CHAPTER XXII. OF TITLE TO COPYHOLDS. THE general law on the subject of copyholds has already been treated in this Book. In Chapter II., we have spoken of copyhold tenure, its origin and its peculiar incidents. In Chapter V., we have spoken of the interests or estates which may be held by copy of court roll, and their general characteristics, in so far as they have any. It now remains, therefore, only to speak of the titles by which copyhold interests may be acquired and lost, including that special process known as enfranchisement, now so much encouraged by our law, by which copyhold interests are converted into socage or freehold. Any attempt to transfer a copyhold, either for an estate. of inheritance or for life, by any freehold assurance (unless where such assurance is specifically appointed by some statute), is in general attended with no other effect but to occasion a forfeiture to the lord. [Yet by the lord's licence, the copyholder may by a common law deed demise for a term of years (p), and, even without his licence, for a single year. And custom and the indulgence of the law, which favours liberty, also allow him to exercise a substantial, though indirect, right of alienation to any extent whatever, whether in fee, for life, or for years, under colour of a surrender of his interest to the lord, and an admittance or grant by the latter, de novo, to the tenant's nominee, such admittance being attended with those ceremonies of investiture, which marked in former days the original donation of a fief.] And under the express provision of particular statutes, he may (even by (p) Melwich v. Luter, (1588) 4 Rep. 26 a. a common law deed) convey the whole fee simple estate (so called) in the copyhold tenement, e.g., by deed poll under the Lands Clauses Act, 1845 (q), or by an ordinary deed under the Settled Land Act, 1882 (r). But, save as so enabled by statute, he cannot by any common law mode of assurance (other than by his will), convey the copyhold estate (s). The nature of a surrender and admittance, independently of recent legislation, was, according to the custom of most manors, as follows. [The tenant came to the steward of the manor, either in court, or (if the custom permitted) out of court, and then, by delivering up a rod, a glove, or other symbol, as the custom directed, resigned into the hands of the lord, by the hands and acceptance of his steward, or to the other person or persons authorized by the custom to receive it, all his interest in and title to the estate, in order that the same might be again granted out by the lord, to such persons and for such uses as were named in the surrender, and as the custom of the manor would warrant. And upon such surrender, the lord, by his steward, granted the same land again to the surrenderor's nominee (the surrenderee), to hold by the antient rents and customary services; and thereupon admitted the surrenderee as tenant to the copyhold, according to the form and effect of the surrender, by delivering up to him the rod, or glove, or other article, as the symbol of corporeal seisin of the lands and tenements. Upon this admission the surrenderee paid a fine to the lord, according to the custom of the manor.] 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 and the admittance. (q) 8 & 9 Vict. c. 18, s. 95. (r) 45 & 46 Vict. c. 38, s. 20. (In both these cases the deed must, however, be entered on the rolls of the manor.) (s) Dimes v. Grand Junction Canal, (1846) 9 Q. B. 469; 3 H. L. C. 794. 1. [A surrender is rather a manifestation of the alienor's intention, than a transfer of any interest in possession. For, until admittance of the surrenderee, 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. And the lord cannot take notice of the surrenderee for any purpose (t). Yet the interest remains in the surrenderor, 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.] And he is considered as a trustee for the surrenderee, who has an equitable interest capable of being devised or otherwise assigned (u); and the surrenderee has a right to call upon the lord to admit him, and in the event of his refusal may compel him to do so, by mandamus or other appropriate proceeding in the High Court of Justice (r). But no estate whatever is vested in the surrenderee as copyhold tenant, before admittance; [and if he enters without, he is, strictly speaking, a trespasser. And if, on such entry, he surrenders to the use of another, such surrender is merely void, and by no matter ex post facto can be confirmed, as if by relation (y). For, though he be afterwards admitted in pursuance of the original surrender, and thereby acquire a sufficient and plenary interest as absolute owner, yet his surrender to another 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 by the purported surrender. And no subsequent admittance can make an act good which was ab initio void.] But an unadmitted devisee may now (under the Wills Act, 1837, (1) Doe v. Tofield, (1809) 11 East, 246. (u) Dimes v. Grand Junction Canal, ubi sup. (x) R. v. Brewer's Co., (1824) 3 B. & C. 172. (y) Doe v. Tofield, ubi sup., at p. 251. ss. 3, 4) make an effectual devise, his devisee paying a double fine, together with double fees and double stamps. Surrenders were formerly said to be made upon a tacit condition that they should be presented by the homage, or general body of the freehold tenants of the manor, for the instruction of the lord and the other tenants (z). But presentment is now unnecessary, the Copyhold Act, 1894, providing (a) that a valid admittance of copyholds may be made without presentment by the homage of the surrender or other instrument or fact on which it is based. 2. [Admittance is the last stage or perfection of the copyhold assurance; and it may be either an admittance upon a surrender or devise by the former tenant, or an admittance upon a descent from the ancestor, or upon a voluntary grant from the lord. In the first two cases, the lord is a mere instrument, that is to say, no manner of interest passes into him by the surrender or devise, or by the death of the tenant, and no interest passes out of him by the act of admittance; but the claim of the tenant who is admitted is solely under him that made the surrender, or under the ancestor (b). And, therefore, neither in the one case nor in the other, is any respect had to the quality or quantity of the lord's estate in the For, whether he be tenant in fee or for years, or whether he be in possession by right or by wrong, is not material; and the admittances made by him shall not be impeached on account of his title, because they are ministerial acts, which every lord in possession is bound to perform (c). manor. Admittances, upon surrender differ, however, from admittances upon descent, in this, that, by surrender, nothing is vested in the surrenderee until admittance; but, upon descent, the heir is tenant by copy immediately (2) Elton, Copyholds (2nd ed.), p. 65. (a) Sect. 84. (b) Co Litt. 59 b. [upon the death of his ancestor. Not indeed to all intents and purposes, for he cannot be sworn on the homage, nor maintain an action in the lord's court as tenant; but to most intents the law taketh notice of him as a perfect tenant of the land, instantly upon the death of his ancestor. For example, he may, before admittance, enter into the lands, take the profits, and punish trespassers; nay, upon satisfying the lord for his fine due upon the descent, may surrender into the hands 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 of 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 charge of the fine, he will never come in and be admitted to his copyhold in court: and so the lord may be deprived of his fine. But to this we may reply, in the words of Sir E. Coke (d)—"I assure myself, if it were in the election "of the heir to be admitted, or not to be admitted, he 66 66 would be best contented without admittance; but the "custom in every manor is compulsory in this point. For "either upon pain of forfeiture of 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."] Accordingly, by the custom of most manors, if no person come in to be admitted in the place of a deceased tenant, the lord, after making due proclamatiou at three consecutive customary courts, may seize the land into his own hands, quousque, that is, until some person claims to be admitted (e). And by reason of the difficulty sometimes experienced by lords in procuring tenants to (d) Ibid. (e) Doe v. Muscott, M. & W. at p. 840. (1844) 12 S.C.-VOL. I. CC |