case leech and other against thompson easter term will mary roll a be tenant  for life with remainder to his first and other son and in default of such  issue with remainder over to b in tail make a surrender of the estate to b  without his knowledge or consent afterward a have a son bear and then b accept  of the surrender enter upon the estate and suffer a recovery this be a good  surrender although it be not accept until after the birth of the son of a and  destroy the contingent remainder to he in tail for the consent of the  surrendee be imply and be a commonlaw conveyance the bare grant without any  other act divest the estate out of the surrender and vest it in the surrendee  SC Carth SC comb SC holt SC Mod SC salk SC salk SC vent error in the king  bench upon a judgement in the common plea for the plaintiff in ejectment there  bring by Thomas Thompson against sir Simon leech and other defendant upon the  demise of Ch leech of the manor of Bulkworthy wherein upon not guilty plead  the jury find a special verdict that Nich leech be seize in fee of the manor  and land in the declaration and by his last will in write bear date December  car demise the premise to his brother Simon leech for life remainder to the  first son of the body of the say Simon and the heir male of the body of such  first son and in like manner to the second and three son c and for want of  such issue of the say Simon leech the remainder to sir Simon leech and the  heir male of his body and for want of such issue to the right heir of Nicholas  the testator for ever that the say Nicholas die seize of the premise and after  his decease the say Simon enter and become seize for life with remainder over  as aforesaid and be so seize make a deed bear date August car seal and deliver  to the use of sir Simon leech but he be not present which deed the verdict set  forth in haec word and by it he grant and surrender unto the say sir Simon  leech and his heir and assign the say manor and land and reversion and  reversion remainder and remainder of the same to have and to hold the same to  the say sir Simon leech and his heir to the use of he and his heir and further  that the say Ch leech the lessor of the plaintiff the first son of the say  Simon leech be bear the shower KB first of November car and not before and  that Simon leech from the time of seal the deed to the that of may car do  continue possess of the premise and that then and not before sir Simon leech  accept and agree to the say surrender and enter into the premise and that  afterward the say Simon leech brother of the say Nicholas the testotor die and  the say Charles leech the son after his decease enter and make the lease in  the declaration mention to the plaintiff who by shower KB er p virtue thereof  enter and be possess and so continue till the defendant sir Simon leech and  other eject he but whether upon the whole matter the say Simon leech do  surrender the say manor and premise to the say sir Simon leech before the say  Charles be bear they doubt and if he do not surrender the say manor and  premise to the say sir Simon leech before the birth of Charles then they find  the defendant guilty and if he do surrender before the birth then they find  the defendant not guilty Powell chief justice and rooksby justice after four  argument at the bar for the plaintiff hold that it be no surrender till such  time as sir Simon leech have notice of the deed of surrender and agree to it  and so the remainder be vest in Charles the son and not defeat by the  agreement of sir Simon after the birth and judgement there be give for the  plaintiff contrary to the opinion of Ventris a I argue for the plaintiff in  the writ of error the case in short be Simon leech tenant for life remainder  to his first son remainder in tail to sir Simon the tenant for life before the  birth of that son by deed seal and deliver by he to the use of sir Simon but  in his absence and without his notice surrender his estate to sir Simon he  continue in possession till after the son be bear then sir Simon agree to the  surrender and then enter the question be two first whether by the seal of the  deed to the use of sir Simon in his absence the estate immediate pass if so  then the contingent remainder to the lessor of the plaintiff in the original  action can never vest because the particular estate upon which it depend be go  and determine the consequence can be deny for the law be plain that if Simon  leech estate for life be determine before the death of Charles it be with my  client then second another question be whether the agreement afterward shall  not so relate shower KB as to make the land pass ab beginning but the first be  that which I rely on and in truth I doubt the other for that no relation to a  precedent act can work so strong as to divest a estate vest which be create by  conveyance antecedent to the deed to which the relation must be b and  therefore I pretend not to argue that but only the other first question  videlicet that the freehold and