
    Jackson, ex dem. Butler and others, against Gardner.
    wiit-re A. voluntai-ilydeliver. snoyed "'1 lease a new etoimed undJr8’ the old lease R was held, that it the old lease was not duly snrren<3ci erl bywriting, mooffrauds,yet eoxLA't'lTmorc land than xvhat he could prove, xx-kh absolute certainty," was covered by that after\he^prem¡been'iVthe poserSSfor near°sbc" teen years. A. on the ICth December, 1793, gave a lease to B. of a part of a lot Tears'; a'id'm! ler,2179exe"of the same lot. C. took immediatf possession, under his deed, and continued in skteimycarsTti. e(bpm't<1ofí'the premises in possession of C. as comprised in the lease to li. It was held that the deed to *), was valid, notwithstanding the lease, and that B. could not set up any new location, so as to invade the possession of C.
    Every exception and uncertainty ir» a deed h to be taken favourably to the grantee -
    THIS was an action of ejectment, for part of lot No , , . , , , r i , 98. together with the waters and banks or the creek or stream running through it, for the use of the mills, in the toWn of Manlius, in the county of Onondaga. The cause was tried before Mr. justice Tales, at the Onondaga circuJt in June last.
    The following evidence was given, on the part of the plaintiff»
    1- A power of attorney from James Hamilton, dated the 12th December, 1793, to Adam Wood, authorizing ^'lm to demand and sue for a set of grist-mill irons and . 0 other articles in the possession of Phineas Stephens and . , _ Trr, . , , „ Daniel D. White, and to recover the rent of a saw- mill, lately erected by Stephens, and damages for cutting and carrying away any pine timber from a certain piece of bind in Manlius, in the possession of John Johnson, &c.
    
      a A deed from James Hamilton to Charles MulholJ ¡en -md his wife, dated 26th December, 1793, by which (for the consideration of hve shillings, and of MidhoU len’s returning a deed of gift from Hamilton to him, of l°t 55. in the 14th township of the military tract in the °f Herkimer) Hamilton conveyed to Mulhollen, in fee, part of lot 98. in Manlius, (containing 600 acres,) r v . 0 * 200 acres of the north-east corner having been - sold to # rrr , _ Stephens, and 200 acres to Wood, and 40 acres to Rose-mark, both off the south-east corner; all the rest was STanied to Mulholen and his wife and their heirs, to and to hold, to the use of Charles Mulhollen and' his heirs, &c. This deed was rep-istered the 23d AhriL ° i * 1795»
    
    
      3. A deed dated 23d November, 1796, from James Ham'lton to Charles Mulhollen, by which, in consideration of love and affection, and the sum of five shillings, he conveyed to him part of lot No. 98. beginning at the north-east corner of Stephens’s lot, and running thence, westerly along the line of Stephens to the creek ind crossing it, and up the creek to the line of Wood, &c. &c. being 200 acres, and with a proviso, that the grantee shall not erect any mill on the water-course, under the penalty of forfeiting the land. This deed was registered the 7th February, 1797.
    3. The copy of a second lease, (the original having been burnt by accident, and the first surrendered,) dated 29th January, 1794, from James Hamilton, by Jonas Platt, his attorney, to Aaron Wood, for 60 years, of two parcels of land in lot No. 98. in Manlius. The second parcel is described as bounded easterly# by Stephens’s land, southerly by the mill creek, westerly fay lot No. 9/. being all that part of lot No. 98. lying on the easterly side of said creek, except what had been sold to Johnson and Stephens; and also, so much of the bank on the west side of the creek, as may be necessary for the purpose of erecting mills and mill-dams, which part is to be surveyed and designated by Moses Dewitt.
    
