Fine no charge on the land. Fine on admission of infant, feme covert, and lunatic. Title perfected by admission. Remedy for fine. A fine is said to be no charge on the land, and admission cannot be withheld until the fine is paid, for no fine is due until admittance, (1) and the lord has his remedy by action. The reasonableness or unreasonableness of a fine is a question for the determination of a jury. (2) Upon the admission of an infant, feme covert, or lunatic under the provisions of 1 W. 4, c. 65, (which repealed the 9 G. 1, c. 29) the fine is to be demanded by the bailiff or agent of the lord, by a note in writing, signed by the lord or his steward; and if the fine is not paid within three months after demand, the lord is empowered to enter on the copyhold, and receive the rents, and thereout satisfy himself the fine and expenses; and if the guardian, husband, or committee pay the fine, they are authorized to repay themselves out of the rents; and no forfeiture is to be incurred by any infant, feme covert, or lunatic, for not attending court, or non-payment of the fine. (3) The title of a copyholder being perfected by admission, a covenant to surrender copyhold property to a purchaser, and to do and execute all further acts and assurances for the more perfect surrendering of such property, is not broken by a refusal to pay the fine due on the purchaser's admission. (4) It may be added, that an action of debt, or indebitatus assumpsit, will lie for the recovery of a fine; Not subject to such an action, however, is not within the statute of limitations; (5) nor does the recent statute of limitation, (6) contain any provision for presuming a fine paid. But it is probable that payment would be presumed after a lapse of twenty years. (7) limitation. Payment pre sumed after twenty years. (1) 4 Co. Rep. 28 a. (2) 1 Watk. Cop. 378, [4th ed.] Scriv. Cop. 418, 420. (3) Vide ss. 6, 7, 8, 9. (4) Graham v. Sime, 1 East, 632. (5) 21 Jac. 1. c. 16. (6) 3 & 4 W. 4. c. 27. (7) 1 Watk. Cop. 383, [4th ed.] SECT. III.—Of Dispositions by Husband and Wife, When husband and wife are entitled in her right to copyhold lands, she not being tenant in-tail thereof, and the estate therein being legal and not equitable, and the objects to be effected by the 77th section of the above statute could, before the passing thereof, have been effected by her in concurrence with her husband by surrender into the hands of the lord of the manor of which the lands may be parcel, then the above statute is not to extend thereto. The means provided by the statute for enabling husband and wife entitled in her right to deal with the wife's interest in copyhold lands will be stated in a future page. (1) SECT. IV. Of a Release of Right: herein of Release of Equity of Redemption; of Release by Hus- Where 3 & 4 W. 4, c. 74, to dispositions by husband does not extend and wife. right. When the title of an admitted copyholder is imperfect, Release of the defect is frequently cured by a release from the person having the right to the copyhold tenant: (2) so the equity of equity of reof redemption of a copyholder may be released to the sur- demption. renderee on condition, who has been admitted and it seems that a power coupled with an interest may be extinguished by release. (3) Where the right or power is in a married woman, the Release by (1) Vide infra, Sect. VI. (2) 4 Co. Rep. 25 b. Co. Lit. 59 a. Co. Cop. s. 36. Gilb. Ten. 192. 10 East, 595. 1 Watk. Cop. 83, [4th ed.] married wo⚫ man. Berney, 1 Russ. & Myl. 431. By joint te nant. same may now be released or extinguished by the deed of husband and wife. (1) A joint tenant may also pass his interest to his companion either by release or surrender. (2) The law as to copyholds prior to the statute. SECT. V. As to the Disposition by Will, and the 1. Of the Disposition of Copyhold Property by As the law stood before the above statute, copyhold property might have been disposed of by a will, though not attested by any witness, nor even signed by the copyholder, the case not falling within the 5, 6, 7 or 9th sections of the 29 C. 2, c. 3, and the will having been looked upon rather as a declaration of the uses to which the surrender to the use of the will (formerly made necessary) should enure, than a proper will, the property being considered to pass by the surrender and will taken together, (as if the devisee's name had been inserted in the surrender,) and not by the will alone and any will recognised by the Ecclesiastical Court was sufficient to pass copyholds. (3) And even a parol will would have been sufficient. (4) If however any particular formality was required to attend the execution of the will, it must of course have been complied with. (5) (1) 3 & 4 W. 4, c. 74, s. 77. (2) Gilb. Ten. 289. (3) Carey v. Askew, 2 Bro. C. C. 59. 