estate of Simon tenant for life do immediate  by the deed vest in sir Simon before he have any notice or give any express  assent to it and so it be a surrender before Charles be bear that a surrender  passes the estate immediate even without any express assent because it be a  conveyance at the commonlaw that needs no agreement   light coke enumerate the  conveyance that work without livery or other ceremony he put the case of lease  and release confirmation demise and surrender among the rest whereas if the  explicit agreement of the remainderman or reversioner be a circumstance  requisite to make it effectual he will have mention it and not have number it  with those that need no other requisite than a bare deed that require no such  assent then if I can make it out to your lordship that such commonlaw  conveyance need no expresser assent to pass the estate out of the grantor and  that the reason of the immediate pass of the estate in such case hold in  surrender as well as other conveyance then the inference will be easy  conveyance at commonlaw do immediate on the execution of they upon the  grantors part divest the estate out of he who make the conveyance and vest it  in he to who the conveyance be make in case of conveyance require a further  act beside a deed when all be do on the grantors part the estate passes  immediate even without assent or notice as in case of feoff make to diverse  person and livery make to one feoff in the absence of the rest the estate vest  in they all till disagreement and so be the Edward express and the same be  cite and agree for law in hutton case Leon that the freehold shall be adjudge  in they all till they have disarm so a estate by livery to a feme covert vest  in her present before agreement of her husband though the take by livery can  import no consent from her for she be not able to give her assent by reason of  her coverture yet good till she disagree   light so it be in case of the grant  of a reversion with attornment the freehold passes immediate by the deed    light and the reason seem to be because the grantor have do all on his part in  case of a lease for year the interest be vest before entry and if shower KB a  see the argument of Ventris vent b see term Rep shower KB er p either lessor  or lessee or both die before entry the executor of the lessee shall hold it    light b b and if make to two and one die before entry the interest shall  survive and yet till entry no agreement may he have of the lessee the reason  why any conveyance divest the estate upon the execution of all require on the  grantors part do all of they hold in case of a surrender as well as any other  conveyance they seem to be three first it be a absurdity and apparent  incongruity that when a conveyance be complete execute on the donor part that  notwithstanding the estate shall continue in he when he have do all he can to  divest himself of it as coke in I Inst say in case of livery that it can stand  with any reason that against a man own livery and seize the freehold shall  remain in himself when there be a person capable to take now it be to the full  as unreasonable that the estate shall remain in Simon leech against his own  deed of surrender when he have do all he can to part with it and nothing  further be require on his behalf for in case of a surrender by deed and  sometime word be as effectual without deed as livery in case of feoff I can  see no reason for a difference in the case of a release to the tenant in  possession the estate vest by deed immediate then there be a presumption in  law that it be for a Mails advantage to take a estate and so be it to have his  reversion attach in possession now no man can be suppose unwilling to that  which be for his advantage where a act be do for a man benefit a agreement be  imply till there be a dissent in the case of Smallman v Agborrow roll Rep I S  and a feme sole be jointtenants for life they intermarry and make a lease of  the wife moiety render rend the feme die hold that the lease bind the survivor  because it be with a render of rend it be intend to be for her benefit and so  good till express disagreement hold also e contra that if a feme covert grant  a rend the grant be absolute void because it can be for her benefit so of a  obligation so if a infant lease land render rend it be good till disagreement  but if without render it be void a lease make to baron and feme for year the  feme shall have it if she survive because intend for her benefit and  consequent good till she disagree and no need of a express agreement to make  it good a assumpsit to my servant or agent in my absence be good to I till  disagreement hetley godb this rule hold even in the gift of good as be resolve  in the case of butler v baker   shower KB a grant of good and chattel vest the  property in the grantee before notice a bind be seal and deliver to a man use  who die before notice his executor may bring a action upon it dyer which show  the general reason and intendment of the law that what be for a