    
      5. A letter, dated January 25, 1794-, from James Hamilton, in which he says, “ Measure 200 acres, besides Johnson’s and Stephens's, on this side of the creek, and on the other side, square out, as I intend to let it also.. I mean what Wood does not take of the land.” “ Let. Mr. Wood leave as much as is necessary for mills, on both banks of the creek, in his measurement.”
    5. Thaddeus M. Wood, a witness for the plaintiff, testified that he was present when the first lease was surrendered, and the second lease, above mentioned, given in its stead. The first lease was then destroyed, without any writing to show the surrender j but the witness was not certain as to the manner in which the first leascgwas surrendered and destroyed. The fifst lease was given by Hamilton to Aaron Wood, on the 12th December1793, for 200 acres of lot No. 98. to be taken from the southeasterly corner of the lot, so as not to interfere xyith the previous purchase of Johnson, of 40 acres, of that of Stephens, of 200 acres. It was the impression of the witness that the lease was to include the whole creek, and to continue for the term of 60 years, at an ánhual rent of seven pounds, for each hundred acres; ánd the witness thought he was a witness to that lease. Dezoitt died in the summer of 1794, before any survey Of the premises xvas made. 'On his cross examination, the witness said, “ he xvould not undertake to say whether the first lease included the privilege of the whole- stream running across the lot; but, according to his impression, it did include it.”
    6. A certificate, or memorandum, by Jonas Platt, dated 29th January, 1794, endorsed on another instrument in writing, which xvas not proved, but which purported to be an assignment from James Hamilton to Aaron Wood, of his interest in a lease by him given to Phineas Stephens, for a saw-mill first erected, and was dated 12th December, 1793, and referred to a lease which had been given by Hamilton, of that date. By this certificate and memorandum, it appeared that a lease from Hamilton to Aaron Wood had that day been surrendered up by Wood.
    
    7. Jonathan Foster, a xvitness, testified, that two or three days after the 2oth December, 1793, he saw, at the house of Aa,ron Wood,, a lease from James Hamilton to \Wood, of 200 acres of land, in lot 98. in Manlius, to be taken from the south-east part, so as not to interfere with the farms of Johnson and Stephens ; and to be surveyed by Moses D.ezoitt, in a square, as near as might be, southerly of Stephens’s land, and to extend westerly over the creek, so as to make up the quantity. The crefck throughout the whole lot was included in the lease, and the banks bf the Creek, at least as far as the ntirth bounds of the 200 acres, if not farther, were also included for the use bf the mills. The lease was for sixty years. He said that as the creek had not been traversed, it was not Icnowii whether the 200 acres would overrun the creek or not; but it Was not to extend farther north than the south bounds bf Stephens’s line, to make up the 200 acres. He was not certain that the lease included the banks of the creek farther than the extent of the 200 acres.
    8. Elijah Phillips, also, testified, that he saw the first lease in the latter end of the year 1793, or the beginning of 1794: it was for 200 acres out of the south-east corner of the lot 98. together With the creek and its banks throughout the lot, for the use of the mills. He said he saw the lease but once, and is not certain whether it was a lease or a contract for a lease; and he did not remember the exact boundaries, but the 200 acres were not to extend farther north than the south side of Stephens’s land.
    9. James Geddes testified, that if the 200 acres com tained in the first lease, were so located as to include all the land south of Stephens’s land, excepting Johnson’s and extending westerly, with a north line corresponding with Stephens’s south line, so far as to include the quantity of 200 acres, it would encroach on the defendant’s farm, about 8 chains and a half, or 24 acres, leaving the defendant’s mills, and about 11 chains and a half north.
    10. Garrit Van Slyck testified, that the defendant was in possession some distance south of the line of the 200 acres, located as aforesaid ; and was informed of Wood’s claim to the water of the creek, when he took possession.
    On the part of the defendants, J. Platt testified, that, as agent of Hamilton, he received from Aaron Wood, in January, 1794, a surrender of the first or old lease, or contract for alease, he was not certain which; and that it wag destroyed, and a second or new lease given. Whether there was any agreement in writing to surrender, he could not recollect. It appeared that Charles Mulhollen, and those claiming under him, have had the entire and exclusive possession of all the land included in Hamit-? ton’s deed to Mulhollen, of the 26th December, 1793. That neither Aaron, Wood, nor those claiming under him, have ever had possession of the lot, excepting the part which lies between Stephens’s land and yohnso.n’s land, and bounded westerly by the creek. Mulhollen lived on the land- until his death, about five years ago, and made valuable improvements. It appeared that there were above 20 houses and many mills, erected on the premises.
    A verdict was taken for the plaintiff, subject to the opinion of the court, on a case containing the facts above stated.
    
