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CHAPTER XXII.

OF ALIENATION BY SPECIAL CUSTOM.

Alienation We are next to consider assurances by special custom, oband custom. 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 ;bo 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, Litt., \ 74.

b Moor, 637.

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(1) What is here said must be under. ard or deputy-steward, may now hold a stood of the legal title to copyholds; a customary court, in the absence of any merely equitable interest in a copyhold customary tenants, and though there be will pass by any writing signed by the at the time no customary tenants hold

person entitled.

ing by copy. But proclamations at any

court so holden are declared inoperative (2) This is true, because real actions, against persons absent, unless notified to which alone were conclusive as to the them within a month. (4 & 5 Vict., c. title, could only be brought to recover 35, s. 86.) copyholds in the lord's court. But ejectment is commonly brought in the supe- (5) The surrender may be taken ei rior courts to recover the possession of ther by the lord or his steward, not only copyholds. (See 1 Jac. & W., 549.) out of court, but out of the manor, for it

may be convenient, and can be prejudi(3) Vide ante, p. 364, (n.).

cial to no one. (1 Salk., 184.)

tom that the steward shall not take sur(4) The lord of a manor, or the stew. renders out of the manor is void.” (Per

* A cus

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.”

In this brief abstract of the manner of transferring copyhold Surrenders 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 subpæna in Chancery. When, therefore,

e Cro. Jac., 568.

Curiam, 1 Ld. Raym., 76.) But previ- admitted by their attorney or guurdian; ously to the statute 4 & 5 Vict., c. 35, and in default of their appearance, the he could not admit out of the manor. lord may appoint a guardian or attorney (Ib.) Nor even out of court. (3 Nev. for that purpose. If the fines are not & M., 225.)

paid, the lord may enter and receive

the profits till he is satisfied, accounting (6) By a surrender of a tenant in fee yearly for the same upon demand of the or copyholder, no more of his estate person or persons entitled to the surplus, passes than will satisfy the uses declar- but no forfeiture shall be incurred by ed. The residue will continue in him infants or femes-covert for not appearas of his old estate. (9 Co., 107, a; 1 ing, or refusing to pay fines. (9 Geo. Brownl., 181; Cro. Eliz., 442; 4 Co., I., c. 29.) See further, as to the admit29, b; Gilb., Ten., by Watkins, 254, and tance of married women, infants, and a. 116.)-[Chitty.]

lunatics, 11 Geo. IV. & 1 Will. IV., C.

65. (7) Femes-covert and infants may be

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 afterward 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 can not be admitted but by composition with the lord, and paying him a fine by way of acknowledgment for the license of alienation. Add to this the plain feodal investiture, by delivering the symbol of seizin in presence of the other tenants in open court; " quando hasta vel aliud corporeum quidlibet porrigitur a domino se investituram facere dicente ; quæ saltem coram duobus vasallis solemniter fieri debet ;"e and, to crown the whole, the oath of fealty 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. Copyholds This method of conveyance is so essential to the nature of a conveyed by copyhold estate, that it can not properly be transferred by any feoffinent or other assurance. No feoffment or grant has any operation

thereupon. If I would exchange a copyhold estate with another, I can not 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 and testament;and in my will I must declare my intentions, and name d Bro. Abr., tit. Tenant per Copie, 10.

e Feud., 1. 2, t. 2.

can not be

grant.

(8) As to alienations in certain man- dicated, which the custom obliges him ors by customary bargains and sales, see to obey. 2 B. & Ad., 585; 1 Russ. & M., 33. By the customs of some manors, tenants were (10) See 2 Cr., M. & R., 503. To restrained from dividing and alienating prevent the recurrence of the evils which their ancient tenements in portions; but frequently resulted from the devisors of these customs have been abolished by copyhold lands omitting, either from the stat. 4 & 5 Vict., c. 35, s. 92. negligence or ignorance, to surrender

them to the uses of their wills, it was (9) Trusts or equitable estates in copy- enacted by 55 Geo. III., c. 192, that holds may be created in the same man- devises of copyholds which were devisner as in freehold lands; but copyholds able by surrender and will should be as are not within the Statute of Uses. A effectual without a surrender; the propuse declared upon a surrender of copy- er stamp duties, fees, &c., which would holds is not, therefore, the same as a have been payable upon such surrender use limited upon a common-law con- being paid on the admission of the devi. veyance, but is a mere direction to the see. But this statute was repealed by lord to admit the particular person in- the recent Statute of Wills (7 Will. IV

a devisee, who will then be entitled to admission.fi A fine or [368] recovery had of copyhold lands in the king's court may, indeed, if not duly reversed, alter the tenure of the lands, ana convert them into frank fee,& which is defined in the old book of tenuresh 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'.

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 1. Nature of

& surrender. i Co. Copyh., \ 36.

h Tit. Tenir en Franke Fee. & Old Nat. Brev., t. Briefe de Recto i See vol. iii., page 166*. Clauso, F. N. B., 13.

