majority">By the Court, Johnson, J.

Unless the conventional relation of landlord and tenant existed between the parties at the commencement of the summary proceedings before the county judge, he had no jurisdiction to entertain such proceedings, but was bound to dismiss them whenever it was established that no such relation was then subsisting. The statute authorizing summary proceedings against tenants who hold over applies only where the conventional relation exists, and not where it is created by operation of law'. (Evertson v. Sutton, 5 Wend. 281.) And where the tenant is proceeded against in this manner on the ground that he holds over without the permission of his landlord, after default in the payment of rent, pursuant to the agreement under which such premises are held, it must be made to appear not only that such holding over is without the permission of the landlord, but that the tenant holds the premises under the agreement, pursuant to which the rent is claimed to be due, at the time the proceedings are instituted. (2 R. S. 512, § 28, sub. 2.) If the tenant is then holding under some new' agreement with the landlord, he cannot be dispossessed under this statute on the ground that he is in default in the payment of rent under a prior agreement. This is manifestly the true meaning and interpretation of the statute.

The county judge decided correctly, I think, that the instrument between the parties dated 28th of June, 1847, was a contract for the sale and purchase of the premises, and not a conveyance. The plaintiff’s counsel contended there, as he has here, that it was a co'nveyance, and vested the title in the plaintiff. But the instrument expressly provides that the defendant shall thereafter give a warranty deed for the premises when one half the stipulated price is paid, and take security upon the property for the residue. Although there are words of conveyance in presentí in an instrument, still if it appears from the whole instrument that a further conveyance was contemplated by the parties, it will be construed to be an agreement to convey, and not a conveyance. (Jackson v. Moncrief, 5 Wend. 26.)

By this instrument then the relation of vendor and vendee *626was created between the parties, which is in no sense a tenancy, at least within the purview of the statute which authorizes summary proceedings. (Kenada v. Gardner, 3 Barb. S. C. Rep. 589.) But the county judge held that notwithstanding this agreement to sell, the plaintiff was still a tenant holding under the lease of the 3d of June, 1846, and that the contract Avhich gave to the plaintiff an equitable title only, merged in the lease which created in him a legal estate. But this I think is clearly a mistake. The question of merger, in no way that I can perceive, arises in the case. It is a case of surrender instead of merger. The difference between a surrender and a merger is, that the former is the act of the party, and the latter the act of the law. (4 Kent, 100.) The surrender may be made expressly, or it may be implied in law. The laAV implies a surrender when an estate incompatible with the existing estate is accepted, or the lessee takes a new lease for the same land. It is said in Sheppard’s Touchstone, “ and this rule holdeth albeit the second lease be for a less time than the first, as if lessee for life accept a lease for years, or lessee for tAventy years accept a lease for two years.” (2 Shep. Touch. 301. 4 Kent, 103. Livingston v. Potts, 16 John. 28.)

The first instrument between the parties is a lease for the term of five years from the 1st of January, 1847, at a rent of $950 for the whole term, $150 of which was payable the 1st of January, 1848, and the residue in four equal annual payments thereafter. This lease contains a provision that in case the defendant should sell the premises before the expiration of the term, the plaintiff should quit and surrender possession of the premises on the 1st day of March after said sale. The parties therefore contemplated a surrender of the estate created by the lease, and stipulated for it in case of a sale. The second instrument, as as we have already seen, is an agreement to sell and convey. By this instrument the defendant sells the premises to the plaintiff for $4800, to be paid in twelve equal annual payments, and agrees to give the latter a warranty deed free from all incumbrance when one half the payments are made, and to take security on the premises for the residue of the'pay*627ments. It is further stipulated in this instrument that the plaintiff by making the payments, may hold and enjoy, or sell and transfer the premises. It will be seen that by the second instrument not only was a new relation created different in all respects from the former one, but the right of possession and enjoyment was entirely changed. And besides, the event upon which the parties stipulated for a surrender of the lease was brought about by the voluntary act of both when the last agreement was executed, which was before any rent had become due upon the lease. This circumstance of itself, in the absence of any other, would afford a strong ground of presumption that the parties intended to work a surrender of the lease.

It is contended by the defendant’s counsel that the provision in the second agreement by which the plaintiff had his election to take the farm or not, at the expiration of the term of five years, is evidence that the parties intended to keep the lease on foot, and not to cancel it. But the privilege of taking or not, provided for in that clause, evidently refers to taking or completing the purchase under that contract; because it is provided in the same connection that in case the plaintiff elects at the expiration of the specified term not to take, the defendant shall pay back to the plaintiff all he has paid over $200 a year, with interest from the time it was paid. This was wholly inconsistent with the lease. It gave to the defendant in case of rescission by the plaintiff, $200 per annum for the use and occupation of the premises, instead of $150 provided for by the lease. On the whole, I think it is clear that the lease was surrendered by the parties upon the execution of the agreement of sale, and was of no force or validity when these proceedings were commenced. The plaintiff was then holding the premises as vendee, under his agreement. His relation to his former landlord was entirely changed by his contract to purchase. He was not holding without the permission of his former landlord, as is proved by the agreement, and there was no rent due by the instrument under which he was occupying. In short he was no tenant, for any of the purposes contemplated by the act under which the proceedings were had, and the county judge *628had no jurisdiction to proceed to dispossess him. The moment it was made to appear that the relation between the parties was that of vendor and vendee, the jurisdiction of the judge to proceed further was at an end. He could not continue his jurisdiction or aid it in any degree by deciding that the plaintiff was a tenant, when in law he was not. The law gives the jurisdiction, and upon all questions both of law and fact affecting jurisdiction the officer attempting to exercise decides at his peril, and he is in nowise aided by an erroneous interpretation of the law. The judge could not by his decision make a tenancy of that which the law holds not to be such, and thus make proceedings valid which were otherwise void.

[Monroe General Term,December 5, 1853.

Welles, Selden and Johnson, Justices.]

The question whether or not the plaintiff was a tenant was strictly a question of jurisdiction, and upon that question the evidence before the judge, and his decision thereon, are properly embraced in the return, and are open for review. (The People v. Goodwin, 1 Selden 568.) This view of the case renders it unnecessary to discuss the question as to whether the county judge should have dismissed the proceedings on the preliminary affidavit presented by the plaintiff, on his appearance, showing that an action was pending in the supreme court between the same parties, in which the defendant was seeking the same relief.

The determination of the judge that the plaintiff was holding over as a tenant without the permission of his landlord, after default in the payment of rent, pursuant to the agreement under which he held, was clearly erroneous, and roust with all the other procedings before him, be reversed and set aside.

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