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or to declare,
recovery was duly suffered. And this may suffice to give the student a general idea of common recoveries, the last species of assurances by matter of record.
Before I conclude this head, I must add a word concern- of deeds to lead, ing deeds to lead, or to declare, the uses of fines, and of the uses of fines recoveries. For if they be levied or suffered without any good consideration, and without any uses declared, they, like other conveyances, enure only to the use of him who levies or suffers them (i). And if a consideration appears, yet, as the most usual fine “sur cognizance de droit, come
ceo, &-c.” conveys an absolute estate, without any limitations, to the cognizee; and as common recoveries do the same to the recoveror, these assurances could not be made to answer the purpose of family settlements, (wherein variety of uses and designations is very often expedient,) unless their force and effect were subjected to the direction of other more complicated deeds, wherein particular uses can be more particularly expressed. The fine or recovery itself, like a power once gained in mechanics, may be applied and directed to give efficacy to an infinite variety of movements in the vast and intricate machine of a voluminous family settlement. And if these deeds are made previous to the fine or recovery, they are called deeds to lead the uses; if subsequent, deeds to declare them. As, if A., tenant in tail, with reversion to himself in fee, would settle his estate on B. for life, remainder to C. in tail, remainder to D. in fee; this is what by law he has no power of doing effectually, while his own estate-tail is in being. He therefore usually, after making the settlement proposed, covenants to levy a fine (or if there be any intermediate remainders, to suffer a recovery) to E., and directs that the same shall enure to the uses in such settlement mentioned. This is now a deed to lead the uses of the fine or recovery; and the fine when levied, or recovery when suffered, shall enure to the uses so specified, and no other. For though E., the cognizee or recoveror, hath a fee simple vested in himself by the fine or recovery; yet, by the operation of this deed, he be*comes a mere instrument or conduit-pipe, seised only to [ * 364 ] the use of B., C., and D., in successive order : which use is executed immediately, by force of the statute of uses (k). (i) Dyer, 18.
more clearly illustrated by example. (k) This doctrine may perhaps be In the deed or marriage settlement in
Or, if a fine or recovery be had without any previous settlement, and a deed be afterwards made between the parties, declaring the uses to which the same shall be applied, this will be equally good as if it had been expressly levied or suffered in consequence of a deed directing its operation to those particular uses. For, by statute 4 & 5 Ann. c. 16, in
c dentures to declare the uses of fines and recoveries, made after the fines and recoveries had and suffered, shall be good and effectual in law, and the fine and recovery
shall enure to such uses, and be esteemed to be only in trust, notwithstanding any doubts that had arisen on the statute of frauds, 29 Car. II. c. 3, to the contrary (15).
the Appendix, No. II. s. 2, we may Barker, and the remainders expectant suppose the lands to have been origi. thereon, that a recovery be suffered of nally settled on Abraham and Cecilia the premises ; and it is thought proper Barker for life, remainder to John (for though usual it is by no means Barker in tail, with divers other re- necessary; see Forrester, 167,) that in mainders over, reversion to Cecilia order to make a good tenant of the Barker in fee ; and now intended to freehold or tenant to the præcipe, be settled to the several uses therein during the coverture, a fine should be expressed, viz. to Abraham and Ceci. levied by Abraham, Cecilia, and John lia Barker, till the marriage of John Barker; and that the recovery itself Barker with Catherine Edwards, and be suffered against this tenant to the then to John Barker for life ; re- præcipe, who shall vouch John Barmainder to trustees to preserve the ker, and thereby bar his estate--tail, contingent remainders; remainder to and become tenant of the fee-simple his wife Catherine for life, for her by virtue of such recovery; the uses jointure; remainder to other trustees, of which estate so acquired are to be for a term of five hundred years ; re- those expressed in this deed. Accordmainder to the first and other sons of ingly, the parties covenant to do these the marriage in tail ; remainder to the several acts (see pag. viii.); and in daughters in tail; remainder to John consequence thereof the fine and reBarker in tail; remainder to Cecilia covery are had and suffered, (No. IV. Barker in fee. Now, it is necessary,
and No. V.,) of which this conveyin order to bar the estate-tail of John ance is a deed to lead the uses.
(15) By the statute of 7 Geo. IV. Ves. 576; Green v. Stephens, 17 Ves. c. 45, a person who would be entitled 79.) It has also been determined, to an estate-tail in lands directed to that the act applies only when the be purchased under a settlement or right is clear and indisputable; and will, may elect to take the money that, where there is any question as without having it so invested. But to the right, the court is not, upon an before an order under the statute is ex parte petition, to enter into that made, the court always directs a re- question, in the absence of any of the ference to the Master, to inquire whe- parties interested. (Ex parte Sterne, ther the parties have in any manner 6 Ves. 157; Ex parte Rees, 3 Ves. & encumbered, or settled their interests Bea. 11.) in the money. (Ex parte Hodges, 6
OF ALIENATION BY SPECIAL CUSTOM.