man benefit it  be suppose every mail be for it and I may be very confident that sir Simon  leech be always Willing to have this estate and as I say before a estate make  to a feme covert vest in her immediate till her husband disagree and yet she  can agree to bind herself so be hob and in plead it be not necessary to aver  his assent for it vest till he disagree swain v Holman hut now my Lord be  there not the same presumption and appearance of benefit to he in reversion in  the case of surrender be it not a palpable advantage to he to determine the  particular estate and to reduce his own into possession and therefore there  can be no reason why a assent shall not be imply in surrender as well as other  conveyance then further the law will not allow or suffer the operation of a  conveyance to be in suspense and to expect the agreement of the party to who  it be make because the care of the law be to prevent a uncertainty of the  freehold this seem the great reason why a freehold can be grant in going to be  because it will be hard and inconvenient that a man shall be drive to bring  his precipe or real action first against a grantor and after he have proceed  in it a great while it shall abate by a translation of the freehold to a  strong by reason of his agreement afterward to some conveyance make before the  writ bring for my Lord this must be the reason or there be none at all for  there be nothing in the nature of the thing which can be call a reason against  pass of a freehold in going to be for a rend de to make new may be grant to  commence in going to be because that be new create there can be no precedent  right to bring any real action for it palmer Rep now all the uncertainty which  the law abhor of a freehold must follow in this case of a surrender if nothing  pass till a agreement beside pray do but consider the convenience and  inconvenience of each opinion and it will be apparent manifest shower KB er p  that the balance be on our side notwithstanding the objection which I expect  to hear from the other side suppose in this case a precipe have be bring  against Simon leech the tenant this will have proceed accord to their opinion  and he can not have plead in abatement till sir Simon have agree and after a  long progress in the suit he may have plead a agreement shower KB of sir Simon  be puis darrein continuance and defeat all and I see no reason why any such  plea shall not be admit so that the same inconvenience as to the bring of real  action hold in case of surrender as of other conveyance now on the other side  you say that if a precipe have be bring against sir Simon leech he may have  plead his disagreement and so have abate the writ by nontenure I answer that  must be agree but it be no great inconvenience than the plea of nontenure be  in all other case whatsoever beside it must have abate the writ immediate for  he can not have abate the writ by any disagreement after he have answer to it  when as in the other case it may be plead puis darrein continuance and  consequent after a long progress in the suit beside it be more improbable that  he shall disagree than the other for a assent to take be the likely thing in  the world so that the mischief to a demandant be neither so great nor so  probable as in their case as to the inconvenience of make a deed of surrender  and continue in possession and thereby destroy and defeat of recovery  settlement and charge I answer this hold too frequent in other conveyance and  yet in these the freehold vest immediate though a disagreement do afterward  divest it beside they must agree that a express assent will make a surrender  effectual though the surrendee do not enter and consequent though the assent  may be as great a secret as the deed yet it vest the estate in he so that the  objection as to stranger by continue in possession hold as well in their  opinion as in that which I contend for for the estate vest before entry though  it can maintain trespass before entry and that assent of they may be keep as  private and consequent all the mischief pretend will follow as much as if no  express assent be requisite that he be become tenant before entry and must be  so sue in a precipe be full authority bro title surrender hut as to the  objection that in case of a surrender a actual assent be necessary as  attornment be to the grant of a reversion or livery to a feoff or execution by  entry in exchange I deny that assent be necessary as a circumstance but do and  must agree it a essential to all conveyance for every conveyance suppose that  there be two person and that both assent and if that assent be deny it annul  the conveyance but that which I do affirm be that it be not require as a  circumstance as livery and attornment be to perfect the conveyance shower KB  for a assent in all conveyance be imply in he that take and this by intendment  of law which be as strong as the expression of the party till the contrary do  appear and there be no conveyance at commonlaw that do not work immediate when  