoba An executory parol agreement to L. R. 241, is to the effect that an oral surrender a lease which has more than

surrender of a written lease is void. a year to run is invalid because of the Some cases deny the right to give Statute of Frauds. Kelly V. Noxon

any parol evidence "in respect to a (1892) 64 Hun, 281, 18 N. Y. Supp.

surrender of the leased premises” by 909. That an executory parol agree

lessee to lessor. Kittle v. St. John ment is ineffectual to surrender a writ

(1878) 7 Neb. 73; Bailey v. Wells ten lease is held also in Ogden v. San

(1858) 8 Wis. 141, 76 Am. Dec. 233.

In Kittle v. St. John (Neb.) supra, an derson (1854) 3 E. D. Smith (N. Y.)

action for rent under a lease for a 166.

term of five years, containing a proviIn Thomson v. Wilson (1816) 2

sion that the lessee might terminate. Starkie (Eng.) 379, 20 Revised Rep.

the lease at the end of the year by giv696, there was held to be no termina

ing six days' written notice, the lessee tion of a tenancy of several rooms in

answered, admitting the execution of the lessor's house, at a rent payable the lease and setting up as a defense quarterly, where the lessor and lessee

that he verbally notified the lessor that within the second quarter agreed to he wished to terminate the lease and terminate the tenancy, the lessor surrender the premises on a subseagreeing to receive rent in proportion quent date, that being the end of the to the part of the second quarter fourth year of the lease, and alleged which was then elapsed, but where that the lessor informed him that that the lessor refused to accept a tender was all right, and then and there of the key and a proportional part of

waived the service of a written notice. the quarter's rent, which was tendered The lessor in his reply denied that

he ever in any way him by the lessee, who had quitted the

consented to

received the surrender of the premises. That an oral agreement to surrender

premises, or that the defendant ever

surrendered the same by parol, or a term of more than a year is ineffec

otherwise. Whether the lessee had tual is recognized in Volkening v. Ray

delivered the possession of the premmond (1915) 91 Misc. 53, 154 N. Y.

ises is not clear, but apparently Supp. 145; but it is there held, in deny

he had. The court, after referring ing a recovery to the landlord who

to the provision of the lease that was suing for rent, that the landlord it might be terminated by a writhad waived the provision of the stat- ten notice, states that without any


such notice having been given, with- ing. The court states that when a out any release or reconveyance of the new lease of the premises is taken lessee's interest in the premises, the from the lessor, for the whole or a lessee offered parol testimony to prove part of the term embraced in the forma surrender of 'the estate to the er one, there is a surrender in law; lessor at the end of the fourth year, but there were no circumstances in and this testimony was admitted. The this case which authorized the precourt then refers to the provision of sumption that there had been a surthe Statute of Frauds that there shall render by operation of law, and the be no surrender of a lease of real es- court concludes that, if there had been tate, exceeding a term of one year, un- any surrender in fact, it could only be less by act or operation of law, or by done by some note or memorandum in a deed or conveyance in writing, and writing. concludes: “Therefore, all the parol The fact that an oral agreement of testimony offered by the defendant, in

surrender of a written lease, required respect to a surrender of the leased by the Statute of Frauds to be in writpremises by defendant to plaintiff, was ing, is invalid, does not, as pointed out incompetent, and in direct violation of in subd. III. hereof, prevent a surrenthe above statute.” In Wheeler V. der without a writing; a surrender Walden (1885) 17 Neb. 122, 22 N. W. may take place by operation of law, or, 346, where the lessee, in an action to according to the view of some cases, recover rent, pleaded a surrender of by an execution of the oral agreement. the premises, and sought to show an This question will be discussed in the oral agreement that the premises subdivision to which reference is should be surrendered, the trial court above made. excluded the evidence. Upon appeal,

b. Lease not required to be in writing. the supreme court, without referring to Kittle v. St. John (Neb.) supra,

If the lease is one not required to be states that "a surrender by operation

in writing, it may be surrendered

by parol (McDaniels v. Harrington of law, however, may be effective by

(1916) 80 Or. 628, 157 Pac. 1068; any agreement between the parties

M'Kinney v. Reader (1838) 7 Watts that the term shall be terminated,

(Pa.) 123 (dictum); Kiester v. Miller which is unequivocally acted upon by

(1854) 25 Pa. 481; Whelen v. Laird both." No statute is cited in the Wheeler Case. This case is cited with

(1914) 56 Pa. Super. Ct. 489), esapproval in the subsequent case of

pecially where the oral agreement is

immediately executed by an actual deBuffalo County Nat. Bank v. Hanson

livery of the possession in accordance (1892) 34 Neb. 455, 51 N. W. 1035. In Bailey v. Wells (Wis.) supra, the

with it (Greider's Appeal (1846) 5

Pa. 422; McDaniels v. Harrington facts are not clearly stated, but in the

(Or.) supra). pleading the lessee alleged that after the making of the lease, and entry

There is some language used by

Channell, J., in Fenner v. Blake [1900] upon the premises, and before any rent became due, he surrendered the

1 Q. B. (Eng.) 426, 82 L. T. N. S. 149,

69 L. J. Q. B. N. S. 257, 48 Week. Rep. lease and the premises to the lessor,

392, that indicates an opinion that the who accepted and received the same in

lease there involved could be modified full cancelation, release, and dis

by parol, since the tenancy was one charge of the lease. It was held in the

from year to year; but the actual decicase that the proposal to show by

sion in that case seems to have been parol testimony that there had been in

based on other grounds. See infra, fact an express surrender of the estate to the lessor was incompetent,

It has been held, however, that an and directly in violation of the Stat

agreement to accept the surrender of ute of Frauds, which declared that no even a parol lease must be in writing, estate or interest in land could be sur- under the Statute of Frauds. Logan rendered unless by act or operation of v. Barr (1847) 4 Harr. (Del.) 546. No law, or by deed or conveyance in writ- particular statute is referred to in the

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III. a.

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