for life or for a greater estate, without the concurrence of such person in becoming or in creating the tenant to the præcipe or writ of entry; and this circumstance operated as a material protection of family settlements, under which the father was usually tenant for life, with remainder to his son in tail; and the concurrence of the two parties in a recovery was generally founded on an agreement to resettle the estates, so as to give the son an estate for life (subject either to a previous life estate or a rent charge in favor of his father), with remainder to his first and other sons in tail; and thus estates remained in families for many centuries. This effect, which was formerly an accidental consequence from the form of real actions, is now secured in a modified shape by provisions of which it is the express object. mainder), and, consequently, by the operation of the 33d section, to be noticed presently, to confer the office of protector on the Court of Chancery. (But see 1 Hayes's Conv., 173, contrà.) By sect. 28, where under any settle. ment there shall be more than one estate prior to an estate-tail, and one of them shall, by either of the last preceding clauses, be excluded from conferring the protectorship, then the person (if any) who, if such estate did not exist, would be protector, shall be protector. It is not easy to see how this clause would operate in the case of a limitation to A. for the life of B., in trust for B., remainder to C. in tail. The word estate, by the interpretation clause, includes equitable estates, so that here we have two estates prior to the entail; and A., being a bare trustee, can not be protector; but can it be said that B.'s estate would exist if A.'s estate were out of the way? It would, if A. were, in breach of trust, to put an end to his estate (2 P. Wms., 181); but non constat that it would, if A.'s estate had never been created. The best opinion, however, is that B. would be protector. (See 2 Sugd. Vend. & Purch., 295; 1 Hayes's Conv., 174.) By the 22d and following sections, if at the time when there shall be a tenant in tail of lands under a settlement, there shall be subsisting in the same lands or any of them, under the same settlement, any estate for years determinable on the dropping of a life or lives, or any greater estate, not being an estate for years (including, therefore, an estate- Sect. 32 authorizes any settler entailtail, and including estates merely restor- ing lands by the settlement to appoint ed or confirmed by the settlement), pri- not more than three persons in esse, not or to the estate-tail, the person who shall being aliens, to be protectors of the setbe owner of such prior estate, or the tlement in lieu of the person who would first of such prior estates, if more than otherwise have been protector, either one, then subsisting under the settle for all or any part of the time during ment, or who would have been such own which such person might have continer if no absolute disposition thereof had ued protector, and, by means of a powbeen made, shall be protector of the set- er to be inserted in such settlement, to tlement of the lands included in such perpetuate, during the whole or any part prior estate, notwithstanding any charg- of such period, the protectorship in any es upon or alienation of such prior es- person or persons in esse whom the dotate. If there be several owners of such nee of the power shall appoint in the estate under the settlement, each owner place of any protector or protectors dyis to be protector in respect of the undi- ing or by deed relinquishing the protectvided share over which the settlement orship; provided that there be no more gave him power. If a married woman be protector, she and her husband shall be protector, unless the estate was settled to her separate use. than three protectors at one time, and that every deed of appointment of a protector under a power in a settlement, or of relinquishment of protectorship, be void unless enrolled in Chancery within six months after execution. If there be no protector especially appointed, the person qualified by estate is to be protector. Sect. 26 excludes lessees at a rent from the protectorship; and sect. 27 enacts that no woman, in respect of her dower, and (except in the case hereinafter provided for of a bare trustee un- In case of the lunacy of a protector, der a settlement made on or before the the lord chancellor, or other person or 31st of December, 1833) no bare trustee, persons having like jurisdiction in lunaheir, executor, administrator, or assign, cy, shall be protector; and in case it is in respect of any estate taken by him as not known whether the protector be such bare trustee, &c., shall be the pro- living or dead, or in case the protector tector of a settlement. This clause ap- is an infant, or convict of treason or fel pears to exclude the heir of a tenant in ony, or the settler shall, in the settletail from the protectorship of a subse- ment, have declared that the person who quent estate-tail in remainder (although would be qualified by estate shall not such heir is capable of barring such re- be protector, or shall not have appoint ed a substitute, or from any other cause there shall be no