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Copyholds

were es

There is one species of estates at will that deserve a more tates at will. particular regard than any other; and that is, an estate held by copy of court roll; or, as we usually call it, a copyhold estate. This, as was before observed, was, in its original and foundation, nothing better than a mere estate at will. But the kindness and indulgence of successive lords of manors, having permitted these estates to be enjoyed by the tenants and their heirs, according to particular customs established in their respective districts; therefore, though they still are held at the will of the lord, and so are, in general, expressed in the court rolls to be, yet that will is qualified, restrained, and limited to be exerted according to the custom of the manor. This custom, being suffered to grow up by the lord, is looked upon as the evidence and interpreter of his will: his will is no longer arbitrary and precarious; but fixed and ascertained by the custom to be the same, and no other, that has time out of mind been exercised and declared by his ancestors. A copyhold tenant is, therefore, now full as properly a tenant by the custom as a tenant at will, the custom having arisen from a se[148] ries of uniform wills. And, therefore, it is rightly observed by Calthorpe, that "copyholders and customary tenants differ not so much in nature as in name; for, although some be called copyholders, some customary, some tenants by the virge, some base tenants, some bond tenants, and some by one name, and some by another, yet do they all agree in substance and kind of tenure all the said lands are holden in one general kind, that is, by custom and continuance of time; and the diversity of their names doth not alter the nature of their tenure."

Copyholder be ten

Almost every copyhold tenant being, therefore, thus tenant my varies at the will of the lord, according to the custom of the manor ;" ly, according which customs differ as much as the humor and temper of the respective ancient lords (from whence we may account for their great variety), such tenant, I say, may have, so far as the custom warrants, any other of the estates or quantities of inter

to the cus

tom.

4 Page 95.

subsist, notwithstanding the payment of
an annual rent. But an intention to this
effect must clearly appear; a mere agree-
ment to hold "at will" would not be
sufficient. Where no rent or periodical
compensation is paid, as where stables
are let indefinitely, with an agreement
that the lessor shall have all the dung
(4 Taunt., 128), or where a purchaser is
let into possession before the execution
of the conveyance (5 Moo. & P., 370;
5 Mee. & W., 14), or where a minister
is allowed by the trustees for a congre-
gation to occupy a house rent free (10
B. & Cr., 718; see 2 Cr. & J., 636; 9
Car. & P., 494), there the inference in

On Copyholds, 51, 54.

favor of a yearly tenancy does not arise. See, also, the cases between mortgagor and mortgagee, cited in note (17) to p. 150.

(14) As to the copyhold tenure in the north of England, called "tenant right," which is not said to be held at the will of the lord, see 4 East, 270; 4 Per. & D., 579. An estate held by copy of court roll according to the custom of the manor, though not expressed to be at the will of the lord, comes under the general description of a copyhold. (2 Cr., M. & R., 503.)

est, which we have hitherto considered, or may hereafter con-
sider, and hold them united with this customary estate at will.
A copyholder may, in many manors, be tenant in fee-simple, in
fee-tail, for life, by the courtesy, in dower, for years, at suffer-
ance, or on condition: subject, however, to be deprived of these
estates upon
the concurrence of those circumstances which the
will of the lord, promulged by immemorial custom, has declared
to be a forfeiture or absolute determination of those interests;
as, in some manors, the want of issue male, in others, the cut-
ting down timber, the non-payment of a fine, and the like. Yet
none of these interests amount to freehold; for the freehold of
the whole manor abides always in the lord only,s who hath
granted out the use and occupation, but not the corporeal seizin
or true legal possession, of certain parcels thereof, to these his
customary tenants at will.

