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term by parol. Lyon v. Reed (1844) 13 Mees. & W. 285, 153 Eng. Reprint, 118 (dictum).

It has been held, where the tenant has not yet gone into possession of the leased premises, that the cancelation and destruction of the lease, made with the intention of both parties of terminating or canceling the tenancy, is a valid surrender. Beidler v. Fish (1883) 14 Ill. App. 29. It has also been held that an oil and gas lease under which operations have not been begun by the lessees, nor possession taken, may be surrendered by parol. Hooks v. Forst (1895) 165 Pa. 238, 30 Atl. 846, 18 Mor. Min. Rep. 139.

There is some divergence in the language used by the courts in their statements of the right to surrender a written lease by parol. In actual result, however, the authorities are not so far apart. The courts have viewed the question under annotation herein, in two aspects: (1) Whether a written agreement may be terminated by parol, and (2) whether the remainder of the term created by the lease may be surrendered by parol. The cases warrant the following conclusions: An executory oral agreement to surrender a written lease that has a term to run longer than that required by the Statute of Frauds to be in writing is invalid. It is stated generally in some cases that a written lease may be surrendered by parol, but upon examination it appears that the parol agreement was executed so that the case falls within the class mentioned in the next paragraph. In some cases it is held that a written lease required by the Statute of Frauds to be in writing cannot be surrendered by an oral agreement, without mentioning anything as to its character being executory or executed.

The courts are not agreed, at least, not in language, as to the effect of the agreement being executed. According to the view taken by one line of authorities, if the agreement is executed it becomes legally effective as a surrender. According to the other line of authorities, if there is a surrender of the premises in pursuance of the oral agreement, and an acceptance

of such surrender by the lessor, a surrender by operation of law results. The surrender is not, however, by virtue of the oral agreement; in fact, a surrender by operation of law may result without a prior oral agreement. These authorities take the broad view that an oral agreement to surrender a lease that has a term to run beyond the period fixed by the Statute of Frauds is ineffectual for that purpose. The courts holding that an executed oral agreement is a valid surrender of a written lease have not, in all instances, stated what acts amount to an execution of the agreement. The term itself, however, seems to include a surrender by the lessee and an acceptance by the lessor, with the intention of terminating the lease. Assuming this to be the sense in which the term is used, the two theories arrive at the same result on the same state of facts. A written lease is terminated by an actual surrender of the premises, and an acceptance of such surrender, with the intention of terminating the lease. According to one theory, this is a surrender by operation of law; according to the other, the surrender is valid because the oral agreement is executed. See further as to this in last paragraph of the note.

II. General rule.

a. In general.

With the exception of some general statements broad enough to include an executory agreement that will be hereafter noticed (see infra, IV.), the authorities that consider the fact that the agreement is executory hold that an oral executory agreement to surrender a written lease for a term required by the Statute of Frauds to be in writing, or having such a term to run, is invalid. Duncan v. Moloney (1904) 115 Ill. App. 522; Leavitt v. Stern (1896) 159 Ill. 526, 42 N. E. 869; Lewis v. Fish (1890) 40 Ill. App. 372; Churchill v. Lammers (1894) 60 Mo. App. 244; Tobener v. Miller (1897) 68 Mo. App. 569; Longacre v. Longacre (1908) 132 Mo. App. 192, 111 S. W. 855.

An executory agreement of a tenant to surrender his term at a future date,

unaccompanied by any surrender of the lease or term by the tenant, who continued to hold under the lease, does not amount to a surrender. Duncan v. Moloney (Ill.) supra. It is not clear whether the lease involved in Longacre v. Longacre (Mo.) supra, was in writing, but apparently it was. An oral agreement made between lessor and lessee that the lessee should surrender possession at a stated time was held invalid, and therefore the lessor could not maintain an action for unlawful detainer. The court states that possession is an interest in the land itself, and a verbal agreement to surrender such possession is within the Statute of Frauds, and not enforceable.

Some of the foregoing cases involved sealed leases and it is held that a lease under seal cannot be surrendered by an oral executory agreement:

-Leavitt v. Stern (1896) 159 III. 526, 42 N. E. 869, holding that a lease under seal cannot be canceled by a parol agreement fourteen months before the end of the term created by it, and a new lease for a term of six years created, the new lease being oral, and the agreement being that it should take the place of the old lease. Accordingly, the landlord was held entitled to recover rent under the old lease;

-Lewis v. Fish (1890) 40 Ill. App. 372, holding void an oral agreement to cancel a lease for a term of one year, made when the lease had still six months to run. The oral agreement was denied by the landlord; the tenant claiming the existence of the oral agreement moved out at the time agreed upon, but this surrender of possession was not accepted by the landlord. The court states that, assuming there was such an agreement, it was void, because the terms of a sealed instrument cannot be varied by parol.