& 1 Vict., c. 26), which authorizes a equal claim to his protection and boun-
testator to dispose of his customary and ty as his wife, though such heir was un-
copyhold estates, notwithstanding he provided for; for the wife will be pre-
has not surrendered, or, whether claim- ferred, where there is not an equal mor-
ing as heir, devisee, or surrenderee, has al obligation violated by giving her re-
not been admitted ; and notwithstand- lief. (3 Bro. 229.) If both freehold
ing the want of a custom to devise by and copyhold estates were devised for
surrender to the use of a will or other- the payment of debts, the chancellor
wise. The act makes provision for the would not have supplied the defect of
satisfaction of the proper fines, fees, and the surrender of the copyhold, unless
stamp duties. But where a surrender the freehold was insufficient. (1 Bro.,
by a married woman to the use of her 273 ; 2 Bro., 325.)
will was required by the particular cus- Equity would not assist a brother,
tom of the manor, the want of a sur- grandchildren, or a natural child. (3
render was not aided; for the 55 Geo. Atk., 189; 2 Ves., 582.) Lord Somers's
III., c. 192, only aids the want of a form- decree in favor of a grandson was revers
al surrender, and the surrender in this ed by the House of Lords. (6 Ves. Jun..
case is matter of substance, and must be 544.)-[Christian.]
accompanied by the separate examina-
tion of the wife. (5 Barn. & Ald., 492.) (12) See stat. 3 & 4 Will. IV., c. 74,
And the recent Statute of Wills gives no 8. 5.
new powers of devising to a married
woman. (Sect. 8.)

(13) A surrender does not destroy a

contingent remainder. (2 Saund., 386; (11) Unless a surrender was made by see 11 East, 185.) It receives the same the testator some time before his death construction as a deed operating by the to the use of his last will and testament, Statute of Uses, and therefore cross rethe devise of a copyhold was in general mainders can not be implied. (1 Saund., absolutely void, and the estate descend- 186, b.). A surrender may be by him ed to the heir at law; but in three in- in remainder. (1 Saund., 147, a, n. 3.) stances a court of equity would have in. The surrenderee is an assignee within terfered and supplied the defect of a sur- the equity of the statute Hen. VIII. (1 render, viz., when copyholds were de- Saund., 241, a.) His title begins from vised for the payment of debts, and in the date of the surrender, by relation; favor of a wise or younger children. Yet and, therefore, after he has been admita wife or younger children would not ted, he may lay his demise in ejectment have been relieved in equity, if the heir on the day of surrender, and recover was disinherited or unprovided for. (1 mesne profits therefrom. (1 T. R., 600; Atk., 387; 3 Bro., 229; 1 Cox's P. Wms., 2 Saund., 422, c, n. 2.) A feme-covert, 60.) But a wife could have been re- who surrenders a copyhold (which she lieved against an heir who was not the can only do with her husband's consent), child of the testator, or one who had an ought previously to be examined separ

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 can not pass away the land to any other, or make it subject to any other encumbrance 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 ;-* and if he surrenders to the use of another, such surrender is merely void, and by no matter ex post facto can be confirmed." For, though he be admitted in pursuance of the original surrender, and thereby acquires afterward a sufficient and plenary interest as absolute owner, yet his second surrender previous to his own admittance is absolutely void ab initio ; because, at the time of such surrender, he had but a possibility of an interest, and could therefore

transfer nothing; and no subsequent admittance can make an ( 369 ) act good which was ab initio void. Yet, though upon the

original surrender the nominee hath but a possibility, it is, however, such a possibility as may, whenever he pleases, be reduced to a certainty ; for he can not, either by force or fraud, be deprived or deluded of the effect and fruits of the surrender; but, if the lord refuse to admit him, he is compellable to do it by a bill in Chancery, or a mandamus,kand the surrenderor can in nowise defeat his grant; his hands being forever bound from disposing of the land in any other way, and his mouth forever stopped from revoking or countermanding his own deliberate act.

2. Of the presentment.

2. As to the presentment; that, by the general custom of manors, is to be made at the next court baron immediately after the surrender ; but by special custom in some places it will be good, though made at the second or other subsequent court." k 2 Roll. Rep., 107.

1 Co. Copyh., $ 39. ately from her husband by the steward party before trial; but as the surrenderof the manor, or before two customary or after the surrender is considered meretenants by special custom; and if it be ly a trustee for the nominee, it should to such uses as she shall by will appoint, seem that the decision would have been her will, though made by her, living her the same even if the subsequent admithusband, is a good execution. (4 Taunt., tance had not been proved. (1 T. R., 294; see 11 Moore, 243 ; 3 Ad. & El., 600; 5 Burr., 2764; 16 East, 208.)265.)—[Chitty.]

[CHRISTIAN.] (14) The surrenderee would not now (15) See 11 East, 246. be considered a trespasser; for it has been determined that he may recover (16) See 3 Ves., 756 ; 1 Jac. & W., in an ejectment against the surrenderor, 544; 3 B. & Cr., 173. upon a demise laid after the surrender, where there was an admittance of such (17) By the statute 4 & 5 Vict., c. 35

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