holds are

The reason of originally granting out this complicated kind Why copy. of interest, so that the same man shall, with regard to the same not freeland, be at one and the same time tenant in fee-simple, and also holds. tenant at the lord's will, seems to have arisen from the nature of villenage tenure; in which a grant of any estate of freehold, [149] or even for years absolutely, was an immediate enfranchisement of the villein. The lords, therefore, though they were willing to enlarge the interest of their villeins, by granting them estates which might endure for their lives, or sometimes be descendible to their issue, yet not caring to manumit them entirely, might probably scruple to grant them any absolute freehold ; and for that reason it seems to have been contrived that a power of resumption at the will of the lord should be annexed to these grants, whereby the tenants were still kept in a state of villenage, and no freehold at all was conveyed to them in their respective lands; and, of course, as the freehold of all lands must necessarily rest and abide somewhere, the law supposed it still to continue and remain in the lord. Afterward, when these villeins became modern copyholders, and had acquired by custom a sure and indefeasible estate in their lands, on performing their usual services, but yet continued to be styled in their admissions tenants at the will of the lord-the law still supposed it an absurdity to allow that such as were thus nominally tenants at will could have any freehold interest; and, therefore, continued, and now continues to determine, that the freehold of lands so holden abides in the lord of the manor, and not in the tenant; for, though he really holds to him and his heirs forever, yet he is also said to hold at another's will. But with regard to certain other copyholders, of free or privileged Customary tenure, which are derived from the ancient tenants in villein socage," and are not said to hold at the will of the lord, but only according to the custom of the manor, there is no such absurdity

Litt., § 81. 2 Inst., 325.

Mirr., c. 2, § 28. Litt., § 204, 5, 6.

"See page 98, &c.

freeholds.

in allowing them to be capable of enjoying a freehold interest; and, therefore, the lord doth not suppose the freehold of such lands to rest in the lord of whom they are holden, but in the tenants themselves, who are sometimes called customary free[150] holders, being allowed to have a freehold interest, though not of a freehold tenure.15

Certain copyholds little inferior to freeholds.

Enfran

chisement

However, in common cases, copyhold estates are still ranked (for the reasons above mentioned) among tenancies at will; though custom, which is the life of the common law, has established a permanent property in the copyholders, who were formerly nothing better than bondmen, equal to that of the lord himself, in the tenements holden of the manor; nay, sometimes even superior; for we may now look upon a copyholder of inheritance, with a fine certain, to be little inferior to an absolute freeholder in point of interest, and in other respects, particularly in the clearness and security of his title, to be frequently in a better situation.1

▾ Fitz. Abr., tit. Corone, 310; Cus-
tom, 12.
Bro. Abr., tit. Custom, 2, 17;
Tenant per Copie, 22. 9 Rep., 76. Co.

Litt., 59. Co. Copyh., § 32. Cro. Car., 229. 1 Roll. Abr., 562. 2 Ventr., 143. Carth., 432. Lord Raym., 1225.

(15) See Blackstone's Considerations estate, resume their copyhold character. on Copyholders, Law Tracts, 5th ed., (Watk., Cop., 362; 1 Jac. & W., 621; 4 vol. 1. The places in which the great- East, 270.) But an absolute enfranchiseer part of these customary freeholds ex- ment is not hindered by the limited exists, are Cumberland, Westmoreland, tent of the copyholder's estate; who, if Oversands, in Lancashire, the south- he be only tenant for life, will take at western parts of Durham and Northum- common law a fee-simple, subject to a berland, and the northern border of York- trust in equity for those in remainder. shire. Among females of equal degree, the whole estate sometimes descends to the eldest, instead of being divided. (See Third Real Property Report, p. 20; 4 Per. & D., 579.)

(16) The customary tenure may be put an end to either by enfranchisement or by extinguishment.

(Id.; 1 B. C. C., 515; 1 B. & Cr., 457; 2 D. & Ry., 511.) Enfranchisement has been said not to alter the descent of a copyhold fee descended ex parte materná (1 B. & Cr., 457); but this is quite inconsistent with principle.

