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CHAPTER THE TWENTY-SECOND.

OF ALIENATION BY SPECIAL CUSTOM.

WE are next to consider assurances by special custom,

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 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 tenancies in pure or privileged villenage, were never alienable by deed; for, as that might tend to defeat the lord of his signiory, it is therefore a forfeiture of a copyholda, Nor are they transferrable by matter of record, even in the king's courts, but only in the court baron of the lord. The method of doing this is generally by surrender; though in some manors, by special custom, recoveries may be suffered of copyholdsb: 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 my. self 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

a Litt. sec. 74.

b Moor. 637.

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 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. 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.

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 favors 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 copy hold had merely jus fiduciarium, for which

there was no remedy at law, but only by sub-poena 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, 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 paying him a fine by way of acknowledgment for the license 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 investi"turam facere dicente; quae saltem coram duobus vasallis "solemniter fieri debete: 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 evidence 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 bondmen.

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 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 admit us accordingly. If I would devise a copyhold, I must surrender it to the use of my last will and d Bro. Abr. tit. Tenant per copie. 10.

e Cro. Jac. 568,

e Feud. 1. 2. t. 2.

testament; and in my will I must declare my intentions, and name a devisee, who will then be entitled to admissionf(1). 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 fees, which is defined in the old book of tenuresh 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 copyholdi.

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,

f Co. Copyh. sec. 36.

g Old Nat. Brev. t. briefe de recto clause. F. N. B. 13.

ht, tenir en franke fee.

i See Vol. III. p. 166.*

(1) Unless a surrender is made by the testator some time before his death to the use of his last will and testament, the devise of a copy. hold is in general absolutely void, and the estate descends to the heir at law: but in three instances a court of equity will interfere and will supply the defect of a surrender, viz. when copyholds are devised for the payment of debts, and in favor of a wife or younger children. Yet a wife or younger children will not be relieved in equity, if the heir is disinherited or unprovided for. 1 Atk. 387. 3 Bro. 229. 1 Cox's P. Wms. 60. But a wife will be relieved against an heir, who is not the child of the testator, or one who has an equal claim to his protection and bounty as his wife, though such heir be unprovided for, for the wife will be preferred, where there is not an equal moral obligation violated by giving her relief. 3 Bro. 229. If both freehold and copyhold estates are devised for the payment of debts, the chancellor will not supply the defect of the surrender of the copyhold, unless the freehold is insufficient. 1 Bro. 273. 2 Bro. 325.

Equity will not assist a brother, grand-children, or a natural child. 3 Atk. 189. 2 Ves. 582.

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 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 (2): 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 original surrender, and thereby acquires afterwards a sufficient and plenary interest as absolute owner, yet his second surrender 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 and no subsequent admittance can make an

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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 effect 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: and the surrenderor can in nowise defeat his grant; his hands being for ever bound from

k 2 Roll, Rep. 107.

(2) The surrenderee would not now be considered a trespasser; for it has been determined that he may recover in an ejectment against the surrenderor, upon a demise laid after the surrender, where there was an admittance of the nominee 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.