A GRANT of copyholds may be defined to be "a gift of the lord to another person of a certain portion of his demesnes, to be held by copy of court roll, at the will of the lord, according to the custom of the manor, under the usual services and renders." If there be the most trivial variation from the ancient services, the heir may avoid the grant1; for as there is nothing but custom 1Co. Cop. s. 41. to warrant the grant by copy, so it ought to be strictly pursued, else it is not the estate, that was demised before 2. To support a Gilb. Ten. 198 grant by copy, the thing granted must have been demised and demisable for time whereof the memory of man is not to the contrary 3. Hence a special custom is necessary to enable the lord of a manor to demise by copy the waste portions of his demesnes, unless an act of parliament be obtained for the purpose, which has been frequently done*. In voluntary grants, which are made by the lord himself, the law neither respects Thus, by the 35 Hen. 8, c. 13, it is enacted, that "the king's manors of Granges, Collinghams, Bots, Fens and Marshes in the county of Norfolk, shall and may be granted by copy of court-roll, in fee-simple, or for term of life or lives by the stewards of the said manors, their under-stewards or deputies, for such rents, services, fines, heriots and customs, as in the said Roe v. Newman, 2 Wils. Joddrell, 2 T.R. 415. 125; Revell v. + Northwick v. Stanway, 3 B. & P. 346. 14 Co. 21 b. 2 Cro. Jac. 99. 34 Co. 30 a. 4 2 Wils. 254. the quality of his person nor the quantity of his estate; therefore an infant, non compos mentis, or even an outlaw in a personal action is capable of granting. So, on the other hand, be his estate ever so great, or ever so little, provided it be lawful, it is immaterial; and, consequently, a tenancy in fee, or a tenancy at will, is equally a sufficient warrant to the lord to grant any copyhold escheated to him for as long as the custom allows, the ancient rents and services being truly reserved. On this principle an ecclesiastical person, seised in right of his church, may grant in fee, if the custom warrant an estate in fee, and it will bind his successors; and in the case of a bishop, such grant will be good even against the king, on the vacancy of the see1. For the same reason, a person seised of a manor in right of his wife may, together with his wife, grant copyholds in fee, and such grant binds the wife and her heirs 2. So, if there be two joint-tenants of a manor, one only may grant, and it will be good against his companion. So, if the interest in the manor was a conditional or defeasible interest, if it were even wholly and ab initio defeated, it matters not, provided the interest of the granting lord was a lawful interest at the time of the grant. Where the interest is lawful it is not necessary that the lord should grant in person. It may be made by a steward having lawful authority, or even by a steward de facto, an under-steward or a deputy, except in the case of the king, when the steward must be expressly empowered by patent, or the grant will not be good3. The grant may be made as well out of court, as in it; and, if made by the lord in person, even out of the manor. The lord cannot grant to a corporation, nor to the king, nor to an alien, neither can he grant to himself, nor to his wife, without the medium of a trustee, nor to his wife and another. This last point, being then "quite new," was so determined by the Court of Common Pleas in Firebrass v. Tennant4, and was so decided with great reluctance: "As this was a provision," observed the court, " by the husband for his wife, we should be glad (if possible) to get over that maxim in the law, that a husband and wife are one person,' and therefore cannot grant lands to one another; so where there is no particular custom in a manor the common law must take place. This is an original voluntary grant by the husband to the wife, who cannot by law take immediately from him, any more than a monk, who is dead in law, and considered as no person; so here is no person to take, for the wife and husband are only one person. We are dealing with a funda mental maxim of the common law, and might as well repeal the first section of Littleton, as determine this grant, from the husband immediately to the wife, to be good, and where there is not so much as the shadow of a person intervening." By whatever means the lord obtains the copyhold interest, whether by escheat, forfeiture, descent, surrender, or otherwise, yet, as lord, he may re-grant the premises by copy, unless he change the nature of the estate by granting a common law interest in the lands; as if he make a lease for years or any other estate by deed, for then the demisable property of the premises would be gone for ever. If a copyhold in fee escheat to the lord, and he grant it to another by copy, for life, he may grant the reversion also by copy, or grant a new copy on the death of the tenant for life. If he let at will merely, the demisable property is not gone1. But if a copyhold escheat, and the lord pro tempore, who has only a particular interest in the manor, create a common-law estate, this will not prejudice the remainder-man or reversioner, who, on the determination of the particular estate, may grant again by copy. The case of the king is an exception; for if he be seised of a copyhold manor, and a copyhold tenement escheats, and the king makes. lease for years, yet after the lease the copyhold is grantable by copy, because, as it is said, the grant doth not enure to a double intent in the case of the king2. 