The same Term in the same Court. Bennet versus Westbeck.
THe Case was thus: Tenant for life, Remainder for life, Reversion in Fee, he in Remainder for life gives his Deed of Demise (with the assent of the first Tenant for life) upon the Land to a stranger in the absence of the Lessor, and said, that he surrendred to him in Reversion: And it was said, that this Surrender being without Deed was not good to him who was ab∣sent, and to confirm it, the case was put out of 27 H. 8. Where Mountague chief Iustice said, that if a Feoffment be made to four, and Livery is made to one in the absence of the other, but in name of all, if it be by Deed this shall enure to all, but if it be without Deed, then only to him to whom the Livery was made: So here this Surrender doth not enure to him in the Re∣version, being absent.
But Non aliocatur, for the sole point now in question, was, whether he in Remainder for life can surrender without Deed, and as to it this Rule was taken; viz. That that which cannot commence without Deed, cannot be granted without Deed, as a Rent, Reversion, common Advowson, &c. as 19 H. 6. 33. 14 H 7. 3. 1, & 2. Ph. & Mar. 110. 22. Ass Pl. 16. But in this case this took effect by Livery and not by Deed, and therfore might be determi∣ned without Deed.
Mountague and Haughton agreed that it might be surrendred without Deed, because it had its beginning without Deed, but it could not be gran∣ted over without Deed.