84 N.J.L. 671 | N.J. | 1913
The opinion of the court was delivered by
The preliminary question is whether there was a valid consideration for the agreement between Heroy and Keilly. The point made is that the consideration was past— services already rendered. We think this point is not well taken. The memorandum on its face is not the original contract of the parties, but mere evidence of a contract theretofore made. It says that it is made “as a correct statement of the transaction,” and that Keilly “has promised.” That there
The next question is whether the condition upon which the money was to be paid has ever been fulfilled, that is whether there has been a sale, assignment or transfer of the lease. The question is really somewhat narrower. The judge took the question from the jury and assumed himself to determine that the agreement between Mrs. De Forest and Mrs. Reilly was a sale, assignment or transfer. In this he was clearly wrong. If the document alone is looked at — and the judge could look at nothing else in this case — it purports to be a “surrender.” Blackstone defines a surrender as “a yielding up of an estate for life or years to him that hath the immediate reversion or remainder wherein the particular estate may merge or drown, by mutual agreement between them. It is done by these words, ‘hath surrendered, granted, and • yielded up.’ ” 2 Bl. Com. 326. The words used in the present case are “waived, quitclaimed and surrendered,” but that is unimportant. “Any form of words by which the. intention of the parties is sufficiently manifested, will operate as a surrender. Thus, if a lessee for years remise, release, discharge and forever quitclaim to the lessor, all his right, title and interest in or to such lands, it will be considered a surrender. Or if a lessee for life leases to the lessor for the life of the lessee, it will be equivalent to a surrender.” Tayl. L. & T., § 510. To hold as the learned trial judge did, as matter of law that an instrument which the law considers a surrender is a sale or assignment or transfer, is to introduce unnecessary confusion into- our legal terminology, and make it impossible for counsel by the use of the most accurate and technical terms to secure his client’s rights against future misconstruction. If we are to encourage the accurate use of legal terms we must adhere to their recognized and settled meaning. The difference .between a sale and surrender is fundamental. A sale involves a transfer of something that may still exist after the transfer, but when a lessee surrenders or transfers his estate for j^ears to the owner of the immediate estate in reversion, or remainder, the estate for years at once
It remains only to call attention to the error in excluding certain bills paid by Reilly, and claimed by the defendant, to show pajunents on account of improvements. A notation had been made thereon by the plaintiff, reading “Imp. a/e Heroy.”
It was open to the jury to find that the notation indicated an admission by Heroy that the bills were for improvements. They should have been admitted in evidence.
The judgment must be reversed and a venire de novo awarded.
For affirmance — Ti-ie Chancellor, Tekhune, J. • 2.
For reversal — The Chiee Justice, Garrison, Swayze, Trenciiard, Parker, Yoorhees, Minturn, Kalisoi-i, Bogert, Yredenburgh, Congdon, White, Heppenheimer, JJ. 13.