protector, and yet a sufficiently qualifying estate be in existence, the Court of Chancery shall be protector. Having instituted the office of protector, the act proceeds to define its functions. By sect. 34, the consent of the protector, if there be any, is requisite to enable an actual tenant in tail to dispose of the lands to the full extent authorized by the former part of the act Without such consent, a disposition under the act by the tenant in tail shall be good only against all persons who by force of any estate-tail, which shall be vested in or might be claimed by, or which, but for some previous act or defect, would have been vested in or might have been claimed by the person making the disposition, at the time of his making the same, shall claim the lands entailed. And, by sect. 35, when an estate-tail shall have been converted into a base fee, the consent of the protector, if any, shall be requisite to enable the person who would have been tenant of the estate-tail if the same had not been barred, to exercise the power of disposition under the act. The 36th and 37th sections exclude the protector from control or responsibility, in equity or otherwise, in the exercise of his privilege. The 40th section points out the form of assurance to be adopted, enacting, "that every disposition of lands under this act by a tenant in tail thereof shall be affected by some one of the assurances (not being a will) by which such tenant in tail could have made the disposition if his estate were even an estate in fee-simple absolute." But such assurance must be by deed; and, in the case of a married woman, be made with her husband's concurrence, and be acknowledged in the manner required in another part of the act. No dispositions resting in contract merely are to have any operation under the act. By sect. 41, the disentailing assurance (unless it be a lease for twenty-one years, or less, in possession, or to take effect within a year, and at a rent of not less than five sixths of a rack-rent), is required to be enrolled in Chancery within six calendar months; and a bargain and sale enrolled within six calendar months is declared to be effectual under the act, notwithstanding the Statute of Enrollments. The consent of the protector is to be given on or before the making of the assurance, and either by the disentailing deed itself, or by a distinct deed of consent, which must be enrolled: such consent is to be irrevocable, and if made by a distinct deed, is to be considered as absolute and unqualified, unless by the deed it is confined to a particular assurance. Entails of copyholds are to be barred in the same manner as those of freeholds, except that, if the estate is legal, the assurance must be by surrender; and, if it is equitable, may be either by surrender or by a deed, to be entered on the court rolls. The consent of the protector may be given either in person to the lord or his representative taking the surrender, who is to make a memorandum to that effect, to be signed by the protector, and entered on the rolls, or by deed of even or anterior date, to be entered on the rolls. If the tenant in tail make two conflicting dispositions by deed, that which is first entered on the rolls (being a conveyance for a valuable consideration) shall have priority. After providing for the disposal of estates-tail belonging to bankrupts, the act proceeds to the subject of entailed money. When money is subject to a trust to be invested in land, equity, in pursuance of its maxim of considering that as done which ought to be done, regards the money as being already converted into land; and, where the land to be purchased was directed to be entailed, treated the money as if it were already entailed lands; but with this inconvenient result, that, as the lands were merely imaginary, no recovery could be suffered for barring the entail. Where, indeed, under the settlement, a person was entitled as tenant in tail in possession, with the immediate remainder or reversion in fee in himself, he was enti tled to receive the money; but in every other case the only means of reaching the money was to get up, with the aid of a friend, a fictitious purchase and settlement of some estate, followed by a recovery to the use of the feigned vend or. The statutes 39 & 40 Geo. III., c. 56, and 7 Geo. IV., c. 45, substituted for this process the often equally expensive course of a petition to the Court of Chancery. These acts are repealed; and now lands, subject to a trust for sale and reinvestment of the proceeds in the purchase of other lands to be entailed, and money directed to be laid out in purchasing lands to be entailed, are to be treated as being the actual lands to be entailed, and the entail is to be barred in the same manner; freeholds, leaseholds, and money, subject to such trusts, being regarded as freeholds, and copyholds as if they were the very copyholds purchased and settled. But leaseholds for years, and money, are to be treated, as to the person in whose favor the disposition is made, as personal estate; and the deed of disposition thereof, being an assignment, enrolled in Chancery within six calendar months. Having thus furnished a substitute for recoveries, the act next provides for the