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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 copyhold estate, that it cannot properly be transferred by any other assurance. No feoffment or grant has any operation thereupon. If I would exchange a 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 *it to the *368]
use of my last will and testament;t and in my will I must declare my intentions, and name a devisee, who will then be entitled to admission.(f) Ă fine or recovery had of copyhold lands in the king's court may, indeed, if not duly reversed, alter the tenure of the lands, and convert them into frank fee,(9) which is defined in the old book of tenures(h) 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 conveyance is to Co. Copyh. & 36.
(*) 1. tenir en franke fee. () Old Nat. Brev. t. briefe de recto clauso. F. N. B. 13.
See book iii. page 166.
* 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 where, by the custom of any manor in England or Ireland, any copyhold tenant thereof may by will dispose of or appoint his copyhold tenement, the same having been surrendered to such uses as shall be by such will declared, every disposition or charge of any such copy holds, or of any right or title to the same, made by any such will by any person who shall die after passing this act,—viz., 12th July, 1815,-shall be as effectual, although no surrender is made to the use of such will, as it would have been had such surrender been made. But the claimants under the devise must pay the stamp-duties, fees, &c. incident to a surrender, as well as those upon admission. Before the passing of this act, equity would relieve in favour of a wife or younger children, (but not of a brother, grandchildren, or natural children,) or where copyholds were devised for the payment of debts. See 1 Atk. 387. 3 Bro. 229. 1 P. Wms. 60. 2 Ves. 582. 6 Ves. 544. 5 Ves. 557. But where a surrender by a married woman to the use of her will is required by the particular custom of the manor, the want of a surrender is not aided; for the 55 Geo. III. c. 192 only aids the want of a formal surrender, and the surrender in this case is matter of substance, and requires to be accompanied by the separate examination of the wife. 5 Bar. & Ald. 492. 1 Dowl. & R. 81 8. C. Where copyhold premises have been surrendered to such uses as the owner shall appoint, the appointment may be made by will, and a surrender to the uses of such will was not necessary even before this statute. 3 M. & S. 158.-Chitty.
By the Wills Act, 1 Vict. c. 26, all copyhold lands are made devisable, whether there iz or is not a custom to that effect.--KERR.
5 A fine of lands in ancient demesne levied in the court of Common Pleas is not absolutely void, but voidable by the lord ; and it seems, according to Mr. Preston, copyhold lands are within the same rule; but it is clearly more correct to levy the fine, or suffer the recovery in the lord's court. See 1 Prest. on Conv. 266, 267; and see 3 T. R. 162. CHITTY.
6 A surrender does not destroy a contingent remainder. 2 Saund. 386. It receives the same construction as deeds operating by the statute of uses ; and therefore cross-remainders cannot be implied. 1 Saund. 186, b. A surrender may be by him in remainder. 1 Saund. 147, a., n. 3. The surrenderee is an assignee within the equity of the statute Hen. VIII. 1 Saund. 241, a. His title begins from the date of the surrender, by relation; and therefore, after he has been admitted, he may lay his demise in ejectment on the day of surrender, and recover mesne profits therefrom. 1 T. R. 600. 2 Saund. 422, c., n. 2. But an equity of redemption cannot be surrendered, (2 Saund. 422, d., n. b.;) and devisees of contingent remainders on a copyhold not being in the seisin cannot make a surrender of their interest, nor will such a surrender operate against them or their heirs. 11 East, 185. A feme-covert who surrenders copyhold ought previously to be examined, separately from her husband, by the steward of the manor, or before two customary
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 qué 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 ser vices due to the lord. Yet the interest remains in him not absolutely, but sub modo; for he cannot 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 afterwards 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 act good which was ab initio void. Yet, though upon the original surrender the nominee bath but a possibility, it is however such a possibility as may whenever he pleases be reduced to a certainty ; for he cannot either by force or fraud be deprived or deluded of the effects 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:(k)* and the surrenderor can in no wise defeat his grant; his hands being forever bound from disposing
[*369 of the land in any other way, and his mouth forever stopped from revoking or countermanding his own deliberate act.(?)
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. 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, that is sufficient.(n) 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;
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, he may sue both
& 40. ii) Co. Copyh. 2 39.
(*) Co. Litt. 62. tenants by special custom; and if it be to such uses as she shall by will appoint, a paper purporting to be a will, though made by her, living her husband, is a good execution. 4 Taunt. 294.-Chitty.
* The surrenderee would not now be considered a trespasser; for it has been determined that he may recover in an ejectment against the surrenderor, upon demise laid after the surrender, where there was an admittance of such 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.-CHITTY.
