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performed, before the union of England and Scotland under the same sovereign and although these appear to have many qualities and incidents which do not properly and ordinarily belong to villenage tenure, either pure or privileged, (and out of one or other of these species of villenage all copyhold is derived), and also have some which savour more of military tenure by escuage uncertain, which, according to Littleton, sect. 99, is knight's service; and although they seem to want some of the characteristic qualities and circumstances which are considered as distinguishing this species of tenure, viz. the being holden at the will of the lord, and also the usual evidence of title by copy of court-roll, and are alienable also, contrary to the usual mode by which copyholds are aliened, viz. by deed and admittance thereon (if indeed they could be immemorially aliened at all by the particular species of deed stated in the case, viz. a bargain and sale, which at common law could only have transferred the use); I say, notwithstanding all these anomalous circumstances, it seems to be now so far settled in courts of law that these customary tenantright estates are not freehold, but that they in effect fall within the same consideration as copyholds, that the quality of their tenure in this respect cannot properly any longer be drawn into question." His lordship further observed, that by the deed of confirmation, the tenement had become frank fee, i. e. holden in free and common socage, and devisable by the statute of wills: that the words "freed, &c." amounted to a release of the services, &c. not excepted, and that the case bore a strong analogy to the tenure of ancient demesne; and to show that the customary qualities were extinguished by the deed, his lordship cited Griffith v. Clarke (d), which was the case of a release by a fine, after the statute of quia emptores, "de omnibus servitiis et consuetudinibus, salvis servitiis infra scriptis, viz. pro unâ virgatâ terra 2. s. rent sect. curiæ et relevio," and the release was de uno messuagio et unâ virgatâ terra; and the court held the custom of ancient demesne extinguished by the release, but that the rent, suit of court, and relief continued by the saving, as the remnant of the ancient seigniory. Lord Ellenborough also ruled, that the immediate customs of the land in question had become extinguished, and the land of course devisable, the same as any other socage land under the statute of wills, and consequently that the defendants, who were devisees, were entitled to it under the devise made to them.
In the manor of Irthington in Cumberland, and other the manors parcel of the barony of Gilsland, the estates pass by customary con
(d) Mo. 143; and also 49 Ed. 3, 7, per Belknap, C. J.; Bro. Abr. tit. "Ancient Demesne," pl. 8; ib. "Confirmation," pl.
5; 9 Co. 140; vide post, tit. "Ancient Demesne."
veyance of bargain and sale, the operative words being grant, bargain, sell, alien and surrender all, &c. the customary property of, &c. held of the lord as parcel of the manor of A., parcel of the barony of Gilsland, habendum to the alienee, his heirs and assigns for ever, at the will of the lord, according to the custom of the manor; with the licence of the lord indorsed thereon by the steward (e): and in all these manors the freehold of the customary tenements is in the lord (ƒ). Another case of peculiar interest connected with this subject is Doe d. Cook and Wife v. Danvers (g). The estate appeared, by a case reserved at the trial of ejectment for the opinion of the Court of King's Bench, to be holden of the manor of Stebunheath, otherwise Stepney, in Middlesex, by copy of court roll, (but not ad voluntatem domini,) and to pass by surrender and admittance, and to have been leased under a previous licence from the lord; and it also appeared to have been surrendered by the late owner to the uses of her will: and the
(e) The 92 sect. of the Commutation and Enfranchisement Act, 4 & 5 Vict. c. 35, recites, that by the custom of certain manors, the lords are restrained from granting licences to their tenants to alien their ancient tenements otherwise than by entireties, and enacts that it shall be lawful for any such tenant, with the licence of the lord or the steward, (which licence the lord is thereby authorized to give or to empower the steward to give by any writing under his hand, to be afterwards entered upon the rolls of the manor,) to dispose of his ancient tenement, or any part thereof, by devise, sale, exchange, or mortgage, in such parcel or parcels as he shall think proper, but subject to the payment of such portion or portions of the yearly customary lord's rent as shall be set and apportioned by the lord, or the steward, or his deputy; and that such parcel or parcels (except so far as the tenure or descent may be affected by the act) shall be held and be conveyed as the original tenement has by custom been held and conveyed; ante, pt. 1, p. 114, n. (n); and see the act in the Appendix.
(f) Doe d. Earl of Carlisle v. Towns, 2 Barn. & Adolp. 585; ante, pt. 1, p. 283. A court is held twice a year for the manors within the above barony, at which the tenants are called by the roll, and proclamations are made, in case of death or alienation, for the heirs or new tenants to appear;
and on appearance the names of such te-
(g) 7 East, 299.
court ruled, that it being so circumstanced, whether held at the will of the lord or not, the freehold was in the lord and not in the tenant; and that with respect to all the questions arising in the case, it was to be taken and considered as copyhold.
