Heroy v. Reilly

The opinion of the court was delivered by Swayze, J. 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 [674] was a valid consideration for the original oral promise is not and cannot be questioned. 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 [675] by operation of law merges in the reversion and no longer exists. A man cannot without doing violence to language be said to hold a lease of lands which he owns in fee-simple. In Scott's Ex’rx v. Scott, 18 Gratt. 150 (at p. 159), the court said: “A surrender differs from an assignment. An assignment of an estate for life or for years is a transfer of the whole interest of the assignor to some one other than the immediate reversioner, or remainderman holding an estate which is larger than that of the assignor. The estate assigned remains an estate distinct from that of the reversioner or remainderman, and vests in the assignee, who stands for most purposes, in the shoes of the assignor. But when the transfer of the whole interest in an estate for life or years is made, as in this case, to the person holding the immediate reversion or remainder in fee, the estate transferred is extinguished by merger and the transfer operates as a surrender.” We do not mean to say that calling the document a surrender necessarily deprives the plaintiff of his right to compensation under the agreement of 1901. If the form of a surrender were adopted as a mere cover for what was really a sale, for the purpose of defrauding the plaintiff, a different question would be presented, but that question if presented would not be one for the court; it would depend upon inferences to be drawn from the evidence, and it is the province of the jury to draw those inferences. This error alone requires a reversal of the judgment, but since the case must be retried, we ought to call attention to a serious difficulty in the plaintiff’s way. His right at best was to one-third of the profits on the sale of the lease, over and above the cost of the improvements. His case rests upon the theory that Mrs. Reilly received $15,000 which belonged to her, and in which he was entitled to share after* deducting the cost of improvements. An examination of the surrender itself indicates that Mrs. Reilly secured the $15,000 by the representation that that sum had in fact been expended for improvements. The surrender SO' recites, and the fact that the consideration paid by Mrs. De Forest was that exact sum is a strong indication that Mrs. De Forest, although under no legal obligation to [676] renew the lease unless the property had been increased in value to the extent of $20,000, was willing to reimburse Mrs. Reilly for the amount actually spent for improvements. If this is the fact, Mrs. Reilly would have no right to retain the $15,000, unless that amount had in fact been spent for improvements. Mrs. De Forest could at least recover the excess over and above the amount actually expended. The plaintiff could not lawfully share in any profit obtained by misrepresentation. He seems to be in this position: if the representation on which Mrs. De Forest paid the money was true, nothing is coming to him because there is no profit under the terms of his agreement; if the representation was false, the excess of money belongs to Mrs. De Forest and not to Mrs. Reilly or the plaintiff. 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.