CHAPTER XXII.

OF ALIENATION BY SPECIAL CUSTOM (1).

WE are next to consider assurances by special custom (2), 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 copy hold lands, and such customary estates as are holden in ancient demesne or in manors of 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 (a). Nor are they transferable by matter of record, even in the king's courts, but only in the court46 baron of the lord (3). The method of doing this is generally by surrender; though in some manors, by special custom, recoveries may be suffered of copyholds (6): 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 like. The process, in most manors, is, that *the tenant comes to the steward, either in court [*366] (or if the custom permits, out of court), or else to two customary tenants of the same manor, provided there be also 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 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

(a) Litt. 74.

is made, the court always directs a reference to the Master, to inquire whether the parties have in any manner encumbered, or settled their interests in the money. (Ex parte Hodges, 6 Ves. 576. Green v. Stephens, 17 Ves. 79). It has also been determined, that the act applies only when the right is clear and indisputable; and that, where there is any question as to the right, the court is not, upon an ex parte petition, to enter into that question, in the absence of any of the parties interested. (Ez parte Sterne, 6 Ves. 157. Ex parte Rees, 3 Ves. & Bea. 11).

(b) Moor. 637.

(3) Littleton, (sect. 76), was probably our author's authority for the doctrine stated in the text. Littleton says, "tenants by copy of court roll shall neither implead nor be implead ed for their tenements by the King's writ. But, if they will implead others for their tene ments, they shall have a plaint entered in the lord's court." But, in Widdowson v. Earl of Harrington, (1 Jac. & Walk. 549), the Master of the Rolls observed, "with respect to the manner of proceeding for the recovery of copyholds, it is said by counsel, that it can be only by plaint in the lord's court; but, that is quite a mistake. There was a time when it was doubted whether you could proceed by the King's writ,-whether you could bring an ejectment for a copyhold. But all that has given way, and the King's courts are now open to ejectments for copyholds, in the same way as for freeholds. What is said by Littleton, (sect. 76), applies generally to all actions, but we know that, at this day, it is not true to that extent." And see post, p. 370. (46) See Hov n. (46) at the end of the Vol. B. II

(1) There being no copyholds in New-York, this chapter is not applicable here, nor, it is believed, in any of the states of the U. S.

(2) See in general, Com. Dig.; Bac. Ab.; Vin. Ab. Copyhold; Cru. Dig. index, Copynold; 1 Prest. on Conv. index, Copyhold; Watkins on Copyhold; and Scriven on Copyhold; 2 Saund. index, tit. Copyhold, and tit. Surrenders; and 1 Thomas Co. Lit. 653 to 676.

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 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 (4). 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 (5).

In this brief abstract of the manner of transferring copyhold estates we may plainly trace the visible footsteps of the feodal 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 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 fidu[*367] ciarium, for which *there was no remedy at law, but only by sub

pana in chancery (c). 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 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 cannot be admitted but by composition with the lord, and pay. ing him a fine by way of acknowledgment for the licence of alienation. Add to this the plain feodal investiture, by delivering the symbol of seisin in presence of the other tenants in open court; "quando hasta vel aliud corporeum quidlibet porrigitur a domino se investituram facere dicente; quas 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

(c) Cro. Jac. 568.

(d) Bro. Abr. tit. Tenant per copie, 10.

(4) If a surrenderor dies before the admittance of the surrenderee, his heir would take by descent, as the surrenderor died seised of the premises, no legal title vesting in a surrenderee till admittance. (5 East, 132. 1 Smith, 363). And where a devise was made Dy an unadmitted devisee, it was held that such second devisee, though admitted, could not recover in ejectment, for his admittance had no relation to the last legal surrender; but the legal title remained in the heir of the surrenderor, the first testator. 7 Fast, 8

(e) Feud. 1. 2, t. 2.

(5) Femes-covert and infants may be admitted by their attorney or guardian, and in default of their appearance, the lord may appoint a guardian or attorney for that purpose. If the fines are not paid, the lord may enter and receive the profits till he is satisfied, ae counting yearly for the same upon demand o the person or persons entitled to the surplus, but no forfeiture shall be incurred by infants or femes-covert for not appearing, or refusing to pay fines. 9 Geo. I. c. 29.

wvidence 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 bond

men.

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 copy hold 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 use of my last will and tes- [*368] tament (6); and in my will I must declare my intentions, and name a devisee, who will then be entitled to admission (f). A 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 (g), 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) (7).47

In order the more clearly to apprehend the nature of this peculiar assu rance, let us take a separate view of its several parts; the surrender, the presentment, and the admittance.

1. A surrender (8), by an admittance subsequent whereto the convey

(6) To prevent the recurrence of the evils which frequently resulted from the devisors of copyhold lands, omitting either from negli gence 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 copyholds 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. (12 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 copy. holds 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

(h) t. tenir en franke fee.
(i) See Book III. pag. 166*.

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. S. C. Where copyhold pre mises 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.

(7) 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 Convey. 266, 7. and see 3 T. R. 162.

(8) 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 ther

(47) See Hov. n. (47) at the end of the Vol. B II.

ance 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 surren deror 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 cannot pass away the land to any other, or make it subject to any other incumbrance 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 (9): 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 origi nal surrender, and thereby acquires afterwards a sufficient and plenary in terest as absolute owner, yet his second surrender previous to his own ad mittance is absolutely void ab initio; because at the time of such surren der 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 hath 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 [*369] chancery, or a mandamus: *and the surrenderor can in no wise

defeat his grant; his hands being for ever bound from disposing of the land in any other way, and his mouth for ever stopped from revok. ing or countermanding his own deliberate act (1) (10).

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 pre

(k) 2 Roll. Rep. 107. (1) Co. Copyh. ◊ 39.

trom. T. R. 600. 2 Saund. 422. c. n. 2. But an equity of redemption cannot be sur rendered. 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 surren. der 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 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

(9) The surrenderee would not now be conaidered a trespasser; for it has been determined that he may recover in an ejectment against the surrenderor, upon a demise laid

(m) Ibid. 40.

after the surrender, where there was an admit. tance 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.

(10) 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 copy. holder surrenders conditionally, and satis fies 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 to his own subsequent admittance. (Hargrave's note to Co. Litt. 62 a).

ented; 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; 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, he may sue both the lord, and them that took the surrender, in chancery, and shall there find relief (o).

3. Admittance (11) is the last stage, or perfection, of copyhold [370] assurances. 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 copy hold 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 feesimple, 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 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 incumbrances 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 incumbrances 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 a mere [371 | instrument; and, as no manner of interest passes into him by the

(n) Co. Litt. 62.

(0) Co. Copyh. ◊ 40. (p) Ibid. 41.

(11) The admittance of the particular tenant is the admittance of the remainder-man, Dut the latter may be admitted by himself. I Saund. 147. a. n. (3) (4). It relates when made to the time of surrender. 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 with VOL. I.

93

(9) 8 Rep. 63.

(r) 4 Rep. 27. Co. Litt. 59.

out it. 2 B. & A. 453. 2 Saund. 422. c. If the surrenderee dies before admittance, nis heir is entitled to it, and the widow to freebench. 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 shewing that the legal estate was not in the lord at the time of admittance. 5 B. & A. 626 Dowl. & R. 243.