& Of course it will be understood that a surrender by a copyholder to the use of his own will is always revokable; and if a copyholder surrenders conditionally, and satisfies the condition before admittance of the nominee, the copyholder may surrender again absolutely, without taking a new estate by the admittance and surrender of the nominee in the conditional surrender, and his own subsequent admittance. Hargrave's note to Co. Litt. 62, a.–CHITTY.
(*) 2 Roll. Rep. 107.
() Ibid. &
the lord, and them that took the surrender, in chancery, and shall there find relief.'
*3. Admittance is the last stage, or perfection, of copyhold assurances. *370]
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.
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 well be reputed their absolute owner and lord; yet if he will still continue to dispose of them as copyhold, he is bound to observe the antient 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 antient 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.(9)
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 *371]
the death of the ancestor, the lord *is used as a mere instrument; and,
as no manner of interest passes into him by the surrender or the death of l.is 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 possession by right or by wrong, it is not material; since the admittances made by him shall not be impeached on account of his title, because they are judicial, or rather ministerial, acts, which every lord in possession is bound to perform.(8)
Admittances, however, upon surrender, differ from admittances upon descent in this, that by surrender nothing is vested in cestuy que use before admittance, no more than in voluntary admittances; but upon descent the heir is tenant by copy immediately upon the death of his ancestor: not indeed to all intents and () Co. Copyh. 2 40.
(*) 4 Rep. 27. Co. Litt. 59. (P) Ibid. & 41.
() 4 Rep. 27. 1 Rep. 140. (9) 8 Rep. 63. But now, by the statute 4 & 5 Vict. c. 35, every surrender and deed of surrender which the lord shall be compellable to accept or shall accept, and every will and codicil a copy of which shall be delivered to the lord, his steward or deputy steward, out of court, or at à court in the absence of a homage, shall be entered in 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 admittance is founded shall not be essential to the validity of the admittance. The statute also declares the ceremony of presentment to be not essential to the validity of an admittance, and further enacts that admittance may be made at any time or place without holding any court for the purpose.—KERR.
10 The admittance of the particular tenant is the admittance of the remainderman; but the latter may be admitted by himself. 1 Saund. 147, a., n. (3) (4.) It relates when made to the time of surrender. 1 T. R. 600. 2 Saund. 422, c., n. 2. A surrenderee cannot forfeit for felony before admittance, for till then the estate is in the surrenderor. 2 Saund. 422, c., n. 2. The lord's grantee has title without it. 2 B. & A. 453. 2 Saund. 422, c. If the surrenderee dies before admittance, his heir is entitled to it, and the widow to free-bench. 2 Saund. 422, d. One effect of admittance is that a copyholder after it is estopped, in an action by the lord for a forfeiture, from showing that the legal estate was not in the lord at the time of admittance. 5 B. & A. 626. 1 Dowl. & R. 243. --Cutty.
purposes, for he cannot be sworn on the homage nor maintain an action in the ford's court as tenant; but to most intents the law taketh notice of him as of a perfect tenant of the land instantly upon the death of his ancestor, especially where he is concerned with any stranger. He may enter into the land before admittance; may take the profits; may punish any trespass done upon the ground ;(t) nay, upon satisfying the lord for his fine due upon the descent, may surrender into the bands of the lord to whatever use he pleases." For which reasons we may conclude, that the admittance of an heir is principally for the benefit of the lord, to entitle him to his fine, and not so much necessary for the strengthening and completing the heir's title. Hence indeed an observation might arise, that if the benefit, which the heir is to receive by the admittance, is not equal to the charges of the fine, he will never come in and be admitted to his copyhold in court; and so the lord may be defrauded of his fine. But to this we may reply in *the words of Sir Edward Coke:(u) “
[*372 myself, if it were in the election of the heir to be admitted or not to be admitted, he would be best contented without admittance; but the custom of every manor is in this point compulsory. For, either upon pain of forfeiture of their copyhold, or of incurring some great penalty, the heirs of copyholders are enforced, in every manor, to come into court and be admitted according to the custom, within a short time after notice given of their ancestor's decease.”'12
OF ALIENATION BY DEVISE.
The last method of conveying real property is by devise, or disposition contained in a man's last will and testament. And, in considering this subject, I shall not at present inquire into the nature of wills and testaments, which are more properly the instruments to convey personal estates; but only into the original and antiquity of devising real estates by will, and the construction of the several statutes upon which that power is now founded.
It seems sufficiently clear, that, before the conquest, lands were devisable by will.(a) But, upon the introduction of the military tenures, the restraint of devising lands naturally took place, as a branch of the feodal doctrine of nonalienation without the consent of the lord.(0) And some have questioned whether this restraint (which we may trace even from the antient Germans)) was not founded upon truer principles of policy than the power of wantonly disinheriting the heir by will, and transferring the estate, through the dotage or (9) 4 Rep. 23.