We are next to consider assurances by special custom, ob- of alienation of
copyhold lands. taining only in particular places, and relative only to a particular species of real property. This, therefore, is a very narrow title; being confined to copyhold lands (1), and such customary estates as are holden in ancient demesne (2), or in manors of a similar nature; which, being of a very peculiar kind, and originally no more than tenancies in pure or privileged villenage, were never alienable by deed; for, that might tend to defeat the lord of his signiory, it is therefore a forfeiture of a copyhold (a). Nor are they transferable by matter of record, even in the king's courts (3), but only in the court (4) baron of the lord. The method of doing
(a) Litt. s. 74.
(1) See ante, pp. 95 & 97.
holds, it is said by counsel, that it (2) See ante, pp. 99 & 100, with can be only by plaint in the lord's note (51) to chapter 6.
court; but, that is quite a mistake. (3) Littleton, (sect. 76,) was pro- There was a time when it was doubted bably our author's authority for the whether you could proceed by the doctrine stated in the text. Littleton king's writ,-—whether you could bring says, “ tenants by copy of court roll an ejectment for a copyhold. But all shall neither implead nor be im- that has given way, and the king's pleaded for their tenements by the courts are now open to ejectments for king's writ. But, if they will im- copyholds, in the same way as for plead others for their tenements, they freeholds. What is said by Littleton, shall have a plaint entered in the (sect. 76,) applies generally to all lord's court.” But, in Widdowson v. actions, but we know that, at this Earl of Harrington, (1 Jac. & Walk. day, it is not true to that extent." 549,) the Master of the Rolls ob. And see post, p. 369. served, “ with respect to the manner (4) See ante, pp. 54, 90, 100. Vol. of proceeding for the recovery of copy- III. p. 33. The 50th, 51st, 52nd, VOL. II.
this is generally by surrender; though in some manors, by special custom, recoveries may be suffered of copyholds (b); but these differing in nothing material from recoveries of free land, save only that they are not suffered in the king's courts, but in the court baron of the manor, I shall confine myself
to conveyances by surrender, and their consequences. By surrender. Surrender(5), sursumredditio, is the yielding up of the
estate by the tenant into the hands of the lord, for such purposes as in the surrender are expressed. As, it may be, to the use and behoof of A. and his heirs; to the use of his
own will; and the like. The process, in most manors, is, [ * 366 ] that *the tenant comes to the steward, either in court, (or, if
the custom permits, out of court) or else to two customary tenants of the same manor, provided there be also a custom to warrant it; and there, by delivering up a rod, a glove, or other symbol, as the custom directs, resigns into the hands of the lord, by the hands and acceptance of his said steward, or of the said two tenants, all his interest and title to the estate; in trust to be again granted out by the lord, to such persons and for such uses as are named in the surrender, and the custom of the manor will warrant. If the surrender bé made out of court, then, at the next or some subsequent court, the jury or homage must present and find it upon their 'oaths; which presentment is an information to the lord or his steward of what has been transacted out of court. Immediately upon such surrender, in court, or upon presentment of a surrender made out of court, the lord by his steward grants the same land again to cestuy que use, (who is sometimes, though rather improperly, called the surrenderee,) to hold by the ancient rents and customary services; and thereupon admits him tenant to the copyhold, accord
(6) Moor, 637.
53rd, and 54th sections of the statute table estate-tail may be disposed of,
Court of Chan
on which the
ing to the form and effect of the surrender, which must be exactly pursued. And this is done by delivering up to the new tenant the rod, or glove, or the like, in the name, and as the symbol, of corporal seisin of the lands and tenements. Upon which admission he pays a fine to the lord according to the custom of the manor, and takes the oath of fealty.
In this brief abstract of the manner of transferring copyhold estates, we may plainly trace the visible footsteps of the by the lord, the feodal institutions. The fief, being of a base nature and cery enforced tenure, is unalienable without the knowledge and consent of of the trusts upthe lord. For this purpose it is resigned up, or surrendered surrender was into his hands. Custom, and the indulgence of the law, which favours liberty, has now given the tenant a right to name his successor; but formerly it was far otherwise (6). And I am apt to suspect that this right is of much the same antiquity with the introduction of uses with respect to freehold lands; for the alienee of a copyhold had merely jus fiduciarium, for which *there was no remedy at law, but only [ * 367 ] by subpæna in Chancery (c). When therefore the lord had accepted a surrender of his tenant's interest, upon confidence to re-grant the estate to another person, either then expressly named or to be afterwards named in the tenant's will, the Chancery enforced this trust as a matter of conscience; which jurisdiction, though seemingly new in the time of Edward IV. (d), was generally acquiesced in, as it opened the way for the alienation of copyholds, as well as of freehold estates, and as it rendered the use of them both equally devisable by testament. Yet, even to this day, the new tenant cannot be admitted but by composition with the lord, and paying him a fine by way of acknowledgment for the license of alienation. Add to this the plain feodal investiture (7), by delivering the symbol of seisin in presence of the other tenants in open court; " quando hasta vel aliud
corporeum quidlibet porrigitur a domino se investituram facere dicente; quæ saltem coram duobus vasallis solemni
(c) Cro. Jac. 568.
(d) Bro. Abr. tit. Tenant per Copie, 10.
(6) See ante, pp. 95 and 97, with the notes thereto.
(7) See ante, p. 54, and note.