Extinguishment is effected by a union of the copy hold and the freehold titles in the same person, and is distinguished from enfranchisement by the circumstance that the copyholder by enfran chisement always gains the freehold; but by extinguishment, he either parts with all his interest, or takes back, at most, an estate for years at common law.

and extinguishment Enfranchisement is a conveyance or of copyholds. release (for it is immaterial in what form the transaction is effected, so that it is done either by feoffment and writing, or by deed, and the intention is manifest) by the lord (or his alienee) of his freehold estate, or of his seigniorial rights, to Some extinguishments destroy the tenthe tenant; whereupon the latter imme- ure irretrievably, others do not. If the diately becomes seized of the lands in extinguishment happen by an escheat or common socage, as tenant to the same surrender of the copyhold to the lord, superior of whom the lord holds the the lands remain parcel of the manor, manor (4 T. R., 443); and the lands are and may, at a future time, be regranted or forever and irretrievably discharged redemised to hold by copy as before; but from all their customary incidents, rights if once the particular lands become sepof common, &c. (Cro. Jac., 253.) The arated from the manor, while the copyenfranchisement is in its nature a release hold tenure is suspended or extinguishof the reversion, and passes only such ed, they can never afterward be granted estate as the lord may have, and is, there to hold by copy. But in no case can fore, incomplete unless he has the fee- the demisable quality of the lauds be simple. If he had a mere life estate, forever destroyed without the act of the the lands, upon the expiration of that owner of the fee-simple of the manor.

III. An estate at sufferance is, where one comes into possession of land by lawful title, but keeps it afterward without any title at all. As, if a man takes a lease for a year, and, after the year is expired, continues to hold the premises without any fresh leave from the owner of the estate. Or, if a man maketh a lease at will, and dies, the estate at will is thereby determined; but if the tenant continueth possession, he is tenant at sufferance. But no man can be tenant at sufferance against the king, to whom no laches, or neglect, in not entering and ousting the tenant is ever imputed by law; but his tenant, so holding over, is considered as an absolute intruder. But, in the case of a subject, this estate may be destroyed whenever the true owner shall make an actual entry on the lands, and oust the tenant; for, before entry, he can not maintain an action of tresw Co. Litt., 57. * Ibid.

(Cro. El., 459; 5 Mau. and S., 154.) Thus, if the lord, being tenant in fee, enfeoff a stranger of the particular lands, and the copyholder surrender to the use of the feoffee, the demisable quality of the copyholds is gone forever; but if a copyholder bargain and sell his copyholds to the lord, or surrender to his use, the lord, or any future lord, may at any time regrant them to hold by copy, or may destroy their grantable quality by conveying them to a stranger. If in either of these cases the lord had been tenant for life, the customary nature of the lands would have been restored on his death. (1 Russ. & M., 33.) And if the union of the interests take place in different rights, as where a copyholder marries a feme seignioress, or the lord marries a feme copyholder, the tenure is only suspended during such union. (Co. Copyh., s. 62.) Again, if a partial estate only in the copyhold is passed to the freeholder, there is only a suspension pro tanto. (Id., s. 34.)

"If a copyhold is forfeited to the lord, or escheats, or otherwise comes to the lord's hands, if the lord makes a lease for years, or for life, or other estate, by deed or without deed, this land can never after be regranted by copy, for the custom is discharged, because, during such estates, the land was not demised nor demisable by copy. So, if the lord makes a feoffment in fee thereof upon condition, and afterward enters for the condition broken, yet it can never be regranted by copy. But if the lord keeps the land in his hands for a long time, or lets it at will, he, his heirs or assigns, may well regrant it at his pleasure. So, if the interruption is wrongful, or if the lord is disseized, and the disscizor dies seized, or if the land

III. Estates

at sufferance.

is recovered against the lord by false Enfran verdict or erroneous judgment; in these chisement cases, till the land is recovered or the and extin judgment reversed by the lord of the guishment manor, the land was not demised or de- of copyholds. misable, and yet, after the land is recontinued, it is grantable again by copy; but if the land so forfeited or escheated, before any new grant made, is extended upon a statute or recognizance acknowledged by the lord, or if the wife of the lord, in a writ of dower, has this land assigned to her, although these impediments are by acts in law, yet, inasmuch as the interruptions are lawful, the lands can never after be granted by copy. If a copyholder accepts a lease for years of the lord of his copyhold, the copyhold is destroyed forever, and can never be granted again. If the copyholder takes a lease for years of the manor, by that his copyhold has not continuance; but such lessee may regrant the copyhold to whom he will, for this land was always demised or demisable." (4 Rep., 31; see 3 B. & Al., 153.)