See page 57 (") Copyh. & 41.
() Tacit. de Mor. Germ. c. 21.
(a) Wright of Tenures, 172.
11 It has been held that, the heir having as complete a title without admittance as with it against all the world but the lord, the court of King's Bench will not grant a mandamus to compel the lord to admit him. 2 T. R. 197. But in a more recent case the court granted a mandamus in favour of an heir. 3 Bar. & Cres. 172. 4 Dowl. & R. 492, S. C. If the lord refuse to admit, the surrenderee cannot have an action on the case against him, but may compel him in chancery (Cro. Jac. 368) or by mandamus. 2 T. R. 484. And the lord has no right to the fine till after admittance. Ib. 1 Watk. on Cop. 1st ed. 263, 287. 1 East, R. 632. Scriv. on Cop. 405, 406. But the surrenderor may bring an action for refusal to admit. 3 Bulst. 217.-Chitty.
12 But a person claiming to be admitted as heir need not tender himself for admittance at the lord's court if he has been refused by the steward out of court. 2 M. & S. 87. A lord of the manor cannot seize a copyhold estate as forfeited pro defectu tenentis without a custom; and where he did so, even after three proclamations for the heir to come in, and granted it in fee to another, it was held an absolute seizure, not being war. ranted by custom, and could not be set up by the lord as a seizure quousque. 3 T. R. 162. CHITTY.
caprice of the ancestor, from those of his blood to utter strangers. For this, it is alleged, maintained the balance of property, and prevented one man from growing too big or powerful for his neighbours; since it rarely happens
*that the same man is heir to many others, though by art and manage
ment he may frequently become their devisee. Thus the antient law of the Athenians directed that the estate of the deceased should always descend to his children; or, on failure of lineal descendants, should go to the collateral relations: which had an admirable effect in keeping up equality and preventing the accumulation of estates. But when Solon(d) made a slight alteration, by permitting them (though only on failure of issue) to dispose of their lands by testament, and dovise away estates from the collateral heir, this soon produced an excess of wealth in some, and of poverty in others : which, by a natural progression, first produced popular tumults and dissensions; and these at length ended in tyranny and the utter extinction of liberty; which was quickly followed by a total subversion of their state and nation. On the other hand, it would now seem hard, on account of some abuses, (which are the natural consequence of free agency when coupled with human infirmity,) to debar the owner of lands from distributing them after his death as the exigence of his family affairs, or the justice due to his creditors, may perhaps require. And this power, if prudently managed, has with us a peculiar propriety, by preventing the very evil which resulted from Solon's institution, the too great accumulation of property; which is the natural consequence of our doctrine of succession by primogenitare, to which the Athenians were strangers. Of this accumulation the ill effects were severely felt even in the feodal times : but it should always be strongly discouraged in a commercial country, whose welfare depends on the number of moderate fortunes engaged in the extension of trade.
However this be, we find that, by the common law of England since the conquest, no estate, greater than for term of years, could be disposed of by testament;(e) except only in Kent, and in some antient burghs, and a few particular manors, where their Saxon immunities by special indulgence subsisted. (f) And *375]
though the feodal restraint on alienations *by deed vanished very early,
this on wills continued for some centuries after: from an apprehension of infirmity and imposition on the testator in extremis, which made such devises suspicious.(9) Besides, in devises there was wanting that general notoriety, and public designation of the successor, which in descent is apparent to the neighbourhood, and which the simplicity of the common law always required in every transfer and new acquisition of property.
But when ecclesiastical ingenuity had invented the doctrine of uses as a thing distinct from the land, uses began to be devised very frequently,(h) and the devisee of the use could in chancery compel its execution. For it is observed by Gilbert,(i) that, as the popish clergy then generally sat in the court of chancery, they considered that men are most liberal when they can enjoy their possessions no longer: and therefore at their death would choose to dispose of them to those who, according to the superstition of the times, could intercede for their happiness in another world. But, when the statute of uses(;) had annexed the possession to the use, these uses, being now the very land itself, became no longer devisable ;' which might have occasioned a great revolution in the law of devises, had not the statute of wills been made about five years after, viz., 32 Hen. VIII. c. 1, explained by 34 Hen. VIII. c. 5, which enacted,
(4) Plutarch. in vita Solon,
2 Inst. 7.
Litt. & 167. 1 Inst. 111. i Glanv. l. 7, c. 1.
(*) Plowd. 414.
This is not quite correct. By means of a limitation to such uses as the owner should by his will appoint, the land might have been, and frequently is, devised, notwithstand. ing, or rather by the aid of, the statute of uses, and independently of any statute of wills, in the same manner as copyholds were made devisable by means of a surrender SWEET.