the grantor have do all on his part but perhaps they object that exchange do  not work immediate I answer that stand upon a particular reason there must be  a express mutual assent because there must be a mutual reciprocal grant as  appear by Litt sect Finchs lev but in case of a surrender there be nothing to  be do on the reversioners part but to take and that the law intend a man  Willing to do till disagreement appear objection that in copyhold surrender  the estate still remain in the surrender Frosel v Welsh cro James answer that  be find upon the particular custom and can be urge as a reason in this case  beside the reason be plain there that the lord may have a tenant for his  service and if it shall not be in he it can be in nobody the custom will not  admit it in the beneficiary and use of the surrender because not so much as a  presentment and the lord be not capable of have it because the surrender be  quasi conditional to he and not to his use objection that this be like to the  resignation of a benefice which can be plead as good till acceptance by the  bishop as bro title bar Noy cro James Edward Edward answer that be no way to  be compare to this case for that be a ecclesiastical matter and find rather  upon a ecclesiastical reason the resignation be of the cure rather than the  benefice though the one follow the other the resignation be not to a man  interest the bishop acquire no interest therein by such a resignation it be  make to he as a spiritual judge and father who by reason of his own  jurisdiction and the priest obedience have power shower KB er p to judge if  convenient for the church and no formedon lie of a rectory for there be  neither remainder reverter or descender of that perhaps by the canon law the  ordinary may refuse or censure he if he resign a cure he be best qualify for  and yet the resignation of a donation to one of two founder enures to both  Fairchild v Gaire cro James whereas a surrender be quasi a dereliction or quit  of the land or his estate in it and thereby the reversion or remainder take  possession immediate the freehold be transfer shower KB immediate for fear of  a suspense of that freehold there be no such fear or care in case of parsonage  because they have their provision in a vacancy the ordinary be to take care  for the supply of the cure and may apply the profit thereof for a reward to he  that shall actual officiate therein a surrender be quasi a grant of the term  or particular estate and so it be hold in the case of peto v Pemberton cro car  and be a grant no man can question but what passes by grant do vest immediate  and so continue till disagreement a surrender or up redditio do not ex way  termini import or require any express agreement of the reversioner only a  dereliction of his own estate and his assent that the other shall take and  enjoy it this be all that the word can import objection that there be find in  the verdict a acceptance and entry such a day and not before and no agreement  can be intend contrary to what the jury find answer I confess there be some  such unkind word insert in the verdict but that will not alter the case for if  the law do not require a express agreement no more than it do a assent on the  lessee part in case of a lease and release then upon the execution of all on  the grantors part the freehold pass and that immediate and then this find no  way alter the case for if the estate pass before the express assent if upon  the act of the grantor that act be for the reversioners advantage the law  imply a assent till the contrary appear then the find of the agreement do no  way alter the case and the word and not before be repugnant and therefore void  because the law imply a assent at first and no disagreement be find it be a  good consequence of the freehold immediate objection that in the plead of a  surrender it be general say ad quod agreeavit and that the form of plead show  what the law be in that case as raze Entr Fitzherbert title bar I answer first  these be all in action which be bring in a disaffirmance of the surrender and  do import a disagreement and therefore the defendant have no mean to bar or  avoid such agreement but by show a express agreement before as in debt for  rend the defendant plead a surrender before the rend become due the bring the  action be a disagreement and therefore a express agreement before be plead so  in waste of the same nature be the case of peto v Pemberton cro car in  replevin the avowry be for a rentcharge it be plead in bar of the avowry that  the plaintiff demise the land out shower KB of which the rend issue to the  avowant the avowant reply that he surrender dimision breed to which the  plaintiff agree this be of the same nature with plead it in bar to a action of  debt for rend but when the action be in pursuance of the surrender then it be  not plead so be rastall Ent in covenant for eject he and the defendant plead a  surrender in bar without any acceptance second it be not universal so for in  Fitzherbert title debt debt