The court had entertained a doubt in the above case how far the will could be considered a will in writing under the terms of the surrender, and whether, under the 7th and 9th sections of the statute of frauds, the will must not be signed by the party, as thrown out by Lord Kenyon in Doe d. Tempest v. Dancer (1796), and according to what is reported to have been said by Lord Hardwicke in Tuffnell & Page, "that when such will was in writing, and signed by the party, that was sufficient." But they now expressed themselves satisfied that a will to direct the uses of a surrender of a copyhold, or of a customary estate passing by surrender, was not within the statute of frauds, and need not be signed, unless such signature was required by the terms of the surrender to the uses of the will; and added, that although they thought it would have been the sounder construction to have holden, that copyholds were comprised in the general words of the 5th and 6th sections of the act, "all devises and bequests of any lands or tenements;" yet it was a settled point, that the lands passed by the surrender and will taken together, as if the devisee's name was inserted in the surrender, and that they did not pass by the will (h); that the 7th section, requiring declarations or mentions of trusts of land to be in writing, signed by the party enabled to declare the trust, or by his will, and the 9th section, requiring all grants and assignments of trusts to be also in writing, signed by the party granting or assigning, or by such last will or devise, did not extend to surrenders of copyhold or customary estates, but referred only to such will as the statute recognized, viz. a will attested by three or four witnesses, a will of such lands not being a creation or declaration,—or a grant or assignment of a trust (i). And as to the question which had arisen, whether the will stated in the case was to be considered a will in writing, the court referring to 1 And. 34, 3 Leo. 79, 2 Keb. 128, Carey & Askew, 2 Bro. C. C., staff, 2 P. W. 259 a (k), also ruled,
(h) The reader's particular attention is here called to the act of 1 Vict. c. 26, "For the Amendment of the Law with respect to Wills," in the Appendix, by which the several statutes of wills, including so much of the statute of frauds as related to devises of land, were repealed, and all property was made devisable by will executed and attested as required by that act; and the power was expressly ex
and a note to Wagstaff v. Wagthat the instrument in question,
tended to "all real estate of the nature of customary freehold or tenant right, or customary or copyhold," without a surrender to will, and even before admittance, and to such lands as could not have been devised prior to that act; sect. 3; ante, pt. 1; p. 233, n. (e).
(i) Ante, pt. 1, p. 88.
(k) Ante, pt. 1, p. 233 et seq.
which was the written instructions for a will disposing of the above customary estate to the lessor of the plaintiff, and which had been pronounced as the will of the testator by the prerogative court, was a will in writing within the terms of the surrender; and judgment was therefore given for the plaintiff (1).
It is proper, however, to apprise the reader, that in the case of Bingham v. Woodgate (m), (in which the principal question was, whether the effect of a union of the fee of customary tenements with the estate for life of the lord was an absolute extinguishment of the customary interest, or only a suspension of it during the life of the lord (n),) the Master of the Rolls held, that as the custom of the manor required a bargain and sale, as well as a surrender and admittance, to pass the customary tenements which were the subject of the suit, they were plainly freehold, (or, in other words, that the freehold was in the tenant, and not in the lord.) And his Honor added, "The necessity of surrender and admittance is probably a remnant of the ancient tenure of villenage, and does not affect the freehold nature of the interest, although it prevents the customary tenement from being strictly of freehold tenure-a distinction which is well established." But, with great deference to so high an authority, the author would submit, that, as the form of the deed of conveyance was not calculated to pass a freehold interest either at common law or under the statute of uses, the above case is not distinguishable from that of Doe & Huntington; and that, consistently with the opinion expressed by the court in the last mentioned case, and in Stephenson & Hill (o), and Burrell & Dodd (p), the customary tenements in the principal case "fell within the same consideration as copyholds,” the freehold interest therefore being in the lord, and not in the tenant (9).
In concluding the observations on the qualities of customary freehold tenure, it is proper to notice that the Court of Common Pleas,
(1) Vide the act of 55 Geo. 3, c. 192, in the Appendix, and the reference to it ante, p. 1, p. 211 et seq., dispensing, in ordinary cases, with a surrender to will. And note, that in Doe d. Edmunds v. Llewellin, 2 Cr. Mee. & Ros. 503, lands held by copy of court roll according to the custom of the manor, though not at the will of the lord, were held to be within the provisions of that statute. Note also, that the act of 1 Vict. c. 26, repealed the abovementioned act of 55 Geo. 3, and re-enacted the substance of it.
(m) 1 Russ. & Myl. 32; S. C. (called
also Hudlestone v. Corbett,) 1 Taml. 183. And see 3 Russ. 112, argo. in Willan & Lancaster.
(n) Vide this case, ante, pt. 1, pp. 36,
(0) Ubi sup.
(9) Vide also 1 Sho. 287; 2 Sir W. Bl. 1116; Brown v. Rawlins, 7 East, 409; S. C. (Bourne v. Rawlins) 3 Smith, 405; Milbank & Dallaval, 19 Eliz. cited in Brown & Rawlins, 7 East, 429, 430); 10 East, 276, argo. in Curtis v. Daniel; Thomson v. Hardinge, 9 Jur. 927.
in the case of Burrell v. Dodd (r), decided that customary or tenantright estates, held of the lord by certain rents and services according to the custom of the manor, are not within the statutes of partition; and, consequently, that it was a sufficient objection to the plaintiff's obtaining judgment under a writ de partitione faciendâ, that the land, upon the face of the plea, appeared not to be freehold properly so called. And the court, in giving judgment, observed, that in some points the law regardeth such tenants no more than as mere tenants at will," for the freehold at the common law resteth not in them but in their lords, unless it be in copyholds of frank tenure, which are most usual in ancient demesne." This case may therefore be added to the several other authorities fixing the freehold interest in the lord in customary freehold lands, whether passing by surrender, or by deed of grant or bargain and sale (s).
The author has had frequent occasion in the course of the present chapter to speak of tenants in ANCIENT DEMESNE, and he purposes now to proceed to a consideration of the peculiar nature and properties of that tenure.
(r) 3 Bos. & Pul. 378.
(s) See the note to Carey v. Askew, Eden's ed. of Brown's C. C. 2d vol. p. 59; Mr. Eden there mentions that this doctrine (as he was informed) had been discussed as applying to certain customary estates within the manors of the Bishop of
Durham, but that the question had not called for judicial determination. And see further as to customary freeholds, ante, pt. 1, p. 158, tit. "Surrender;" p. 510, tit. " Pleading;" p. 527, tit. "Manda