365 CHAPTER XXII. OF ALIENATION BY SPECIAL CUSTOM. copyhold lands. Of alienation of WE are next to consider assurances by special custom, obtaining 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 (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. Surrender (4), sursum redditio, is the yielding up of the By surrender. (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. (b) Moor. 637. (4) Littleton, (sect. 76), was probably our author's authority for the doctrine stated in the text. Littleton 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 nements by the King's writ. But, if they will implead others for their tenements, they shall have a plaint entered in the lord's court." But, in Widdowson v. Earl of Harrington, (1 Jac. & Walk. 549), the Master of the Rolls observed, "with respect to the manner of proceeding for the recovery of copyholds, it is said by counsel, that it can be only by plaint in the lord's court; but, that is quite a mistake. There was a time when it was doubted whether The surrender being accepted by the lord, the Court of Chan cery enforced the performance of the trusts up on which the surrender was made. 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 feodal institutions. The fief, being of a base nature and tenure, is unalienable without the knowledge and consent of the lord. For this purpose it is resigned up, or surrendered 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 (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 a copyhold estate, that it cannot properly be transferred by any other assurance. No feoffment or grant has any opera⚫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 Surrender the only mode of conveying copyholds. 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 (ƒ). A fine or recovery had of copyhold lands in the king's court may indeed, if not duly reversed, alter the (e) Feud. 1. 2, t. 2. (7) See ante, p. 45, with note (4) to chapter 4. (8) The statute of 55 Geo. III. c. 192, has made dispositions of copyhold estates by will effectual, although no previous surrender to the uses thereof may have been made. The act provides that this indulgence shall not operate in fraud of the lord of the manor, or of the crown; but, that the devisee shall be admitted only on payment of all such stamp duties, fees, and sums of money as would have been payable upon VOL. II. (f) Co. Copyh. s. 36. a surrender to the use of the will. The R R Practice there on. 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 of 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 trespasst: (h) t. tenir en franke fee. (g) Old Nat. Brev. t. briefe de recto |