for rend defendant plead in bar that he surrender  by force of which he become seize there be no mention of plead any agreement  though that action be in disaffirmance of the surrender three if a agreement  be necessary to be plead that be fulfil by a imply as well as by a express  assent suppose lessee for life shall make a lease for year reserve rend and in  debt for the rend the lessee shall plead that the plaintiff before the rend  grow due do surrender to he in reversion and he accept and issue take upon the  acceptance and at the trial it be prove that the plaintiff have execute a deed  of surrender as it be here to he in reversion in his absence will not this  turn the onus to make good upon the plaintiff that he disarm to the surrender  sure his agreement prima fancy will be presume and then the rule be stabit  presumption while to make good in opposite direction it be not always plead  and when plead it be upon a special reason to conclude the party from disagree  fourthly no argument can he have from this plead to make any forceable  conclusion in the point for admit a express assent necessary it can be needful  to be plead for if it be a necessary circumstance to the conveyance as livery  then up To give back imply it because it can shower KB er p be a surrender  without it as feoff imply livery because no feoff without it cro car and now  it be a odd way of argue to infer that the law be so in a point because the  plead be so whereas if the law be as they say the plead need not be  so Objection the description of a surrender in the book be with a assent    light that the surrender be the yield up a estate which drown by mutual  agreement between they Perkins cap surrender sect to this I give two answer  first that every conveyance require the consent of both party and a agreement  be necessary but the question be whether a agreement be not intend where a  deed of surrender be make in the absence of he in reversion whether the law  will not suppose a assent till a disagreement shower KB appear if the  reversioner be present he must agree or disagree immediate and so it be in all  other conveyance and so be all the case put by Perkins of surrender make to  the lessor in person the word of the book be the lessee come to the lessor and  say I surrender Perkins say if the lessor do not agree it be void for a  surrender can be against his will this may be all true and yet what we contend  for may be law too for by no conveyance can a man have a estate put into he  against his will and by force but it will be hard to show a bookcase adjudge  where a deed of surrender be execute in the absence of the reversioner and  that nothing passes till be consent I do agree that a disagreement will null  it and so it will in a case of a lease for year make in absence fine feoff  grant with attornment bargain and sale yet then the term vest before agreement  or notice the inconvenience will be infinite if a surrender can not operate  till a express assent of the surrendee for then no surrender can be to a  infant at least when under the year of discretion for if it be a necessary  circumstance it can be omit in any case do more than livery or attornment so  although a infant of a month old be by law capable to take a estate because it  be for his advantage yet he must not take a particular estate upon which he  have a reversion expectant because it must enure by way of surrender and yet a  infant by our law be capable of be a surrendee as well as a grantee for  whosoever be capable of a surrender be capable of a grant tenant for life and  be in reversion for life may surrender without deed and the estate of he in  reversion shall be surrender by it for it seem this shall enure as a surrender  of the first estate for life to the next and so it be a surrender of a estate  in possession ass roll Abr now here the reversioner for life never agree to  take any estate from the first lessee by   light if there be two jointtenants  in reversion a surrender to one enures to both by which it be plain that as to  one moiety the deed of surrender operate without assent or notice bro sur  suppose tenant for life shall make livery upon a grant of his estate to he in  reversion and two other and the livery be make to the other in the absence and  without the notice of the reversioner this livery sure shall work immediate  even as to the whole estate and if it do it must enure as a surrender for a  three part so be bro title Surr suppose shower KB tenant for life of black  acre shall by lease and release convey black acre and white acre to he in the  reversion who have no notice must not black acre pass till notice and assent  and white acre pass immediate for black acre must pass by way of surrender and  in plead you must say up To give back objection the case of perryn v aller in  Owen Rep it be there say that to make a good surrender there must be a  immediate reversion in the surrendee possession in the surrender and a  agreement of the party I answer that case can be of no authority