865 ALIENATION BY SPECIAL CUSTow. [Book IL
CHAPTER XXII. OF ALIENATION BY SPECIAL CUSTOM,
WE are next to consider assurances by special custom, obtaining only in par ticular places, and relative only to a particular species of real property. #. therefore, is a very narrow title; being confined to copyhold lands, and such customary estates as are holden in ancient demesne or in manors of a similar nature; which, being of a very peculiar kind, and originally no more than ten ancies 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. Nor are they transferable by matter of record, even in the king's courts,()but only in the court baron of the lord. The method of do ing this is generally by surrender; though in some manors, by special custom, recoveries may be suffered of copyholds; (b) but these differing in nothing material from recoveries of free }. 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 ten [*866] ant comes to the steward, either in court (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 and for such uses as are named in the surrender, and the cus tom 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. And this 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, ao cording to the custom of the manor, and takes the oath of fealty. In this brief abstract of the manner of transferring copyhold estates, we may plainly trace the visible footsteps of the feudal institutions. The fief, be ing 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 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 an tiquity with the introduction of uses with respect to freehold lands; for the alienee of a copyhold had merely jus fiduciarium, for which *there [*867) was no remedy at law, but only by subpoena in chancery. (c) When, therefore, the lord had accepted a surrender of his tenant's interest, upon con (a) Litt. § 74. (b) Moor. 687. (c) Cro. Jac. 368. 542 Chap. 22.] ALIENATION of CoPYHoLDs. . 867 fidence 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 license of alienation. Add to this the plain feudal investiture, by delivering the symbol of seisin in pres ence of the other tenants in open court; “quando hasta vel aliud corporeum quidlibet porrigitur a dominose investituram facere dicente; quae saltem coram duobus vasallis solemniter fieri debet:” (e) and, to crown the whole, the oath of fealty is annexed, the very bond of feudal subjection. From all which we may fairly conclude, that had there been no other evidence of the fact in the rest of our tenures and estates, the very existence of copyholds, and the man ner in which they are transferred, would incontestibly prove the very univer sal 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 bondmen. This method of conveyance is so essential to the nature of a copyhold es tate, that it cannot properly be transferred by any other assurance. No feoff ment 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 ad mit us accordingly. If would devise a copyhold, must surrender *it I I [*368 J to the use of my last will and testament: and in my will I must de- clare my intentions, and name a devisee, who will then be entitled to admis sion. (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 re covery 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
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 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 another, 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; and if he
surrenders to the use of another, such surrender is merely void, and by no mat
terez post facto can be confirmed. For though he be admitted in pursuance of the original surrender, and thereby acquires afterwards a sufficient and plenary in terest as absolute owner, yet his second surrender previous to his own admit
tance 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, 2, Bro. Abr. tit. Tenant per 10. (e) Feud. l. t. 2. (º, ) Co. Copyh. § 36. öſi Maº. Brew. . briefe die recto clauso. F. N. B. ta.
t. tenir en franke fee. (i) See Book page 166. 843 368 *ALIENATION BY SPECIAL CUSTOM. [Book ll 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 cer tainty; 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 [*369] 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 forever
stopped from revoking or countermanding his own deliberate act. (1)
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 sub
sequent 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 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 is, death, his heir according to the custom shall be admitted. The same law 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) (1)
*3. Admittance is the last stage, or perfection, of copyhold assur [*370]
ances. And this is of three sorts: first, an admittance upon a volun ; by tary grant from the lord secondly, an admittance upon surrender
the former tenant; and, thirdly, an admittance upon a descent from the an Cestor.
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 instru
ment. 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 free
hold, or a chattel interest therein; and quite to change their nature from copy reputed their absolute owner and hold to socage tenure, so that he may well be
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 in
strument. 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. (q)
In admittance upon surrender of another, the lord is to no intent reputed
(k) 2 Roll. Rep. 107. (1) Co. Copyh. $39. (m) lbid. $40, (n) Co. Litt. & o, §º: lºº" " sher sº.
(1) The law respecting copyholds has been greatly changed by statute, but as nothing of
the sort exists in America, it is not deemed important to note the changes here. 544 Chap. 23.] ALIENATION BY DEVISE. 370
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 es tate 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 instrument; and [*871] as no manner of interest passes into him by the surrender or the death of his 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 quan tity 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 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
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 of
a perfect tenant of the land instantly upon the death of his ancestor, especially
#. he is concerned with any stranger. He may enter into the land before admittance; may take the profits; may punish any done upon the
(t) nay, upon satisfying the lord for his fine due upon the
escent, may surrender into the hands of the lord to whateverº use he pleases.
i. may conclude, of an is (2) For which reasons we that the admittance heir
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 re
ceive 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 de
frauded of his fine. But to this we may reply in *the words of Sir
[*872 | Edward Coke, (w) “I assure 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 no
tice given of their ancestor's decease.”
CHAPTER XXIII. OF ALIENATIONS BY DEVISE. is, The last method of conveying real property 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 testa
ments, which are more properly the instruments to convey personal estates;
but only into the original and antiquity of devising real estates by will,
4 Rep. 1 Rep. 4 Rep. (r) 4 Rep. 37. Co. Litt. 59. (s) 27. 140. (t) 38. (w) Co. Copyh. § 41.
(2) If the lord refuse in a proper case to admit the tenant, he may be compelled to do so
by mandamus. Reg. v. Dendy, 1 E. and B., 829; Reg. v. Wellesley, 2 id., 924. Wol. I.-69 545