passing of estates and interests of married women, the principal function in modern times of fines. Sect. 77 enacts, that it shall be lawful for every married woman, in every case except that of being tenant in tail, for which the act has already provided, by deed, to dispose of lands of any tenure, and money subject to be invested in the purchase of lands, and also to dispose of, release, surrender, or extinguish any estate, which she alone, or she and her husband in her right, may have in any such lands or money, and also to release or extinguish any power over such lands or money, as effectually as if she were a feme-sole, provided that the husband (except in certain cases) concur in the deed; provided, also, that the act shall not extend to copyholds, of which a married woman, or her husband in her VOL. II.-E E right, may be seized for an estate at law, in any case where the same object could have been effected, with the husband's concurrence, by a customary surrender. But a surrender of a married woman's equitable interest in copyholds, taken with the proper examination, as if the estate had been legal, shall be effectual to pass her interest. Every deed or disposition made by a married woman under the act (except a deed of consent as protector) must be produced and acknowledged by her before a judge or a master in Chancery, or two special commissioners, to be appointed in manner directed by the act. The mode of taking such acknowledgments, and the custody of the certifi cates of acknowledgment which the act directs to be filed, &c., are placed under the direction of the chief justice of the Common Pleas. In the following session the provisions of this act were extended to Ireland by the stat. 4 & 5 Will. IV., c. 92, which, with some few variations, is a transcript of its predecessor. 433 365 CHAPTER XXII. Alienation and custom OF ALIENATION BY SPECIAL CUSTOM. We are next to consider assurances by special custom, obof copyhold taining only in particular places, and relative only to a particary estates. ular species of real property. This, therefore, is a very narrow title, being confined to copyhold lands, and such customary estates as are holden in ancient demesne, 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 seigniory, it is therefore a forfeiture of a copyhold. Nor are they transferable by matter of record, even in the king's court, 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; 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, 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 [366] like. The process, in most manors, is 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, a Litt., § 74. (1) What is here said must be understood of the legal title to copyholds; a merely equitable interest in a copyhold will pass by any writing signed by the person entitled.' (2) This is true, because real actions, which alone were conclusive as to the title, could only be brought to recover copyholds in the lord's court. But ejectment is commonly brought in the superior courts to recover the possession of copyholds. (See 1 Jac. & W., 549.) (3) Vide ante, p. 364, (n.). b Moor, 637. ard or deputy-steward, may now hold a customary court, in the absence of any customary tenants, and though there be at the time no customary tenants hold ing by copy. But proclamations at any court so holden are declared inoperative against persons absent, unless notified to them within a month. (4 & 5 Vict., c. 35, s. 86.) (5) The surrender may be taken ei ther by the lord or his steward, not only out of court, but out of the manor, for it may be convenient, and can be prejudicial to no one. (1 Salk., 184.) "A custom that the steward shall not take sur (4) The lord of a manor, or the stew- renders out of the manor is void." (Per provided there be also a custom to warrant it; and there, by delivering up a rod, a glove, or other symbol, as the custom Surrender. 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 present- Re-grant. ment 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, according 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, Admittance. or glove, or the like, in the name, and as the symbol, of corporeal seizin 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.' Surrenders are of feudal In this brief abstract of the manner of transferring copyhold estates, we may plainly trace the visible footsteps of the feodal origin. 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 favors liberty, has now given the tenant a right to name his successor; but formerly it was far otherwise. 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 reme- [367] dy at law, but only by subpana in Chancery. When, therefore, e Cro. Jac., 568. Curiam, 1 Ld. Raym., 76.) But previously to the statute 4 & 5 Vict., c. 35, he could not admit out of the manor. (Ib.) Nor even out of court. (3 Nev. & M., 225.) (6) By a surrender of a tenant in fee or copyholder, no more of his estate passes than will satisfy the uses declared. The residue will continue in him as of his old estate. (9 Co., 107, a; 1 Brownl., 181; Cro. Eliz., 442; 4 Co., 29, b; Gilb., Ten., by Watkins, 254, and n. 116.)-[CHITTY.] (7) Femes-covert and infants may be admitted by their attorney or guardian; |