It is the general theory of those cases that consider the question from the standpoint of a surrender of the term, that an oral agreement of surrender of a written lease required by the Statute of Frauds to be in writing is invalid:

California.-Bonetti v. Treat (1891) 91 Cal. 223, 14 L.R.A. 151, 27 Pac. 612.

Indiana.-Heller v. Dailey (1901) 28 Ind. App. 555, 63 N. E. 490; Burgett v. Loeb (1909) 43 Ind. App. 657, 88 N. E. 346.

Maine. Hesseltine v. Seavey (1839) 16 Me. 212.

Maryland.-Lammott v. Gist (1828) 2 Harr. & G. (Md.) 433, 18 Am. Dec. 295.

Minnesota.-Stern v. Thayer (1894) 56 Minn. 93, 57 N. W. 329.

Missouri.-Churchill v. Lammers (1894) 60 Mo. App. 244; Tobener v. Miller (1897) 68 Mo. App. 569. Nebraska.-Kittle v. St. John (1878) 7 Neb. 73.

New Jersey. Den ex dem. Mayberry v. Johnson (1835) 15 N. J. L. 116.

New York.-Rowan v. Lytle (1834) 11 Wend. (N. Y.) 116; Kelly v. Noxon (1892) 64 Hun, 281, 18 N. Y. Supp. 909; Ettlinger v. Kruger (1911) 146 App. Div. 824, 131 N. Y. Supp. 436; Ogden v. Sanderson (1854) 3 E. D. Smith (N. Y.) 166.

Wisconsin.-Bailey v. Wells (1858) 8 Wis. 141, 76 Am. Dec. 233.

England.-Johnstone v. Huddlestone (1825) 4 Barn. & C. 922, 107 Eng. Reprint, 1302, 7 Dowl. & R. 411, 4 L. J. K. B. 71, 28 Revised Rep. 505, 15 Eng. Rul. Cas. 638; Matthews v. Sawell (1818) 8 Taunt. 270, 129 Eng. Reprint, 387; Mollett v. Brayne (1809) 2 Campb. (Eng.) 103, 11 Revised Rep. 676; Thomson v. Wilson (1816) 2 Starkie (Eng.) 379, 20 Revised Rep. 696.

Canada.-Ontario Industrial Loan & Invest. Co. v. O'Dea (1895) 22 Ont. App. Rep. 349; Doe ex dem. Burr v. Denison (1882) 8 U. C. Q. B. 185; Watson v. Moggey (1905) 15 Manitoba L. R. 241 (obiter).

In Bonetti v. Treat (Cal.) supra, the tenant delivered the keys of the house and surrendered the premises to the landlord, in pursuance of an agreement entered into between them, by which the tenant agreed to turn over certain fixtures on the place and to pay in addition thereto a stated sum of money. Upon failure to perform the condition, the landlord tendered

the keys back. The court, in denying that there was a surrender of the lease, states that the surrender that took place was conditional, and the condition was never fulfilled, "nor was it in writing, as required by the Statute of Frauds; therefore, such surrender did not operate as a dissolution of the tenancy." Accordingly, an action for rent by the landlord against the tenant was sustained.

In Burgett v. Loeb (1909) 43 Ind. App. 657, 88 N. E. 346, it was held that a lease for a period longer than that for which oral leases were valid could not be surrendered by parol. Accordingly, the landlord was held entitled to recover the rent from the lessee, although he had vacated the premises.

It has been stated to be "sufficiently plain that an interest in land lying only in grant or a term, unless it be for three years or less, cannot be surrendered by express contract; that is, cannot be transferred or yielded up by surrender in fact, without a writing sufficient for the conveyance of an intèrest in land greater than can be created by parol." Heller v. Dailey (1901) 28 Ind. App. 555, 63 N. E. 490. The lease involved in this case was an oil and gas lease, which granted the oil and gas in the land, and is stated not to be in the form of a lease, but to be a grant. The supreme court of Maine states that, "since the Statute of Frauds, there is no doubt that a surrender of a lease can be legally proved only by deed or note in writing, or by act and operation of law." Hesseltine V. Seavey (1839) 16 Me. 212.

