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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 par
ticular 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
(6) Moor. 637.
(a) Litt. s. 74.
(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. Littleton
says, nants 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.
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 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.
poreum quidlibet porrigitur a domino se investituram facere dicente; quæ saltem coram duobus vasallis so“ lemniter fieri debet (e):" and, to crown the whole, the oath of fealty(7) is annexed, the very bond of feodal subjection. From all which we may fairly conclude, that, had there been no other evidence of the fact in the rest of our tenures and estates, the very existence of copyholds, and the manner in which they are transferred, would incontestably prove the very universal reception which this northern system of property for a long time obtained in this island; and which communicated itself, or at least its similitude, even to our very villeins and bondmen.
This method of conveyance is so essential to the nature of Surrender the a copyhold estate, that it cannot properly be transferred by only mode of
conveying copyany other assurance. No feoffment or grant has any opera- holds. • tion thereupon. If I would exchange a copyhold estate with another, I cannot do it by an ordinary deed of exchange at the common law, but we must surrender to each other's
use, and the lord will admit us accordingly. If I would devise a copyhold, I must surrender *it to the use of my last will [ *368 ] and testament (8); and in my will I must declare my intentions, and name a devisee, who will then be entitled to admission (f). A fine or recovery had of copyhold lands in the king's court may indeed, if not duly reversed, alter the (e) Feud. l. 2, t. 2.
(f) Co. Copyh. s. 36.
(7) See ante, p. 45, with note (4) to a surrender to the use of the will. The chapter 4.
act does not supply the defect of a sur(8) The statute of 55 Geo. III. c. render by a feme coverte, where, by the 192, has made dispositions of copyhold custom of the manor, such surrender is estates by will effectual, although no necessary to substantiate her will; for, previous surrender to the uses thereof in such cases, a separate examination of may have been made. The act provides the feme coverte is essential to a free that this indulgence shall not operate disposal of the property by her; and in fraud of the lord of the manor, or of the statute in question was intended to the crown; but, that the devisee shall supply mere matter of form only. (Doe be admitted only on payment of all v. Bartle, 5 Barn. & Ald. 507. S. C. such stamp duties, fees, and sums of i Dowl. & Ryl. 91). money as would have been payable upon VOL. II.
1. The surrender.
tenure of the lands, and convert them into frank fee (g), which is defined in the old book of tenures (h) to be “land “pleadable at the common law:” but, upon an action on the case, in the nature of a writ of deceit, brought by the lord in the king's court, such fine or recovery will be reversed, the lord will recover his jurisdiction, and the lands will be restored to their former state of copyhold (i) (9).
In order the more clearly to apprehend the nature of this peculiar assurance, let us take a separate view of its several parts; the surrender, the presentment, and the admittance.
1. A surrender, by an admittance, subsequent whereto the conveyance is to receive its perfection and confirmation, is rather a manifestation of the alienor's intention, than a transfer of any interest in possession. For, till admittance ef cestuy que use, the lord taketh notice of the surrenderor as his tenant; and he shall receive the profits of the land to his own use, and shall discharge all services due to the lord. Yet the interest remains in him not absolutely, but sub modo; for he cannot pass away the land to any other, or make it subject to any other incumbrance than it was subject to at the time of the surrender. But no manner of legal interest is vested in the nominee before admittance. If he enters, he is a trespasser, and punishable in an action of trespass f:
(8) Old Nat. Brev. t. briefe de recto (h) t. tenir en franke fee. clauso. F. N. B, 13.
(i) See Vol. III. pag. 166*.
(9) Where a fine is levied, or a recovery suffered, of lands held in antient demesne, the lord may reverse it by writ of deceit; and such writ may be brought by the lord against the parties to the fine and the cestui que use ; by means of which he will obtain judgment, not only for damages (which are usually remitted), but also to recover his court and jurisdiction over the lands,
and to annul the former proceedings. (Rex v. Mead, 2 Wils. 17. Zouch v. Thompson, 1 Ld. Raym. 177. S. C. 3 Lev. 419. Anonym. 1 Leon. 290, c. 321. 2nd Instit. 217).
The statute of 59 Geo. III. c. 80, authorizes the acceptance by attorney of common recoveries of estates held in antient demesne; and see 9 Geo. I.
+ Mr. Christian observes, "it has after the surrender, where there was an been determined that the surrenderee admittance of the nominee before trial. may recover in an ejectment against (1 T. R. 600).” the surrenderor, upon a demise laid