2 Co. Litt. 58. b., n. 7. The tenant is in by the custom immediately upon the grant being made, and the estate is not subject to the mesne charges and incumbrances of the lord3; as if the lord had granted a rent- 38 Co. 63. charge or acknowledged a statute, the rent or statute would not affect the copyhold, but the tenant would be in paramount the charge, unless the manor had been actually extended on the stag tute, for then the lands would be bound; but in that case they would be no longer grantable by copy. On the grant of a copyhold by the lord of the manor, the grantee has forthwith a per- less, 4 B. & fect title, and may maintain ejectment before admittance3. 3 Doe v. Love Ald. 453. 1 Knight v. Cooke, 2 Ch. Ca. 43. 2 Doe v. Webber, 5 Scott, 189. The King v. Coggan, 6 East, 431. 3. What Estates in Copyholds may be 7. Effect of the Surrender, 183. surrendered, 177. 4. Who may surrender, 179. 8. By what Words Copyholds may be limited, 184. 1. Nature of a Surrender.]-At law copyholds pass by surrender only, and not by conveyance1," from one tenant to another; and, therefore, a transfer of copyholds by lease and release would pass the equitable estate only 2. A copyholder being, in consideration of law, merely a tenant at will, had no estate or interest which he could transfer to another. He could only relinquish his right to the premises. When, therefore, he was desirous of transferring his tenancy, he surrenders it to the lord upon confidence that he would regrant the premises to the person the surrenderor should designate. If the lord accepted the resignation, the Court of Chancery held him to be a mere trustee, and compelled him to admit the nominee to the tenancy; and it has now been long clearly established, that the lord is compellable to admit the nominee, not only by the Court of Chancery, but also by mandamus at common law 3. This operation is called a surrender, and is ordinarily done as follows:-The tenant, either in person or by attorney, yields up the seisin or possession of the premises to the lord, or his steward, or to certain tenants, as the custom is, by re-delivering or returning the symbol of seisin by which he was admitted; and, if it be not intended for the immediate benefit of the lord, designating at the same time the person who is to be instituted into the tenancy. 2. What Words essential in a Surrender.]-The surrender may be either in or out of court,-to the lord in person, to the steward, or his deputy,-or, by special custom, to the bailiff, beadle, or reeve, or to certain tenants of the manor. The word 'surrender' is affirmed by Lord Coke to be a vocabulum artis; and that, if this word be wanting, all other words used in ordinary conveyances are ineffectual and insufficient to convey any copyhold estate. It appears, however, from other authorities, Gilb. Ten. 252, 311; Sir T.Jo. Rep. 142. 2 Zinson v. Tal 131. that any words manifesting such an intention will operate as a surrender, provided it be not prejudicial to the rights of third persons1. Thus, it has been said, that when the lands are to pass for the lord's immediate benefit, "a small matter will suffice to throw them into his hands2;" but where the surrender is to be to a stranger, the law will be more strict; and if the sur- mash, 2 Show. render is to operate to the destruction of a third person's right, the law will not dispense with a particle of the form3. Thus, on a grant for lives successivè, with a custom for the first taker to destroy the whole estate by surrendering into the lord's hands, if the first taker join with the lord in levying a fine of the lands to the use of others, the fine shall not operate as a surrender so as to satisfy the custom, and defeat the limitations over to the other lives1. 3 Blemmerhasset v. Humberstone, Hutt. 65; Calth. 57. 4 Zinson v. Tal 131. 51 Roll. Ab. 502, (L.) pl. 2; Calth. 58. Calth. 58. It is said that if the copyholder renounce his copyhold, or de- mash, 2 Show. clare that he will no longer be the lord's tenant, though the words be recorded, it will be no surrender5; but it has been argued that, as a copyholder is only a tenant at will, anything amounting to a determination of the will on the part of the copyholder will be sufficient to extinguish his copyhold. The words Gilb.Ten. 301. spoken must, however, be expressive of an actual and immediate relinquishment of the premises: for if he merely say, he is " content to surrender7," or even covenant to surrender, and it be presented by the homages, this will be no surrender in law. surrender may be also by simple acceptance, as where a copyholder in fee comes into court, and accepts a new copy to himself for life, remainder to his wife for life, remainder to his son for life, this is tantamount to a surrender to himself for life, &c.; but the reversion continues in him, for had an actual surrender been made, no more would have passed than would have satisfied the uses declared, and no further surrender shall be implied than is necessary to give effect to the new uses or estates. The The King v. Hendon, 2 T. R. 484. The Lord of n. 3. What Estates in Copyholds may be surrendered.]-A remainder or a reversion is equally the subject of surrender as an estate in possession 9. If a copyholder in fee surrender for a less Co.Litt.266.b., estate, as to A. for life, he may enter on the determination of A.'s estate, as he continues in of his old seisin: but if a copyholder for life, where the custom is to grant for life, surrender to A. for life, and A. die first, no estate reverts to him for the residue of his life 10. If a copyhold be limited to A., with remainders over, 10 9 Co. 107 a. |