This rule has been applied under statutes expressly providing that a lease or term of years in lands shall not be surrendered except by deed or note in writing, or by operation of law. A parol surrender of the lease is held ineffectual. Lammott v. Gist (1828) 2 Harr. & G. (Md.) 433, 18 Am. Dec. 295; Den ex dem. Mayberry v. Johnson (1835) 15 N. J. L. 116; Rowan v. Lytle (1834) 11 Wend. (N. Y.) 116; Kelly v. Noxon (1892) 64 Hun, 281, 18 N. Y. Supp. 909; Ettlinger. v. Kruger (1911) 146 App. Div. 824, 131 N. Y. Supp. 436; Ogden v. Sanderson (1854)

3 E. D. Smith (N. Y.) 166; Johnstone v. Huddlestone (1825) 4 Barn. & C. 922, 107 Eng. Reprint, 1302, 7 Dowl. & R. 411, 4 L. J. K. B. 71, 28 Revised Rep. 505, 15 Eng. Rul. Cas. 638 (surrender of a tenancy from year to year); Matthews v. Sawell (1818) 8 Taunt. 270, 129 Eng. Reprint, 387; Mollett v. Brayne (1809) 2 Campb. (Eng.) 103, 11 Revised Rep. 676; Thomson v. Wilson (1816) 2 Starkie (Eng.) 379, 20 Revised Rep. 696; Ontario Industrial Loan & Invest. Co. v. O'Dea (1895) 22 Ont. App. Rep. 349; Doe ex dem. Burr v. Denison (1882) 8 U. C. Q. B. 185; Watson v. Moggey (1905) 15 Manitoba L. R. 241 (obiter).

In Matthews v. Sawell (1818) 8 Taunt. 270, 129 Eng. Reprint, 387, the devisees of a lessor contracted to sell the land covered by the lease, which had three years to run. The purchaser agreed with the lessee that the lessee should surrender possession, possession was surrendered, and another tenant put into possession by the lessee. Subsequently, the purchaser became bankrupt and the purchase of the land was declared off, whereupon the devisees sued the original lessee for rent for the remainder of the term. In sustaining a recovery, the court states that there was a parol surrender of the lease, and that such a surrender is void under the Statute of Frauds.

An oral agreement to surrender the balance of the term, which is accepted by the lessor in satisfaction of rent in arrears and that to become due, is ineffective in an action for arrears in rent, brought while the agreement is still executory. Lammott v. Gist (1828) 2 Harr. & G. (Md.) 433, 18 Am. Dec. 295.

The cancelation and destruction of a written lease by agreement of the parties does not terminate the tenancy so as to entitle the lessor to recover, in a possessory action against a sublessee, having possession of the premises. Rowan v. Lytle (1834) 11 Wend. (N. Y.) 116. The parol surrender of the lease having conveyed nothing, the

theory is that the lessor was not entitled to possession, but such right was still in the lessee.

An oral agreement after the execution of a lease that either party might terminate it in case of dissatisfaction was held invalid, in Den ex dem. Mayberry v. Johnson (1835) 15 N. J. L. 116. While this agreement did not amount to a surrender, it is stated that an existing lease for years can no more be turned into a lease at will, than it can be assigned or surrendered by parol. A tenancy from year to year cannot be terminated by a parol license to quit, and a quitting by the tenant in pursuance thereof. Mollett v. Brayne (1809) 2 Campb. (Eng.) 103, 11 Revised Rep. 676.

An executory parol agreement to surrender a lease which has more than a year to run is invalid because of the Statute of Frauds. Kelly v. Noxon (1892) 64 Hun, 281, 18 N. Y. Supp. 909. That an executory parol agreement is ineffectual to surrender a written lease is held also in Ogden v. Sanderson (1854) 3 E. D. Smith (N. Y.) 166.

In Thomson v. Wilson (1816) 2 Starkie (Eng.) 379, 20 Revised Rep. 696, there was held to be no termination of a tenancy of several rooms in the lessor's house, at a rent payable quarterly, where the lessor and lessee within the second quarter agreed to terminate the tenancy, the lessor agreeing to receive rent in proportion to the part of the second quarter which was then elapsed, but where the lessor refused to accept a tender of the key and a proportional part of the quarter's rent, which was tendered him by the lessee, who had quitted the premises.

That an oral agreement to surrender a term of more than a year is ineffectual is recognized in Volkening v. Raymond (1915) 91 Misc. 53, 154 N. Y. Supp. 145; but it is there held, in denying a recovery to the landlord who was suing for rent, that the landlord had waived the provision of the stat

ute by failing to plead it in his reply, or to object to evidence tending to establish the surrender.

In Goelet v. Ross (1862) 15 Abb. Pr. (N. Y.) 251, where the lessees sought to show, by parol evidence, conversations between the parties to the lease, in which the lessor agreed, on payment to him of the rent up to a stated time, that he would release the lessees from further payment of rent and from all their obligations under the lease, they to surrender and quit the premises, and that they had acted accordingly, a judgment was directed for the lessor. The reason for the decision, however, does not clearly appear.