      Gold, for the plaintiff.
    1. By the lease of HamiltQn, of the'12th December, 1793, a title to the 200 acres of land, ■ and all the waters and banks of the creek, throughout lot No. 98. was vested in Aaron Wood. And it could not be affected by the deed to Mulhollen, of the 26th December, 1793, there being then an outstanding and subsisting title in Wood, under the first lease.
    2. There is no evidence that the first lease was surrendered, by any express or •written contract for that purpose. By the 10th section of the statutfe for the prevention of frauds, a surrender of a lease or.interest in land must be in writing. (Sess. 10. c. 44.) On the contrary, the evidence of the giving up and destroying the lease, shows that there was not a surrender in writing. The word surrender, ex m termini, means a surrender in writing. If an express surrender is relied upon by .the defendant, he is bound to show it in writing. The acceptance of a new lease does not necessarily imply a surrender of the old. In Wilson v. Sewall, the court say, that the acceptance of a bad lease, is not an, implied surrender of a good one.
    In the case of Roe v. York, the subject, as to the surrender of leases, is fully discussed, arid all the authorities are cited. It is there held, that the mere cancelling or . . ’ , ° destroying a lease, is not a surrender of the term; and though a new lease was given, expressly in consideration of the surrender of the old, yet as the lessor had no power to give such a lease, the acceptance of the second lease was not deemed a surrender of the first, though the lessee knew of the defect of power.
    In order that the acceptance of a new lease should produce a surrender of a former one, it should be for the same thing, or same premises.
    
    Again, if Hamilton's deed to Mulhollen included the premises, then there was no reversion in Hamilton, on which the surrender could operate. A surrender is the yielding up of an estate for life, or for years, to him who has the immediate estate in reversion or remainder.
    
    . Whether the delivering up, or cancelling a lease or deed, could extinguish the estate, appears to have been much discussed in England,
      
       but it is now fully settled that it does not; and that, since the statute of frauds, it must be in writing.
    #Again, if the premises had not been excepted in the deed to Mulhollen, and there had been a technical surrender of the lease to Wood, Hamilton would not have been estopped, as between him and Mulhollen, to aver the truth, that the title, being then in Wood, could not pass to Mulhollen. Where an estate passes by deed, an estoppel cannot arise on it. If A.y a tenant for the life of B., lease for years, and he purchases the reversion, and B. dies before the expiration of the lease, A. is not estopped, hut may confess and avoid.
    
    
      
      Estoppels on conveyances with warranty, were introduced to prevent a circuity of action. The doctrine is, that the grantor shall not allege that. nothing passed by his deed, thereby making it a nullity; but he may allege that so great an estate did not pass. And if the. defect of title is- recited in the conveyance, there is no estoppel.
    
    
      3. Mulhollen never claimed the waters of the creek, or pretended to dispose of them; and he is estopped by the deed'of November 23, 1796, to set up any mills, or tq assert any tide to the waters.
    4. The deed of the 26th December, 1793, from Hamilton to Mulhollen, being a voluntary deed of gift, with a mere nominal consideration of five shillings, is void under the statute, as to the subsequent lease to Wood, which was given for a valiiable consideration. A voluntary conveyance is void against a subsequent purchaser, for a valuable consideration, though such subsequent purchaser had notice of the voluntary conveyance. Though the universality of this proposition was once questioned, in England, it is now settled, as being a necessary doctrine to guard against fraud. The words, “ purchasers for money or other good consideration,” in the 3d section of our statute, (sess. 10. c. 44.) and “for good consideration, and bond fide? used in the 6th section, are the same words as are used in the statute of 27 Eliz. c. 4.
    A consideration, to be valuable, within the statute, must be, in some degree, adequate. Five shillings, and other valuable considerations, have not been held to amount to a valuable consideration, within the 27 Eliz.
      
    
    A consideration, which would raise a use to support a bargain and sale, is not sufficient to create a valuable consideration within that statute. A lease on which rent is reserved, is considered as a revocation of a-voluntary conveyance.
    
