« PreviousContinue »
behalf of a purchasor for valuable confideration, that such recovery was duly suffered. And this may suffice to give the student a general idea of common recoveries, the last species of assurances by matter of record.
BEFORE I conclude this head, I must add a word concerne ing deeds to lead, or to declare, the uses of fines, and of recoveries. For if they be levied or suffered without any good consideration, and without any uses declared, they, like other conveyances, enure only to the use of him who levies or suffers them'. And if a consideration appears, yet as the most usual fine, “fur cognizance de droit come ceo, &c.” conveys an absolute estate, without any limitations, to the cognizee; and as common recoveries do the same to the recoveror; these assurances could not be made to answer the purpose of family settlements, (wherein a variety of uses and designations is very often expedient) unless their force and effect were subjected to the direction of other more complicated deeds, wherein particular nses can be more particularly expressed. The fine or recovery itself, like a power once gained in mechanics, may be applied and directed to give efficacy to an infinite variety of movements, in the vast and intricate machine of a voluminous family settlement. And, if these deeds are made previous to the fine or recovery, they are called deeds to lead the uses; if subsequent, deeds to declare them. As, if A tenant in tail, with reversion to himself in fee, would settle his estate on B for life, remainder to C in tail, remainder to D in fee; this is what by law he has no power of doing effectually, while his own estate-tail is in being. He therefore usually covenants to levy a fine (or, if there be any intermediate remainders, to suffer a recovery) to E, and that the same shall enure to the uses in such settlement mentioned.' This is now a deed to lead the uses of the fine or recovery; and the fine when levied, or recovery when suffered, shall enure to the uses so specified and no other. For though E, the cognizee or recoveror, hath a fee-fimple vested in himself by the fine or recovery; yet, by the operation of .
i Dyer, 18.
this deed, he becomes a mere instrument or conduit-pipe, feised only to the use of B, C, and D, in successive order : which use is executed immediately, by force of the statute of uses k. Or, if a fine or recovery be had without any previous settlement, and a deed be afterwards made between the parties, declaring the uses to which the same shall be applied, this will be equally good, as if it had been expressly levied or suffered in consequence of a deed directing it's operation to those particular uses. For by statute 4 & 5 Ann. c. 16. indentures to declare the uses of fines and recoveries, made after the fines and recoveries had and suffered, shall be good and effectual in law, and the fine and recovery shall enure to such uses, and be esteemed to be only in trust, notwithstanding the statute of frauds 29 Car. II. c. 3. enacts, that all trusts shall be declared in writing, at (and not after) the time when such trusts are created.
This doctrine may perhaps be more clearly illustrated by example. In the deed or marriage settlement in the ap: pendix, No. II. $. 2. we may suppose the lands to have been originally settled on Abraham and Cecilia Barker for life, remainder to John Barker in tail, with divers other remainders over, reversion to Cecilia Barker in fee; and now intended to be settled to the several uses therein expressed, vix, to Abraham and Cecilia Barker till the marriage ; remainder to John Barker for life; remainder to trustees to preserve the contingent remainders: remainder to his widow for life, for her jointure; remainder to other trustees, for a term of five hundred years; remainder to their first and other sons in tail; remainder to their daughters in tail ; remainder to John Barker in tail ; remainder to Ce. cilia Barker in fee. Now it is necessary, in order to bar the estate-tail of John
Barker, and the remainders expectant thereon, that a recovery be suffered of the premises : and it is thought proper (for though usual, it is by no means necessary: see Forrester, 167.) that in order to make a good tenant of the freehold, or tenant to the praecipe, during the coverture, a fine should be levied by Abraham, Cecilia, and John Barker; and that the recovery itself be suffered against this tenant to the praecipe, who shall vouch John Barker, and thereby bar his estate-tail, and become tenant of the fee-fimple by virtue of such recovery: the uses of which estate, so acquired, are to be those expressed in this deed. Accordingly the parties covenant to do these several acts : (see pag. viii.) and in consequence thereof the fine and recovery are had and suffered (No. IV. and NR. V.) of which this conveyance is a deed to lead the uses,
CHAPTER THE TWENTY SECOND
OF ALIENATION BY SPECIAL
W E are next to consider assurances by special custom,
W 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, and such cuftomary estatės, as are holden in antient 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 figniory, it is there. fore a forfeiture of a copyholda. Nor are they transferrable by matter of record, even in the king's courts, but only in the court baron of the ford. 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, fursumredditio, 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 like. The process, in most manors, is, that
b Moor. 6371
and his felled
Litt. &. 74..
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, provided that also have 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 faid 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 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 oftates we may plainly trace the visible footsteps of the feodal institutions. The fief, being of a base nature and tenure, is unalienable without the knowlege 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. 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 remedyat law, but only by sub-poena in chanceryc. 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 inforced this trust as a matter of conscience; which jurisdiction, though seemingly new in the time of Edward IV', 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 acknowlegement for the licence of alienation. Add to this the plain feodal investiture, by delivering the symbol of seifin in presence of the other tenants in open court; “ quando “ hasta vel aliud corporeum quidlibet porrigitur a domino fe in66 vestituram facere dicente; quae faltem coram duobus vafallis
folenniter fieri debet e ” and, to crown the whole, the oath of fealty 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 eftates, 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 it's fimilitude, even to our very villeins and bondmen.
This method of conveyance is so essential to the nature of a copyhold estate, that it cannot possibly be transferred by any other assurance. No feoffment, fine, or recovery (in the king's courts) has any operation thereupon. If I would exchange à 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 a copyhold, I must surrender
Feud. 1, 2, t. 2:
c Cro. Jac. 568. d Bro. Abr, tit, Tenant per copie, 10,