21 Wend. 628 | N.Y. Sup. Ct. | 1839
By the Court,
[After ruling against the defendants the minor objections raised in the case : such as that a joint possession was not shown in the defendants, and that the evidence offered of non-performance, by the plaintiff of the stipulations in the first contract on his part agreed to be performed ought not to have been rejected, the judge proceeded as follows:] The second agreement was, I think, valid. One objection raised on the argument was. that the agreement not being under seal, it should have expressed a consideration. It was evidently intended as a modification of the first agreement or lease. It was signed by the defendant, John Jaquish, jun. the original lessee, and accepted by the plaintiffon account of the delay and non-performance; perhaps, of both parties. John Jaquish, jun. deeming himself most in fault, agreed, on ac
If the lease became void, in consequence of not fulfilling the second agreement, or, if the latter operated as a surrender, the case was not one in which any notice to quit was necessary. That is never required where the parties have by mutual agreement fixed the terms on which the lease is to terminate. The lessee may always waive the right to require notice ; and for the same reason, the right never arises where a lease for years expires by its own limitation, or the parties have otherwise made an end of it. Conventio vincit legem. If a party has, in any form, transferred all his interest to another, he is bound to quit the possession. If he do not, an ejectment lies against him immediately. .
The important question is, in what way did the second writing between these parties operate1 Did it enure as a mere promise, a defeasance, or modification of the lease ; or was it a surrender 1 If a mere promise, ejectment will not lie upon it; but only an action of assumpsit. To warrant the present action, therefore, it must have operated to extinguish the lease, or pass the interest of the lessee to the plaintiff.
There is no doubt that the parties intended the second instrument as a defeasance ; but I think they failed in the attainment of that object. The instrument is not under seal; and for that reason, it is impossible, without a departure from a long line of direct and unbroken authority, to give it effect as a modification or defeasance of the lease,
The whole doctrine as to the effect of the instrument now in question, by way of modifying the lease, indeed of defeasances generally, will be found in Shop. Touch. 396, ch. 22. The very learned author of that book agrees, that all executory contracts, among which he includes leases for years, may be annulled by a defeasance, which he says may be and usually is executed subsequent to the instrument which it is intended to defeat. But „ then he lays down the requisite, without qualification, “ that the defeasance he made eodem modo, as the thing to be defeated is created; for if the obligee by word only discharge the obliger, or grant not to sue him, this will not defeat the obligation ; it must be by deed therefore as the former was.” By adopting the au
The second agreement thus failing to operate as a defeasance, the next question is, whether it could operate as a contingent surrender, it being in the nature of a re-demise. There is no doubt that either a surrender or demise may be effected by a simple writing not sealed. Magennis v. MacCullogh, Gilb. Eq. Cas. 235, 6. Co. Litt. 338, a. note (1).
New trial denied.