Copyholds can not be grant. 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. 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. (8) As to alienations in certain manors by customary bargains and sales, see 2 B. & Ad., 585; Russ. & M., 33. By the customs of some manors, tenants were restrained from dividing and alienating their ancient tenements in portions; but these customs have been abolished by the stat. 4 & 5 Vict., c. 35, s. 92. (9) Trusts or equitable estates in copyholds may be created in the same manner as in freehold lands; but copyholds are not within the Statute of Uses. A use declared upon a surrender of copyholds is not, therefore, the same as a use limited upon a common-law conveyance, but is a mere direction to the lord to admit the particular person in dicated, which the custom obliges him to obey. (10) See 2 Cr., M. & R., 503. To prevent the recurrence of the evils which frequently resulted from the devisors of copyhold lands omitting, either from negligence or ignorance, to surrender them to the uses of their wills, it was enacted by 55 Geo. III., c. 192, that devises of copyholds which were devisable by surrender and will should be as effectual without a surrender; the proper stamp duties, fees, &c., which would have been payable upon such surrender being paid on the admission of the devisee. But this statute was repealed by the recent Statute of Wills (7a Will. IV a devisee, who will then be entitled to admission. 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,g 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.i1 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 f Co. Copyh., § 36. Old Nat. Brev., t. Briefe de Recto Clauso, F. N. B., 13. h Tit. Tenir en Franke Fee. would not have supplied the defect of & 1 Vict., c. 26), which authorizes a equal claim to his protection and boun- Equity would not assist a brother, grandchildren, or a natural child. (3 Atk., 189; 2 Ves., 582.) Lord Somers's decree in favor of a grandson was revers ed by the House of Lords. (6 Ves. Jun.. 544.)—[CHRISTIAN.] (12) See stat. 3 & 4 Will. IV., c. 74, s. 5. (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 wife 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 relieved against an heir who was not the child of the testator, or one who had an who surrenders a copyhold (which she a surrender. 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,ki and the surrenderor can in no wise 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.1 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." k2 Roll. Rep., 107. ately from her husband by the steward (14) The surrenderee would not now 1 Co. Copyh., § 39. party before trial; but as the surrenderor after the surrender is considered merely a trustee for the nominee, it should seem that the decision would have been the same even if the subsequent admittance had not been proved. (1 T. R., 600; 5 Burr., 2764; 16 East, 208.)[CHRISTIAN.] (15) See 11 East, 246. (16) See 3 Ves., 756; 1 Jac. & W., 544; 3 B. & Cr., 173. (17) By the statute 4 & 5 Vict., c. 35 And it is to be brought into court by the same persons that took the surrender, and then to be presented by the homage, and in all points material must correspond with the true tenor of the surrender itself. And, therefore, if the surrender be conditional, and the presentment be absolute, both the surrender, presentment, and admittance thereupon are wholly void ;m the surrender, as being never truly presented; the presentment, as being false; and the admittance, as being founded on such untrue presentment. If a man surrenders out of court, and dies before presentment, and presentment be made after his death, according to the custom, this is sufficient." So, too, if cestuy que use dies before presentment, yet, upon presentment made after his death, his heir according to the custom shall be admitted. The same law is, if those into whose hands the surrender is made die before presentment; for, upon sufficient proof in court that such a surrender was made, the lord shall be compelled to admit accordingly. And if the steward, the tenants, or others into whose hands such surrender is made, refuse or neglect to bring it in to be presented, upon a petition preferred to the lord in his court baron, the party grieved shall find remedy. But if the lord will not do him right and justice, [370] he may sue both the lord and them that took the surrender in Chancery, and shall there find relief." mittance. 3. Admittance is the last stage, or perfection of copyhold 3. Of the adassurances. And this is of three sorts: first, an admittance upon a voluntary grant from the lord; secondly, an admittance upon surrender by the former tenant; and, thirdly, an admittance upon a descent from the ancestor." s. 87, every surrender and deed of surrender, which the lord shall be compellable to accept or shall accept, and every will and codicil of which shall be delivered to the lord, his steward, or deputy steward, out of court, or at a court in the absence of the homage, and also every grant and admission under the act, shall forthwith be entered on the court rolls by such lord, steward, or deputy; and such entry shall be of equal effect with an entry made in pursuance of a presentment. And presentment of the surrender, will, or other matter on which an admission is founded, shall not be essential to the validity of the admission, except in cases of grants of common or waste, authorized by the custom to be made with the consent of the homage. (18) The admittance of the particular tenant is the admittance of the remainder-man, but the latter may be admitted • Co. Copyh., § 40. by himself. (1 Saund., 147, a, n. (3), (19) By the statute 4 & 5 Vict., c. Admittance upon a surrender. Admittance upon a descent. In admittances, even upon a voluntary grant from the lord, when copyhold lands have escheated or reverted to him, the lord is considered as an instrument. For though it is in his power to keep the lands in his own hands, or to dispose of them at his pleasure, by granting an absolute fee-simple, a freehold, or a chattel interest therein, and quite to change their nature from copyhold to socage tenure, so that he may be well reputed their absolute owner and lord; yet if he will still continue to dispose of them as copyhold, he is bound to observe the ancient custom precisely in every point, and can neither in tenure nor estate introduce any kind of alteration; for that were to create a new copyhold: wherefore, in this respect, the law accounts him custom's instrument. For if a copyhold for life falls into the lord's hands by the tenant's death, though the lord may destroy the tenure and enfranchise the land, yet if he grants it out again by copy, he can neither add to nor diminish the ancient rent, nor make any the minutest variation in other respects ;P nor is the tenant's estate, so granted, subject to any charges or encumbrances by the lord.q2 20 In admittances upon surrender of another, the lord is to no intent reputed as owner, but wholly as an instrument; and the tenant admitted shall likewise be subject to no charges or encumbrances of the lord; for his claim to the estate is solely under him that made the surrender.r" And, as in admittances upon surrenders, so in admittances upon descents by the death of the ancestor, the lord is used as [371] a mere instrument; and as no manner of interest passes into him by the surrender or the death of his tenant, so no interest passes out of him by the act of admittance. And, therefore, neither in the one case nor the other is any respect had to the quantity or quality of the lord's estate in the manor. For, whether he be tenant in fee or for years, whether he be in P Co. Copyh., § 41. [2 Q. B. R., 792.] even out of the manor, make any grants (20) Where a copyhold has been 9 8 Rep., 63. * 4 Rep., 27. Co. Litt., 59. party can make. (Warton v. King, Anstr., 659.)-[CHRISTIAN.] (21) See 2 Bos. & P., 346; 2 Wils., 125; 2 B. & Al., 187. But he may regrant it for a less estate than that which had escheated. (Co. Litt., 52, b.) Where a tenement had been customarily granted at a single rent, the lord could not, in the absence of a special custom, grant the tenement in heriots at apportioned rents (2 Q. B. R., 792); but the recent statute, 4 & 5 Vict., c. 35, s. 92, allows this to be done. (22) And for this purpose the title of the lord is immaterial; it is sufficient that he is lord de facto. (1 Nev. & P., 215.) |