in this point  for that be tenant for year the reversioner for year covenant and agree with I  S that the tenant shall enjoy the land for a long term and the question be if  that be a surrender and hold not and with good reason for undoubted the  consent of the tenant be necessary and there can be none intend and the tenant  be no party to the deed but a perfect stranger and the intent and agreement of  the party to the article be undoubted that it shall not extinguish the other  term and it be intend a surrender by nobody beside there be a better reason  than all this give videlicet because a lesser term can not merge in a great  the reversioner be but for year and Anderson and the rest go upon another  notion that a covenant between two that a three man shall enjoy land be no  lease further the report can shower KB er p carry no great authority with it  the case be odd put a mail seize of land by lease for thirty year make c a  grant of a reversion may be with attornment without assent or notice for  attornment may be in the absence of the grantee by all assent declare on bear  the deed which be only seal and deliver to the use of I S   light bro title  Attor tookers case   then we be here in a case where be only a contingent  remainder which be but a kind of scintilla law and not much favour in law upon  this surrender have be a long and quiet possession and two marriage settlement  and therefore I pray a reversal of the judgement in the common plea note I do  not argue the point of relation for that I doubt it be hard to maintain so  strong a relation the remainder be by title antecedent to the surrender it be  vest in Charles by virtue of the will and so paramount the surrender to which  the assent must relate and consequent no relation to that deed of surrender  shall divest a estate invest by virtue or force of a will or conveyance  execute before that shower KB if a estate arise to one upon a contingency or a  power be reserve upon a fine or feoff to use when once raise or vest it relate  to the fine or feoff as if immediate limit thereupon   if the husband  discontinue the wife estate and then the discontinuer convey back the estate  to the wife in the absence of the husband who so soon as he know of it  disagree to it this shall not take away the remitter which the law wrought  upon her first take the estate from the discontinuee   light Jones because she  be in of a title paramount to the conveyance to which the disagreement relate  and the same rule hold for agreement and of this opinion be all the court of  common plea and therefore I stir not this point Mr row argue e contra that in  a surrender the mutual assent of the party be necessary that a particular  tenant can throw up his estate not volens to the reversioner that a surrender  plead without assent be ill that a surrender be like a resignation that a  assent can be presume when it be find that he do not agree till five year  after he cite Winchs Ent palm dyer Edward cro James side cro Elizabeth ass pl  bro title debt kelw dyer Leon levins sergeant the next term argue for the  plaintiff in the writ of error that the estate passes general by the act of  the grantor   light that even in the grant of a reversion it passes between  the party immediate that ill release no consent be necessary he cite raze Erit  in debt release   Ent dyer   light Inst that if a lease he make for year with  condition of accruer the estate passes present that exchange stand upon  another reason for there must be mutual act that a grant may be plead without  assent and this be find as a release and grant it be true the grant turn by  operation of law into a surrender but still it be a grant here it be a good  grant now there be nobody consent require to that but his own here it first  work as a grant then if the estate be out of Simon leech it matter not where  the contingency be destroy gold e contra that the jury make a special  conclusion if the say Simon leech surrender or not which destroy the notion of  pass as a grant then that no estate passes at commonlaw without livery entry  or agreement unless in case of a estoppel that whosoever come to a estate by  any conveyance be call a purchaser now by   light purchase be where a man come  to land per son fait on agreement that even in surrender in law it be the  acceptance or agreement of the shower KB party that make they good he cite  roll Abr Edward Perkins title grant sect Henry Plowd b Henry and therefore  conclude that no assent be have to the surrender till after the birth of  Charles it be a void surrender holt chief justice as to the word release and  grant in the deed they signify nothing for a grant in this case can be of no  avail without livery though the word of the deed be grant yet it must he plead  as a surrender and not otherwise a surrender be a particular sort of  conveyance and agreement be necessary to perfect it and so judgement be affirm  shower KB er p and afterward that judgement be reverse in the house of lord  omnibus baron pour mon client c