Springstein v. Schermerhorn , 12 Johns. 357 ( 1815 )

Platt, J.

delivered the opinion of the court. The only question which it is deemed necessary to consider, is, whether the agreement with Stephen Van Rensselaer, and the acceptance of new leases by Ryers Schermerkorn and his two brothers, in pursuance of that agreement, have operated to devest him and his heirs of their original privilege of cutting wood in those parts of the 400 acre tract which are included in the new leases to Johannes and Hendrick Schermerkorn ?

It is contended, by the plaintiff’s counsel, that the acceptance of the new leases was, virtually, a surrender, in law, of the original lease, and of all rights which the new lessees had acquired under it.

According to Sir Edward Coke, “ a surrender is a yielding ■up of an estate, for life or years, to him that hath the immediate estate in reversion or remainder, wherein the estate for life or years may drown, by mutual agreement.” (Co. Lit. 337. b.)

Here, it must be observed, that the original lease to Jacob Schermerkorn was a grant in fee, subject to rent. There was, therefore, no immediate estate of reversion or remainder in the lessor or his heirs, in which a lesser estate could merge or drown; so that the doctrine of surrender, express or implied, has, strictly, no application to this case.

j think, however, that law, as well as equity, forbids the cjajm sej. yp fay the defendant.

1st. On the ground that a release by Byers, Johannes, and Hendrick^Schermerhorn, tú Stephen Van Rensselaer, is, -legally, to be presumed; because the agreement to release; with the "reasons and motives given for it; the acceptance of new leases for the premises in question, and exacting a general covenant of warranty against all claims, are acts utterly inconsistent with the existence of the old lease, so far as regards the lands included in the new leases. '’

The agreement bound Ryers Schermerhorn and his brothers to release all claims to the 400 acre tract; and, upon condition of their so doing, Stephen Van Rensselaer covenanted to give new leases, in lieu of the old lease. Fair dealing, and the obligation of their contract, required them to extinguish all previous interest and claims, before they accepted new leases for the same land, with general warranty of title. Besides, the case agreed on expressly states, that the lessees accepted the new leases “ in pursuance of the said agreementwhich implies that, upon executing the new leases, all the previous conditions were complied with on the part of the lessees ; and, if so, the release must have been duly executed.

2dly. On the ground of estoppel, I think the defendant is barred of all claim under the original lease.

The locus in quo was not, indeed, a part of the lands for which Ryers Schermerhorn accepted a new lease to himself; but the transactions embraced in the agreement with Stephen Van Rensselaer, were the subject of one entire contract, wherein the covenants and stipulations of each of the parties were, necessarily, dependent upon, and connected in interest with, the acts to be done by every other party. I consider, therefore, that, in executing that agreement, Ryers Schermerhorn contracted not only for a new lease to himself, for his particular part, but, also, that new leases should be given, in complete seve-. rally, for the other parts., to his brothers, Johannes and Hendrick. At the time of making that agreement, Ryers had a privilege (appurtenant to his other land) of cutting wood for fuel and fencing, on any part of the 400 acre" tract; and, by that agreement, he consented and appointed that the landlord should execute' new leases to Johannes and Hendrick, for particular parts of that tract, without reservation of his privilege. Those new leases have, accordingly, been executed, and include the 7 locus m quo.

Estoppel may be by matter in pais as well as by matter of record; as, by accepting an estate, making partition, &c. (Co. Lit. 352. a.) ■ '

So, if a man take a lease of his own land, he is estopped from setting up his original title. (Co. Lit. 47. b.) And, whether Ryers took á new lease to himself, or directed, in writing,under seal, that his landlord should give new leases to his bro.thers, for the premises in question, he is equally estopped from asserting any claim in opposition to the new leases. -‘

From the view which we have taken, the paroi evidence in the case is irrelevant; and the plaintiff is entitled to judgment-

judgment for the plaintiff,