    
      5. It may be objected that the lease to Mood not being registered or deposited, pursuant to the act.or January, 1794, extended to May, 1795, is void. But there was notice to Ma'hollen of .the lease, which is equivalent to a registry of it.
    
    
      Clark and Platt, contra.
    The lessors were bound to show a good title. The destruction of the old lease and its contents, ought to have been fully proved. The execution of the first pretended lease was not proved, and none or the witnesses speak or its contents with any certainty. The acceptance of a new lease by Wood, shows that he did not rely on the old lease, in order to cover the banks of the creek, and the mill-seats. The surrender, by Aaron Wood, of the original lease, in January, 1794, enured to the benefit of Mulhollen, the reversioner. The evidence is sufficient to warrant the conclusion, that this surrender was by deed, or note in writing, according to the statute.
    If it was not in writing, it was a surrender by act and operation of law. Surrenders in law, or surrenders by implication, remain as before the statute.
    Surrenders are favoured in law. No particular words are necessary to constitute a surrender; it may be collected from the intention of the parties, appearing on the instrument executed by them. It is a species of of the common law conveyance, and operates by merger less estate in the greater.
    
    Delivering up a lease, and taking a new lease in writing, is a valid surrender; the new lease being of equal notoriety with a formal surrender in Writing.
    
    If a lessee for years takes a lease of the same premises, without delivering up the old lease, it is a surrender by operation of law.
      Fortior et equior est dispositio legis fiiifiYfi hfimi'niQ quam noniims.
    
    A surrender operates without an express or even notice to the reversioner. His assent is implied. It is like scaling a bond to a person, in his absence, which makes a valid obligation immediately, Without notice^, and can be annulled only by an express refusal.
    
    In Mellow v. May, it was held, that if a lessee takes a new lease of the same land, it is a surrender of the first lease, although the second lease be void, from any defect in the making of it; for the acceptance of the new lease is a surrender of the old, which cannot be set up, although nothing was received for it. A contract for a new lease is good evidence to a jury, of a surrender.
    • The cases cited by the plaintiff’s counsel, from IMir*row, Sir William Jones, and 6 East, all rest on the ground of fraud: there was- a suppressio vert. They are not applicable to the present case, where there is no pretence of fraud, but a fair disclosure of the previous conveyance to Mulhollen. The second lease is good and operative for all that part of the land, not previously sold to Mulhollen. No injury is done to the lessee, who is not obliged to pay rent, for the part in the possession of Mulhollen,
    
    Again, here was no possession or rent paid for 16 years; and after so long and quiet possession by another, a surrender or regular re-entry will be presumed.
    
    The cases cited by the plaintiff’s counsel to show that Hamilton was not estopped from, denying the effect of his deed to Mulhollen, have no application to the present case; because the delivering up the old lease, and taking a new one, did not operate as an assignment to Hamilton, but as a surrender to Mulhollen, the reversioner. The term was merged or extinguished, not assigned.
    
    The deed of the 26th December, 1793, from Hamilton to Mulhollen, was for a valuable consideration, the returning a deed of gift of other lands, and five shillings. It must be intended, that the deed of gift was duly assigned, when the exchange was made. If not, a court of chancery would compel Mulhollen to execute a conveyance, an the ground of a performance by Hamilton; and this court may presume that to be done which ought to have been done, and which the party might be compelled to do.
    But admitting it was a mere voluntary conveyance, it cannot be impeached by a subsequent deed for a valúable consideration ; unless the second purchaser is a creditor, who has been defrauded by such voluntary conveyance.
    Again, the leases to Wood were void, because not registered or deposited according to the act of 1795. (2 Rev. Laws, 262.)
    