1 Jac. & Walk. 570. Noel v. Hoy, 5 Mad. 38. (4) 1 Watk. Cop. 171, [4th ed.] (5) 1 Watk. Cop. 174, [4th ed.] Doe v. Danvers, 7 East, 299. 2. Of the Law prior to the 1 Vict. c. 26, concerning Before the now repealed statute of 55 Geo. 3, c. 192, an unadmitted customary heir could not have devised before admittance, unless he had made a previous surrender to the uses of his will. That statute having supplied the want of a surrender, an unadmitted heir might have devised before admittance, since he was perfect tenant on the death of his ancestor, as against all persons except the lord. (1) void. But a surrender to will by an unadmitted surrenderee was Surrender to void, and not rendered valid by his subsequent admittance.(2) will by unadSo before the 55 Geo. 3, a surrender was necessary to the renderee was devise of a remainder or reversion. (3) Also, before the 1 Vict. c. 26, it was a settled rule both at law and in equity, that a devisee of copyholds who had not been admitted, and being the devisee of one who had the legal seisin, could not devise the equitable interest therein, though he was admitted subsequently to the date of his will: (4) it was not therefore a consequence, that every one who had an incomplete legal title, had an equitable title, though equitable interests were for the most part capable of being Equitable indealt with in equity, as legal estates were at law; so that a (1) Right v. Banks, 3 Bar. & Adol. 664, (overruling King v. Turner, 2 Sim. 548.) King v. Turner, 1 Myl. & Keen, 456. (2) Doe v. Tofield, 11 East, 246. (3) Church v. Mundy, 12 Ves. 426. (4) Wainewright v. Elwell, 1 Mad. 627. Doe v. Vernon, 7 East, 8. Unadmitted devisee could not have de vised. terests. Equitable interest in customary freeholds. Resulting trusts. General occupancy. Contingent interests when before disposable of. purchaser might have devised before admittance. (1) And so long as the tenancy remained full, the equitable interest might have been disposed of through its various devolutions. (2) A will disposing of the equitable interest in customary freeholds, not capable of being surrendered to the use of a will, must, before the recent statute, have been executed in conformity with the statute of frauds, as such an execution was necessary to pass the legal interest; and in the absence of a custom authorizing a devise of the legal interest in customary freeholds, the equitable interest therein would not have passed by an unattested codicil, where the disposition by will or codicil was required to be legally executed. (3) But the resulting trust in fee in customary freeholds was devisable before this statute, though the custom neither recognised an alienation by will, nor permitted any trusts to appear on the court rolls. (4) So, prior to this act, copyhold property was not, (as observed in a former page) the subject of general occupancy; and therefore if no special occupant was named in the grant, and the grantee had died in the lifetime of cestui que vie, the copyhold would not have gone to his executors or administrators under the provisions of 29 C. 2, c. 3, s. 12, but to the lord. Contingent and executory interests, and possibilities coupled with an interest, were before this statute capable of being disposed of by will, if the person to take was ascertainable before the happening of the contingency. (5) But a contingent interest was not devisable, if the person to take was uncertain: so that where a testator left his real estate to A. and B., or the survivor of them, and A. (1) 2 Vern. 679. Sug. V. & P. 174, [9th ed.] (2) Phillips v. Phillips, 1 Myl. & (4) Wilson v. Dent, 3 Sim. 385. Sup. p. 57. Keen, 649. Willan v. Lancaster, 3 Russ. 108. (5) Selwyn v. Selwyn, 3 Burr. 1131. Jones v. Roe, 3 Term Rep. 88. |