he had from the testator's decease declined to act, and had never acted in the executorship or trusts of the will, was a refusal ab initio, there being nothing to impeach the bona fides of the transaction (n). Copyholds were devised to such uses as A. and B., or the survivor of them, or the executors or administrators of the survivor, or the trustees or trustee of the will for the time being, should by deed appoint; and subject thereto to the use of A. and B., their heirs and assigns, for ever; with a direction to sell and stand possessed of the proceeds upon certain trusts. After the death of the testator, A. and B. sold the copyhold estate in pursuance of the trusts. The lord of the manor required that A. and B., the devisees, should be admitted before the admission of the purchaser. On a bill filed by A. and B., the vendors, against the purchaser, to compel a specific performance of the contract, the court held that the copyhold tenant might direct the lord to admit into the tenancy either such person as A. should nominate or A. himself; that it was the exercise of the right of the tenant to nominate alternatively in favour of A. or the nominee of A., and not a double exercise of his right to nominate first in favour of A. and then in favour of the nominee of A.; and that the purchaser was bound specifically to perform the contract (o). Where a copyholder in fee surrendered to the uses of a prior settlement, which contained a power to revoke the uses therein declared, and to limit new ones, it was held that the uses limited in execution of such power were good, although they had the effect of defeating prior vested estates (p). So where a copy (n) Peppercorn v. Wayman, 5 De G. & S. 230; 21 Law J. Ch. 827. Surrenders to uses. Lord's refusal to take uses. holder in fee surrenders to such uses as A. shall appoint; and in default of and until appointment to the use of A. in fee, A., without having been admitted, appoints; the appointment is a good execution of the power, and entitles the appointee to be admitted as surrenderee of the copyholder, who continues tenant to the lord, until some one is admitted under his surrender (q). This case (r) has recently been said to have been decided, on the ground that "it appears that the lord had acted on the surrender by calling on the surrenderee to come into court and be admitted. Having, therefore, adopted the surrender (the instrument which created the power), he could not be allowed afterwards to say that the surrenderee had no authority to nominate the person who was to be the tenant, and it was on that ground the court proceeded in granting the mandamus;" which was to compel the admittance of the appointee. A surrender by a copyhold tenant to such uses as surrender to E. F. shall by any writing under his hand appoint, and in default of appointment to the use of E. F. in fee, is not such a surrender as, in the absence of any special custom of the manor to that effect, the lord is compelled to receive and enrol. A copyholder of the manor of Tunbridge, in Bottisham, Cambridge, in 1852 surrendered "to such uses and in such manner as E. F., his executors, administrators or assigns, at any time, or from time to time, during the lives of the said surrenderor and E. F., or the life of the survivor of them, or within twenty-one years of the day of the decease of the survivor, shall by any writing or writings appoint; and in default of and until such appointment to the use of the said E. F., (q) Rex v. Lord of the Manor of Oundle, 1 Ad. & E. 283. his heirs and assigns, for ever, according to the custom of the manor;" subject to a condition to be void on payment by the surrenderor, his heirs, &c., of a sum of money, with interest, according to the terms of a mortgage deed, to which reference was made. The steward and the lords of the manor refused to enrol the surrender, and the plaintiff thereupon brought the present action, which was turned into a special case for the decision of the court. Jervis, C. J., said, "the question now is whether the tenant on the rolls has the right of forcing on the lord a surrender which shall create this power of nomination? It is true that under one construction it may not have the effect of depriving the lord of having always a tenant, but it will have the effect of depriving him of his fines. I apprehend that this is an objection which the lord has a right to make. In all such cases as these one must look to what is the custom of each manor; and I think in the absence of any such custom and of any authority on the point, the tenant has no right to compel the lord to take such a surrender as this inter vivos” (s). title without A woman seised of copyholds executed a surrender, Incomplete jointly with her husband, to such uses as her husband admittance. should appoint, and in default of appointment to him in fee, but no admittance was entered under the surrender. The husband then executed a conveyance of the copyholds to a purchaser, but still no admittance was entered. The plaintiff, who claimed under the purchaser, filed a bill in equity to restrain an action of ejectment by the copyhold heir of the wife, and to compel a surrender to complete his title. It was held, that the husband of the copyholder had no power to (s) Flack v. Downing College, Cambridge, 17 Jur. 697. See an article in 17 Jurist, in which the correctness of the decision in this case is questioned, 5 Jarm. Conv. by Sweet, 510, 511. Release of right. Admittance of trustee. make perfect that title which he, as a volunteer, and without consideration, took imperfectly, and no person claiming under him could ask that his defective title should be made complete; and the bill was dismissed with costs (t). A fine is due on the admission of a tenant; and therefore if a tenant has been wrongfully admitted, and the person having a right to the copyhold release to such tenant, as he is competent to do, no new admission is requisite and no fine is payable (u). In the case of a surrender or devise of copyholds upon trusts, the trustee having the legal estate ought to be admitted, and the cestui que trust, his heir or devisee or assignee, is not liable to the payment of any fine to the lord in respect of their equitable interests (x); but of course the trustees who are admitted and pay the fine will be entitled to be reimbursed out of the trust estate. A copyhold was devised to three trustees, upon trust to permit A. to occupy the same or receive the rents and profits thereof for his life, and after the death of A. upon trust to sell and divide the proceeds amongst the children of A., and the gift of the testator's residuary estate was to the trustees upon other trusts, but charged with debts and "the costs and charges of proving and executing the will." It was held, that the fines payable on the admission of the devisees in trust to the copyhold estate were not part of the costs and charges of executing the will to be borne by the residuary estate, but that such expenses of admission were a charge upon the copyhold estate so devised (y). (t) Sowerby v. Gutteridge, 18 L. J. Chanc. 9. (y) Cole v. Jealous, 5 Hare, 51. due. A fine being only due on the admittance of a new When not tenant, it follows that where a person acquires an interest in a copyhold, as a husband in right of his wife seised of a copyhold, as he need not be admitted, so no fine is due from him (z). It is the same where there is no alteration of the tenant, as if a copyholder in fee surrenders to another for life, he may enter, in respect of his reversion, on the death of the latter, without payment of any fine (a); but it is otherwise where the surrenderor takes a new estate under his own surrender (b). It was said, however, that if a copyholder who had been admitted in fee surrendered to the use of himself for life or in tail, with remainder over, and an ultimate limitation to himself in fee, that his admission was not necessary, and consequently that no fine would be payable (c); but in another report (d) of the same case the admission of the copyholder is said to have been compelled. copyholds. 6. Of Fines in respect of Mortgages of Copyholds. Mortgages of copyholds are usually effected by a Mortgage of surrender by the mortgagor to the use of the mortgagee and his heirs, upon condition to be void on payment by the mortgagor, his heirs, &c., of principal and interest on a day appointed. The surrender ought to be presented and entered on the rolls of the manor. The condition may be contained in a separate deed of defeasance of even date with the surrender; but it is generally advisable to avoid this mode, as in the event of the loss of the defeasance difficulties may arise in proving the surrender to be conditional, which appears (z) Co. Cop. s. 56, Tr. 129; 1 Scriv. Cop. 297, 349, 4th ed. (a) Ibid. (b) Sheppard v. Woodford, 5 Mees. & W. 608; ante, p. 98. (c) Roe d. Noden v. Griffith, 4 Burr. 1952. (d) 1 Bl. R. 605. |