      Hamilton’s deed of the 23d November, 1796, was produced at the trial, on the part of the plaintiff; and there was no evidence of Mulhollen’s assent to it. If he did assent, as it was for the same premises, it amounted to a confirmation, not a surrender, of the first deed.
    The claim or right to the mill-stream and its banks, for the use of mills, is a mere incorporeal hereditament, and cannot be recovered in an action of ejectment. The right was contingent, and for a special purpose, and did not include a right to the soil. By a grant of a stream of water, the soil does not pass. If by any natural cause, the stream should be diverted or dried up, the bed of the stream and the banks would belong absolutely to the grantor, as if no such lease had ever been made.
    The notices given by Butler and Philips can have no effect; for they showed no title in themselves, or under Wood. They are to be regarded as mere strangers to the defendant.
    If the evidence is fairly weighed, the balance will be found in favour of the supposition that the original lease did not include the stream throughout the whole lot j but only so far as the 200 acres extended.
    Again, there is another and conclusive objection to the plaintiff’s claim. Aaron Wood having voluntarily destrayed the original lease, has thereby destroyed his title. He cannot be allowed to give parol evidence of its contents. Unless he can show that the lease was destroyed without his own fault or assent, he must he held to the strict rule which requires the highest kind of evidence; otherwise, the party might always elect whether to produce the highest, or the lowest species of evidence.
    
      
      
        Burr Rep. 1975. 1980. and see Hutton, 105. Sir. Wm. Jone's Rep. 405, 406. 1 Saund. 236 c. note (9)
    
    
      
       6 East, 86
    
    
      
      
        Co. Litt. 338. a. note (2). Shep. Touch. 301.
      
    
    
      
       3 Bac. Abr. 457. Leases, (8). 1 Saund. 235. c. note (9). Co. Litt. 337. a. n. (2.)
    
    
      
      
         Co.Litt. 338. ^‘¿t, Cas.too. 20 vin. Mr. 143. Sur. rend. (L) pi. 10. 87. ^ 8
    
    
      
      
         Co. Litt. 45. a. 47 b. Bac. Abr. Leases, (O.) 8 Term Rep 487. 1 Burr. 125.
    
    
      
      
        Co. Litt. 265. a.
    
    
      
       1 Lord Raym. 729.
    
    
      
      
         Newland on Contracts, 391. Rob. on Fraud. Convey. 66. 213. Shep. Touch. 62, 63. (Deeds, d. 4.) Cowp. 278. 5 Co. 60. 2 Bro. Ch. Cas. 148.
    
    
      
      
         Sugden’s Law of Vend. 431. Rob. on Fraud. Convey. 373. Cro. Eliz. 445. Salk. 94.
    
    
      
      
         Rob. on FraudConvey. 474.
    
    
      
      
        Cro. Jac. 180.
      
    
    
      
      
         Cruise’s Dig. 353. Newland on Cont 509. 1 Str. 664. 3 Atk. 646. 2 Ves. 655. Amb. 624.
    
    
      
      
        3 Johns. Rep. 303. Gilb. on Ev. 98.
    
    
      
      
        Co. Litt. 238. a.
    
    
      
      
        shep. Touch. 305.
    
    
      
      
         Gilb. Eq. Rep. 236 4 Bac. Abr. (Leases,) 212.
    
    
      
      
        Co. Litt. 337. b. Harg. & Butler's notes. 2 Roll. Abr. 495.
    
    
      
       2 Salk 618. Bro. P. C. 150, 151. S. C. Co. Litt. 338. b.
    
    
      
      
         Cro Eliz. 873. Moore, 636. Keb. 285.
    
    
      
       2 Caines, 382. 1 Ch. Rep. 108. 1 Vern. l32. 195.
    
    
      
       4 Johns. Rep. 83.
    
    
      
      
        Co. Litt. 4. b.
      
    
    
      
       Shep. Touch. 70. Dyer, 112. Bac. Abr. Leases, (T.) Gilb. on Ev. 103. 113. 11 Co. 27. b. 4. Com. Dig. Fait, (E.)
      
    
   Per Curiam.

The claim of Wood to the premises is founded on the supposed lease of the 12th of December, 3793, and the lease of the 29th of January, 1794. He shows no other title than what one or the other of these leases may give him.