An obiter statement contained in Watson v. Moggey (1905) 15 Manitoba L. R. 241, is to the effect that an oral surrender of a written lease is void.

Some cases deny the right to give any parol evidence "in respect to a surrender of the leased premises" by lessee to lessor. Kittle v. St. John (1878) 7 Neb. 73; Bailey v. Wells (1858) 8 Wis. 141, 76 Am. Dec. 233. In Kittle v. St. John (Neb.) supra, an action for rent under a lease for a term of five years, containing a provision that the lessee might terminate the lease at the end of the year by giving six days' written notice, the lessee answered, admitting the execution of the lease and setting up as a defense that he verbally notified the lessor that he wished to terminate the lease and surrender the premises on a subsequent date, that being the end of the fourth year of the lease, and alleged that the lessor informed him that that was all right, and then and there waived the service of a written notice. The lessor in his reply denied that he ever in any way consented to or received the surrender of the premises, or that the defendant ever surrendered the same by parol, or otherwise. Whether the lessee had delivered the possession of the premises is not clear, but apparently he had. The court, after referring to the provision of the lease that it might be terminated by a written notice, states that without any

such notice having been given, without any release or reconveyance of the lessee's interest in the premises, the lessee offered parol testimony to prove a surrender of the estate to the lessor at the end of the fourth year, and this testimony was admitted. The court then refers to the provision of the Statute of Frauds that there shall be no surrender of a lease of real estate, exceeding a term of one year, unless by act or operation of law, or by a deed or conveyance in writing, and concludes: "Therefore, all the parol testimony offered by the defendant, in respect to a surrender of the leased premises by defendant to plaintiff, was incompetent, and in direct violation of the above statute." In Wheeler v. Walden (1885) 17 Neb. 122, 22 N. W. 346, where the lessee, in an action to recover rent, pleaded a surrender of the premises, and sought to show an oral agreement that the premises should be surrendered, the trial court excluded the evidence. Upon appeal, the supreme court, without referring to Kittle v. St. John (Neb.) supra, states that "a surrender by operation of law, however, may be effective by any agreement between the parties that the term shall be terminated, which is unequivocally acted upon by both." No statute is cited in the Wheeler Case. This case is cited with approval in the subsequent case of Buffalo County Nat. Bank v. Hanson (1892) 34 Neb. 455, 51 N. W. 1035. In Bailey v. Wells (Wis.) supra, the facts are not clearly stated, but in the pleading the lessee alleged that after the making of the lease, and entry upon the premises, and before any rent became due, he surrendered the lease and the premises to the lessor, who accepted and received the same in full cancelation, release, and discharge of the lease. It was held in the case that the proposal to show by parol testimony that there had been in fact an express surrender of the estate to the lessor was incompetent, and directly in violation of the Statute of Frauds, which declared that no estate or interest in land could be surrendered unless by act or operation of law, or by deed or conveyance in writ

ing. The court states that when a new lease of the premises is taken from the lessor, for the whole or a part of the term embraced in the former one, there is a surrender in law; but there were no circumstances in this case which authorized the presumption that there had been a surrender by operation of law, and the court concludes that, if there had been any surrender in fact, it could only be done by some note or memorandum in writing.

The fact that an oral agreement of surrender of a written lease, required by the Statute of Frauds to be in writing, is invalid, does not, as pointed out in subd. III. hereof, prevent a surrender without a writing; a surrender may take place by operation of law, or, according to the view of some cases, by an execution of the oral agreement. This question will be discussed in the subdivision to which reference is above made.

b. Lease not required to be in writing.

If the lease is one not required to be in writing, it may be surrendered by parol (McDaniels v. Harrington (1916) 80 Or. 628, 157 Pac. 1068; M'Kinney v. Reader (1838) 7 Watts (Pa.) 123 (dictum); Kiester v. Miller (1854) 25 Pa. 481; Whelen v. Laird (1914) 56 Pa. Super. Ct. 489), especially where the oral agreement is immediately executed by an actual delivery of the possession in accordance with it (Greider's Appeal (1846) 5 Pa. 422; McDaniels v. Harrington (Or.) supra).

There is some language used by Channell, J., in Fenner v. Blake [1900] 1 Q. B. (Eng.) 426, 82 L. T. N. S. 149, 69 L. J. Q. B. N. S. 257, 48 Week. Rep. 392, that indicates an opinion that the lease there involved could be modified by parol, since the tenancy was one from year to year; but the actual decision in that case seems to have been based on other grounds. See infra, III. a.

It has been held, however, that an agreement to accept the surrender of even a parol lease must be in writing, under the Statute of Frauds. Logan v. Barr (1847) 4 Harr. (Del.) 546. No particular statute is referred to in the

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