CHAP. IV.
SEC. I.

appointment should not be exercised, the surrender, (which has, in many respects, the operation of a fine) would extinguish the power, and vest a good title in the purchaser.

Incumbrances. If there be mortgagees, legatees, annuitants or other incumbrancers, who are paid off out of the purchasemoney, they ought to join in the surrender, as evidence that they have been paid off, and, for the same reason, the executor of a mortgagee of copyhold lands, ought on all occasions, when the money is paid off, to join in the surrender with the heir. As the legal estate of copyhold lands vested in a trustee, or mortgagee, cannot be devised, it generally vests in the heir; but, if there be any particular inconvenience, which would result from suffering it thus to descend, a mortgagee may surrender to trustees, in trust, on payment of mortgage money and interest, to convey to the owner, and such trustees may surrender to new ones.

Copyholds

within 6 Geo.

4.

Right in copyholds may be released.

The equitable
estate in copy-
holds
may be

released.

Copyholds are within the statute of the 6 Geo. 4, c. 74, and, therefore, an infant trustee, in whom such property is vested, will, on application to a court of equity, be ordered to convey.

A right in copyhold lands may be released, particularly an equitable one. Thus, if lands be surrendered to trustees, in trust to be sold, and the money to be divided among several persons; after the trustees have surrendered, the persons entitled to the money may "remise, release and for ever quit claim, all their estate “right, title, &c.," to the purchaser or his trustees.

If lands are surrendered to trustees, in trust for a person, and the trustees surrender the legal estate by the direction of their cestui que trust, the latter may release his right and title to the surrenderee.

In some

In some manors the copyholder surrenders in court, in others before the steward out of court, in others into the hands of two copyholders of the manor, who present the surrender at the following court. manors the copyholder may surrender by power of attorney, in others the steward can grant a deputation to some person to take a surrender in his place. In most manors, the surrender, in whatever mode it is taken, is presented to, and found by, the homage or jury, and an admittance, which is a separate instrument which recites that fact, is made out by the steward thereupon.

CHAP. IV.

SEC. I.

In the county of Durham the copyholder has an Custom of estate of inheritance (not at the will of the lord, but) County of Duraccording to the custom of the manor, and the surren- ham. der and admittance are contained in the same instrument; and, to enable a copyholder to dispose of his estate by will, it is necessary that the legal estate should be vested, not in himself, but in some other person, in trust for him, and he cannot surrender into the hands of the lord " to such uses as he shall declare by will" as is the custom in some manors.

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not be extended, &c.

Copyholds are not liable to be extended, are not sub- Copyholds canject to debts of any kind, and, not being within the Statute of Fraud, they pass, by a will, unattested. In some manors they cannot be entailed, in others limitations in tail are allowed, and may be barred by surrender by a recovery in the lord's court, or by the copyholder making a feoffment so as to commit a voluntary forfeiture, on which the lord seizes the land and regrants it to him in fee. Such of these modes of barring the entail as are authorized by the court, (or if two of

CHAP. IV.
SEC. I.

them be concurrent, then that which is most ancient) should be adopted.

In deeds of covenant to surrender copyhold land, it is usual to insert the same recitals as would have been necessary if the premises were freehold. If there be any annuity or legacies which continue a charge upon and are to be raised out of the purchased premises, or any long trusts are necessary, the lands may, by a memorandum (or defeazance as it is usually, though improperly, called) at the end of the surrender, be declared to be surrendered to, and vested in the trus66 tees, upon such trusts as are declared by a deed of "equal date," but this is not a good plan, because, if the deed should be lost, an insuperable objection to the title may arise; it would, therefore, be a better mode, where the trusts are long, to declare the most important of them in the memorandum, as, for instance, the trust for sale, and refer to the deed for the others, as for instance, the application of the money.

It is not an uncommon practice for copyholders, when they mortgage their land, for the purpose of keeping the transaction secret, to surrender to the mortgagee or to trustees for him [the mortgagee] upon the trusts of a deed of equal date, which contains a proviso for redemption, and trusts to raise the money by mortgage or sale. This practice cannot be recommended as good either for the mortgagor or mortgagee, since the loss of the deed may endanger the money of the one, or the estate of the other.

CHAP. IV.

SEC. II.

SECTION II.

Of the deed of covenants on the mortgage of copyholds.

of the mortgage

Copyhold lands may be surrendered by way of mort- General plan gage, subject to the usual proviso for redemption, which of copyholds. may be contained in the surrender, or in a memorandum or defeazance under it, according to the custom of the manor; but as there cannot be, in the surrender, covenants for the payment of the money and for title, it is usual to have a deed of covenants accompanying the surrender, which may be either precedent or subsequent to it, as has been already mentioned. Such deed, after a covenant to surrender, if precedent, and a recital of the surrender, if subsequent, must contain a covenant for payment of the money and the other usual covenants entered into by mortgagors for the title. Both on the purchase and mortgage of copyhold lands, there is a variation from the covenants applicable to freehold lands, for no copyholder can be said to be seised "of an estate in fee simple in possession," but only "of an estate of in"heritance, according to the custom of the manor;" and if the legal estate be vested in the lord, as is the case in pure copyholds, the tenant on the roll cannot be said to be seised of an estate at all, but only "entitled according to the custom of the manor."

After the covenant, that he is seised or entitled, as the Covenants case may be, follow the usual covenants, that he has mortgage ofpyholds. power to surrender, for peaceable possession, and free from incumbrances; but there is a distinction in this last covenant from the corresponding one of freeholds,

K

CHAP. IV.

SEC. II.

Term cannot
be created of
copyholds.

the words "jointures, dowers, uses, statutes, recognizances, judgments, extents, and actions," being omitted in deeds of covenant applicable to such copyholds as are not susceptible of limitations to uses, and not subject to dower; in many cases, the widow has an estate of free-bench by custom, but no copyhold lands are liable to be affected by "statutes,

66

recognizances, judgments, extents or executions," or, in other words, no copyholds are liable to be extended under an elegit, or any statute merchant or staple.

As certain copyholds may be limited to uses, and may be subject to dower, those words (as well, indeed, as any of the others above enumerated which are not inapplicable) should be retained.

A term of years cannot be created of copyhold lands, unless warranted by the custom of the manor ; the whole interest, therefore, of the copyholder must, on mortgage, be transferred to the mortgagee, or to trustees for him, and the money must be secured, either under the common proviso for redemption, or by a trust to the mortgagee to sell. In either case, deeds to charge further sums lent, must be prepared in the same manner as if the property were freehold.

Where economy is an object, the deed of covenants may be dispensed with, and a bond may be taken for the payment of the mortgage-money and interest, in which case it should be stated to be the same sum secured by the surrender.

In some respects, copyholds are a better security for money lent, than freeholds, because the surrender being entered on the roll, is notice of the mortgage to all persons.

For reasons, already stated, it is improper, on a mort