Such are the common-law rules as to the destruction and enfranchisement of copyholds. By a recent statute (4 & 5 Vict., c. 35, amended by 6 & 7 Vict., c. 23), provision is made for the enfranchisement of copyholds by lords having limited interests, and for the commutation of manorial rights, by agreement of a certain proportion of the parties interested, with the approbation of "The Copy hold Commissioners" (at present the Tithe Commissioners). When an enfranchisement is made under the act, the tenant does not lose his commonable rights; and the new estate follows the course of devolution to which the old copyhold estate was subject.

pass against the tenant by sufferance, as he might against a stranger; and the reason is, because the tenant being once in by a lawful title, the law (which presumes no wrong in any man) will suppose him to continue upon a title equally lawful, unless the owner of the land by some public and avowed act, such as entry is, will declare his continuance to be tortious, or, in common language, wrongful."

y Co. Litt., 57.

(17) A tenant at sufferance is where a man cometh to the possession first lawfully, and holdeth over; but there is a diversity when one cometh to a particular estate in land by the act of the party, and where by act in law, for if the guardian hold over, he is an abator, because his interest came by act in law. (Co. Litt., 271, a.) This is because there can be no presumption of the owner's assent. So, if the tenant pretend to any larger estate, he is a disseizor. The important distinction between an estate at will and a holding at sufferance is, that in the former case there is a privity of Tenancy un- contract, express or implied, between der mortga- the parties, which does not exist in the latter. Both tenants are equally subject to immediate ejection; but before an action of ejectment can be commenced to recover the possession from a tenant at will, the landlord must put an end to the will by notice or demand of possession; which is not requisite in case of a holding at sufferance, under which, indeed, the only privilege which the tenant enjoys is, to be excused from liability as a trespasser in respect of his past occupation.

ges.

Some discussion has arisen as to the exact description of the situation of a mortgagor in possession, after he has conveyed the legal estate to the mortgagee. A mortgage at law is a conveyance of a legal estate, upon condition to be void upon repayment of a sum of money on a certain day; after the execution of which conveyance, the mortgagor (i. e., the person who borrows the money and conveys the estate as a security) is usually allowed to retain the possession, and to act in most respects as owner of the estate, so long as he duly pays interest on the debt, and the mortgagee does not require the use of his principal. On default of payment on the day appoint. ed, the estate belongs absolutely to the mortgagee at law; but this circumstance is always neglected, it being the practice of courts of equity to compel a reconveyance on payment of the principal and interest, even after the lapse of many years from the day appointed for

payment. In courts of law, however, nothing but the strict legal rights of the parties, as manifested by their express contracts and acts, are regarded.

In the absence of any special agreement, after the execution of a legal mort gage, the mortgagor, so long as he retains possession, is tenant at sufferance of the mortgagee; but if there is a general agreement, either verbal or by writing, that he shall retain the possession, and no term is specified, he is tenant at will. (See 1 Salk., 209; 3 Scott, 271; 1 T. R., 378; 3 Man. & R., 107; 2 B. & Ad., 473.)

But the mortgage-deed often contains a stipulation that the mortgagor shall retain the possession, or that the mort gagee shall have possession, in certain events. The effect of clauses of this kind depends upon their particular terms. In Sheppard's Touchstone, p. 272, the law is thus laid down: "If a man make a feoffment in fee, or other estate, upon condition that if such a thing be or be not done at such a time, that the feoffor &c., shall re-enter; it is the common course, to the end that in this case the feoffor, &c., may have the land and continue in possession until that time, to make a covenant that he shall hold and take the profits of the land until that time; and the covenant in this case will make a good lease for that time, if the uncertainty of the time (whereunto care must be had) do not make it void. And, therefore, if A. bargain and sell his land to B., on condition to re-enter if he pay him £100, and B. doth covenant with A. that he will not take the profits until default in payment, or that A. shall take the profits until default of payment; in this case, howbeit this may be a good covenant, yet it is no good lease. And if the mortgagee covenant with the mortgagor that he will not take the profits of the land until the day of payment of the money; in this case, albeit the time be certain, yet this is no good lease, but a covenant only. If one give a bond for the quiet holding of a close for three years, it seems this is no lease in law." In the first instance given in this pas

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