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comes a mere instrument or conduit-pipe, seised only to the use of B., C., and D., in successive order: which use is executed immediately, by force of the statute of uses (k). 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, indentures 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 (7).
(k) This doctrine may perhaps be in order to bar the estate-tail of John more clearly illustrated by example. In Barker, and the remainders expectant the deed or marriage settlement in the thereon, that a recovery be suffered of Appendix, No. II. s. 2, we may sup- the premises; and it is thought proper pose the lands to have been originally (for though usual it is by no means nesettled on Abraham and Cecilia Barker cessary; see Forrester, 167,) that in for life, remainder to John Barker in order to make a good tenant of the freetail, with divers other remainders over, hold or tenant to the præcipe, during reversion to Cecilia Barker in fee; and the coverture, a fine should be levied by now intended to be settled to the seve- Abraham, Cecilia, and John Barker; ral uses therein expressed, viz. to Abra- and that the recovery itself be suffered ham and Cecilia Barker, till the mar- against this tenant to the præcipe, who riage of John Barker with Catherine shall vouch John Barker, and thereby Edwards, and then to John Barker for bar his estate-tail, and become tenant life; remainder to trustees to preserve of the fee-simple by virtue of such rethe contingent remainders; remainder covery; the uses of which estate so acto his wife Catherine for life, for her quired are to be those expressed in this jointure; remainder to other trustees, deed. Accordingly, the parties covefor a term of five hundred years; re
nant to do these several acts (see pag. mainder to the first and other sons of viii); and in consequence thereof the the marriage in tail; remainder to the fine and recovery are had and sufferdaughters in tail; remainder to John ed, (No. IV. and No. V.), of which Barker in tail; remainder to Cecilia this conveyance is a deed to lead the Barker in fee. Now, it is necessary,
(7) By the statute of 7 Geo. IV. c. an estate tail in lands directed to be 45, a person who would be entitled to purchased under a settlement or will, may elect to take the money without covery to have been completed in that having it so invested. But, where a term. (Ex parte Frith, 8 Ves. 609). recovery would have been necessary to And before an order under the statute bar a remainder-man's chance of suc. is made, the court always directs a recession, in case the money had been ference to the Master, to inquire whelaid out in lands, a court of equity, if ther the parties have in any manner the funds are under its control, will not encumbered, or settled their interests. allow them to be paid over to the ten- in the money. (Ex parte Hodges, 6 Ves. ant in tail, until such time as he might 576, Green v. Stephens, 17 Ves. 79). actually have suffered a recovery; that It has also been determined, that the is to say, he cannot get the money un- act applies only when the right is clear less he should be living on the second and indisputable; and that, where there day of the ensuing term, when he has is any question as to the right, the presented bis petition during the sit- court is not, upon an ex parte petition, tings out of term; (Ex parte Bennett, to enter into that question, in the aband Ex parte Dollman, 6 Ves. 116); or, sence of any of the parties interested. if the application be made in term, (Ex parte Sterne, 6 Ves. 157. Ex parte unless sufficient time remains after the Rees, 3 Ves. & Bea. 11). presentation of the petition, for a re
OF ALIENATION BY SPECIAL CUSTOM. .
Of alienation of We are next to consider assurances by special custom, obcopyhold 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 antient 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, as 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 baron of the lord. The method of doing this is generally by surrender; though in some manors, by special custom, recoveries may be suffered of copyholds (6); 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 (4), sursum redditio, is the yielding up of the
(a) Litt. s. 74.
(6) Moor. 637.
(1) See ante, pp. 95 & 97.
(2) See ante, pp. 99 & 100, with note (35) to chapter 6.
(3) See ante, p. 326.
(4) Littleton, (sect. 76), was probably our author's authority for the doctrine stated in the text. Littletou says,
“tenants by copy of court roll shall neither
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, that *the tenant comes to the steward, either in court, (or, if [ * 366 ] 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 be 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 antient rents and customary services; and thereupon admits him tenant to the copyhold, according to the form and effect of the surrender which must be exactly pursued. And this is done by delivering up to
implead nor be impleaded for their te. a time when it was doubted whether
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 copybeing accepted hold estates, we may plainly trace the visible footsteps of the Court of Chan- feodal institutions. The fief, being of a base nature and cery enforced the performance tenure, is unalienable without the knowledge and consent of of the trusts up- the lord. For this purpose it is resigned up, or surrendered on which the surrender was into his hands. Custom, and the indulgence of the law,
, made. which favours liberty, has now given the tenant a right to
name his successor; but formerly it was far otherwise (5). 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 [ *367 ] fiduciarium, for which *there was no remedy at law, but only
by subpoena 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 licence of alienation. Add to this the plain feodal investiture (6), by delivering the symbol of seisin in presence of the other tenants in open court; “ quando hasta vel aliud cor
(c) Cro. Jac. 568.
(d) Bro. Abr. tit. Tenant per Copie, 10.
(5) See ante, pp. 95 and 97, with notes (29) and (30) to chapter 6.
(6) See ante, p. 54, and note (17) to chapter 4.