Plowd. 541.

Cro. Eliz. 156..

12. To make a surrender good, there must be a privity of estate between the surrenderor and the surrenderee. Thus if a tenant for 30 years makes a lease for 10 years, and the lessor and lessee join in a surrender to the person in reversion in fee, the surrender is good for both the estates; yet the lessee for 10 years could not surrender by himself for want of privity; but when the other joined with him, his surrender shall be taken in law to precede, and the surrender of the lessee for 10 years, to follow; so that the same shall be good.

13. An estate at will is not surrenderable, because 12 Mod. 79. it is at the will of both parties; and either party may determine his will, without the formality of a surrender.

Hughes v. Robotham, Cro. Eliz. 302.

Lease, § 2.

14. It was formerly doubted whether a lessee for years could surrender to a person who had the reversion only for years; but this point appears to have been settled by a determination in 35 Eliz., in which it was laid down, 1. That if the term in reversion be greater than the term in possession, the lesser will Poph. 31. Bac. Ab. Tit. merge in the greater; as ten years may be surrendered and merge in twelve or fourteen years. 2. That though the reversion be for a less number of years, yet the surrender will be good, and the first term merged: as if one were lessee for 20 years, and the reversion expectant thereon was granted to another for a year, who granted it over to the lessee for 20 years, this would operate as a surrender of the 20 years term, as if he had taken a new lease from his lessor for one year for the reversionary interest coming to the possession, drowns it; and the number of years is not material; for as he may surrender to him who hath the reversion in fee, so he may to him who hath the reversion for any less term. And therefore Popham held,

that where lessee for 20 years makes a lease for 10
years, and the lessee for 10 years surrenders to his
lessor, viz. the lessee for 20 years, this is good; and
the lessor shall have so many of the years as were then
to come of his former term of 20 years; that is, as it
seems, so many years as were to come of his reversion
shall be now changed into possession. And he held
further, that if such lessee for 20 years had made such
lease for 10 years, and then granted over the rever-
sion for 10 years only, viz. no longer than the lease
for 10 years was to continue, and such lessee for 10
years had attorned, then the grantee of the reversion
should have the rent and services, and the grantor the
residue of the 20 years. And that the lessee for 10
years might surrender to the grantee of the reversion
for 10 years; and he thereby would have the pos-
session for so many years as were then to come of his
reversion. And if he had a less term in the rever-
sion, than the lessee himself had in the possession, it
'should go to the benefit of the first termor for 20
years, who was his grantor: for the term in posses-
sion was quite gone, and drowned in the reversion, to
the benefit of those who had the reversion there-
upón, having regard to their estate in reversion, and
"not otherwise.

15. An assignment is properly a transfer of some Assignment. particular estate or interest in lands; but is usually applied to the transfer of a term for years. It differs from a derivative lease only in this circumstance; that by such a lease, the lessor conveys an interest less than his own, reserving to himself a reversion : whereas, in an assignment, the assignor parts with his whole interest in the thing assigned, and puts the assignee in his place.

Pulteney v.
Holmes,
Stra. 405.

16. Where a person transfers all his term to another, but reserves rent to himself, this is not an assignment, but an underlease.

17. A. having a term for years, whereof one year and three quarters was to come, agreed with B. that he should have the premises for the remainder of the term, paying the same rent to A. as was reserved Doug. 187. n. upon the original lease. It was held, that this was an underlease, and not an assignment.

Palmer v.
Edwards,

1 Mod. 263.

Must be by
Deed or Note

in Writing.

ante, c. 3.

2.

Hodges v.
Drakeford,

1 Bos.& Pull.

n. s. 270.

What may be
assigned.
Perk. § 91.
1 Inst. 46 b.

18. The proper technical words of an assignment are, assign, transfer, and set over. But the words give, grant, bargain, and sell; or any other words which show the intent of the parties to make a complete transfer, will amount to an assignment.

19. No consideration is necessary to support an assignment of a term for years; for the tenure, attendance, and subjection to forfeiture, as also the payment of the rent, if there be any, is sufficient to vest the term in the assignee.

20. Previous to the statute of frauds and perjuries, all chattels real might have been assigned by parol only. But it is enacted by the statute, that all assignments of leases or terms for years shall be by deed or note in writing, signed by the party assigning, or his agent, thereunto lawfully authorized by writing.

21. Every estate and interest in lands and tenements may be assigned; as also every present and certain estate or interest in incorporeal hereditaments; such as rents, advowsons, &c. Even though the interest be future, as a term for years to commence at a subsequent period, yet it may be assigned; for the interest is vested in præsenti, though only to take effect in futuro.

22. It should however be observed, that no right Lit. § 347. of entry or re-entry can be assigned; so that if a person be disseised, and afterwards assign over his right to another, before he has entered on the disseisor, such assignment is void. Lord Coke says, this doctrine is 1 Inst. 214 a. founded on a principle of the common law, that nothing in action, entry, or re-entry, can be granted over. For, under colour thereof, pretended titles might be granted to great men, whereby right might be trodden down, and the weak oppressed. But choses in action are assignable in equity, as will be shown in the next chapter.

23. A naked power is not assignable: where it is coupled with an interest, it may be assigned; as where a lease was made, with power to the lessor, his heirs and assigns, to cut down and sell trees; this power was held to be assignable.

Warren v.
Arthur,
2 Mod. 317.

24. It is said by Mr. Fearne that an assignment of Ex. Dev.527. a contingent interest, even in lands of inheritance, for a valuable consideration, may be carried into execution by the Court of Chancery; upon the ground of its being such a contract or agreement as the Court may think fit to decree a specific performance of.

25. A defeazance is a collateral deed, made at Defeazance. the same time with a feoffment or grant, containing certain conditions, upon the performance of which the estate created by such feoffment or grant may be defeated. The word is derived from the French word defaire, to defeat or undo, infectum reddere quod factum est. A defeazance, executed at the same time 1 Inst. 236 b. with a feoffment, was considered as a part of it, and therefore allowed; but no subsequent secret revo- Tit. 13. c. 1. cation of a solemn conveyance, executed by livery of seisin, was formerly permitted.

1 Inst. 237 a.

Tit. 13. § 1.

Touch. 397.

26. As to things that were merely executory, or to be completed by matter subsequent, as rents, conditions, warranties, &c., they were always liable to be avoided by a defeazance, made subsequent to the time of their creation.

27. The difference between a defeazance and a condition is, that a condition is inserted in the deed by which the estate is created. A defeazance is a separate deed, executed at the same time with the original deed.

28. A defeazance must be made in eodem modo, and by matter as high as the thing to be defeated: so that if the one be by deed, the other must be so also. Where the defeazance recites the deed which it is meant to defeat, as it always does, it must recite it truly.