1. As to the lease of 1793. This lease was voluntarily surrendered by Wood to, the agent of Hamilton, the lessor, and destroyed on the 29th of January, 1794, when he accepted of a new lease.. Admitting that this lease was not surrendered, in due form of law, according to the requisition of the statute of frauds, so as to devest Wood of his interest under it, yet the existence and contents of this lease were not proved-with sufficient certainty to justify the plaintiff’s claim. As Wood voluntarily surrendered this deed to be destroyed, he ought not to avail himself of any obscurity or uncertainty? in respect to its contents. Every difficulty and presumption ought to be turned against him. He ought not to recover any 1 and under that lease, but-what appears, with absolute precision and certainty, to have been covered by it. And what is the testimony on this point ? The proof of the execution of the lease-is very loose. T. M. Wood says, that he thinks that he subscribed it as a witness; and there is much less proof that his instrument was an actual lease or conveyance of the land. Philips, who saw it once, was not positive whether it was a lease, or only a contract for a lease; and Platt, who received it, when surrendered, is equally uncertain on this point. But the location and extent of the lands conveyed, is shrouded in absolute uncertainty. T. M. Wood says it was for 200 acres, in the south-east corner of the lot, but whether it was to include the whole creek, he could not say, though that was his impression. The land, he says, had not then been surveyed. L Foster, who saw it in December, 1793, was not certain whether it secured the banks of the creek farther than the extent of the 200 acres; and he said it was not to extend further north than the south bounds of Stephens's land; but that as the creek had not then been traversed, it was not known whether the 200 acres would run over the creek, or not. E. Philips confirms the grant of the same bounds, though he adds that he did not remember the bounds exactly.

To support a claim to the creek and lands of the defendant, after a lapse of 16 years, upon such proof of the contents of a lease, so long ago voluntarily destroyed, by the consent of the party himself, and when, perhaps, the evidence of a valid surrender in writing existed on the lease, would be to create an extravagant and dangerous precedent. It was incumbent on the plaintiff to have stated its bounds with precision, or to have shown the reduction of those vague bounds to certainty, by an actual location at the time. There would not have been any inducement to the surrender, and for such anxiety as Wood discovered for a new lease in January, 1794, if the- first lease covered the creek in question. The plaintiff ought now to be confined to such location of the 200 acres, in and adjoining the south-east quarter of the lot, as can be made consistently with the defendant’s right; and there is land enough for such a location. It is not improbable that the quantity of acres may have depended on the contents of the land within certain definitive bounds, such, for instance, as south of Stephens's land, and east of the creek; and this supposition is the more plausible, because it appears that Wood never actually exerted any ownership or possession further west.

The title, then, to the premises, as founded on the first lease, must fall to the ground, and this source of title-was properly abandoned upon the argument, by, one of counse| for the plaintiff.

2. The cause depends upon the operation and. extent of the deed to Mulhollen, of the 26th of December, 1793} for if that deed does not cover the premises, the second lease to Wood undoubtedly does. No well founded objection can be made to the validity of this deed, and thfe single inquiry is touching its extent. It conveys the whole lot with the exception of Stephens's 200 acres, and “ 200 acres to M. Wood, and Rosemark's 40 acres, both being taken off the south-east corner of said lot.” This deed clearly conveys the; land in dispute, unless it be contracted by the exception. But Stephens's 200 acres in the north-east corner, and the other 240 acres, can all be located, without any violent construction, so as not to touch the creeks, mills, or possessions of the defendant» In a case in which the location of the 200 acres is so extremely vague, this ought to be done, because the posT sessions taken at the time áre to be considered as a practical location, by the mutual consent of the parties. It is an old principle of law, that exceptions in a deed, and every uncertainty, are to be taken favourably for the grantee, (Co. Litt. 183. a. 9 East, 15. 3 Johns. Rep. 387.) NoW it appears that Mulhollen took possession, immediately, under his deed, and that exclusive possession has been had, and valuable improvements made, under that deed, on the lands in question, and that Wood, and'those under him, have never possessed westerly, of the creek, and of Stephens's 200 acres. He ought, then, at this day, to be restrained from setting up any new location, not absolutely necessary to give him his quantity of land, and which invades the possession of the defendant. Mulhollen’s deed shows that the title to such possession is out of the lessors of the plaintiff., Judgment ought, therefore, to be rendered for the defendant.

Judgment accordingly. 
      
       The reporter was absent, and did not hear the counsel in. reply.
     