ment: but a statute merely declaratory of the common law, whether its form be negative or affirmative, will not affect the continuance of a local custom. "A statute made in the affirmative, without any negative expressed or implied, does not take away the common law" or affect the existence of a custom (). (y) Co. Litt. 115 a, n. 8, 9 (Harg.); 2 Inst. 200. CHAPTER II. NATURE OF ESTATES IN COPYHOLDS. as to estates in copyholds. BEFORE describing the modes of conveyance which are General rules appropriate to copyholds, it is proposed to treat in this chapter of the different kinds of estate which may subsist in copyhold tenements (a). The customary estates of copyholders are in general subject to the same rules as those which relate to freeholds in respect of estates in contingency and expectancy, estates held in undivided shares, and equitable estates. But there are in many places special customs as to reversionary estates in copyholds for lives, which will be noticed later. And as to contingent Contingent estates, it should be observed, that inasmuch as the freehold is in the lord and not in the copyholder, a contingent remainder in copyholds was not destroyed (even before the Act 8 & 9 Vict. c. 106) by the forfeiture, surrender, or merger of the particular estate (b). estates. estates. As to undivided estates, it should be recollected that Undivided joint-tenants hold in a kind of partnership with benefit of survivorship, having a joint title to the whole of the land in one right; tenants in common have each a portion of the land, several though undivided, and claim by separate titles or in separate rights; coparceners, on the other hand, claim always by one title of descent, and are of an intermediate nature between joint-tenants and tenants in common, having one title but no benefit of survivor (a) For an analysis of the estates of different kinds which may exist both in freehold and copyhold tene ments, see Co. Copyh. s. 47. (b) Lovell v. Lovell, 3 Atk. 11, 12; Pickersgill v. Grey, 30 Beav. 352. Equitable estates. Trusts. ship; it follows, that joint-tenants can release after admittance but cannot convey directly to each other, and that tenants in common cannot release, while coparceners may adopt either method (c). Equitable estates in copyholds "possess in general all those incidents of the customary property which directly concern the tenant, but not those which are established merely for the benefit of the lord: it being sufficient for the latter to have the person named in the roll for his tenant, without troubling himself to know that he is a trustee" (d). The equitable interest may be modified or subdivided in any way, so long as the custom governing the legal estate is not thereby infringed. But these limits must be observed: as where, for example, the custom of the manor does not permit entails of the legal estate, a limitation of the trust to a man and the heirs of his body will pass a fee conditional and not an equitable estatetail (e). Copyholds are within the provisions of the Statute of Frauds "that all declarations or creations of trusts or confidences of any lands, tenements, or hereditaments, shall be manifested and proved by some writing signed by the party who is by law enabled to declare such trust, or by his last will in writing, or else they shall be utterly void and of none effect (ƒ). But, as in the case of freeholds, there are many constructive trusts of copyhold lands which are not governed by the rule thereby enacted. Such are resulting trusts, terms attendant on the inheritance by implication, and the equities arising from a vendor's lien, a trustee's renewal in his own name, a defective execution of power, the doctrine of election, equitable mortgage, and other equities arising by con (c) Co. Litt. 188 b; Bence v. Gilpin, L. R. 3 Ex. 76. (d) Burt. Comp. s. 1395. (e) Pullen v. Middleton (Lord), 9 Mod. 483. (f) 29 Car. II. c. 3, ss. 7, 8; Withers v. Withers, Amb. 151. struction and implication. Of these constructive trusts it is not necessary here to give a detailed account. trusts. But the doctrine of resulting trusts is of such import- Resulting ance in some copyhold cases, especially those concerned with copyholds for lives, that it will probably be useful to notice it at greater length. When a copyhold is surrendered to uses which do not exhaust the estate, and there is no evidence of intention to benefit the trustee, a resulting trust will arise in favour of the surrenderor, unless there should be evidence that no such trust was intended, as where the residue of estate is intended to be given up to the lord, or unless by the custom of the manor a surrender without a proper limitation of the uses is construed to give a particular kind of estate. When a copyhold is purchased in the name of one person with the money of another there arises a presumption of the existence of a resulting trust, which can only be upset by showing that an advancement in life was intended for the nominal purchaser, who, being a child or in the place of a child, or wife, or blood-relation of the person who paid the money, is nominated by him to have the legal estate. If the nominated purchaser stands in one of these relations with the person who finds the money, an advancement will be presumed to have been intended, unless there is evidence of facts contemporaneous with, or practically forming part of, the transaction in question, to show that the nominated purchaser was to hold as a trustee. Upon the same principle, when the purchase-money is advanced by two persons unequally, a conveyance to the use of them and their heirs will be held to create a tenancy in common in shares proportionate to the money respectively advanced, and not a joint-tenancy (g). There may be terms of years in copyholds (h) distinct Terms in from legal terms, and these may be made to attend the copyholds. 92. (g) Dyer v. Dyer, 2 Cox, Ch. Ca. (h) See Bath (Earl of) v. Abney, 1 Burr. 206; Everingham v. Ivatt, Uses. Maximum of estate. customary inheritance, either by a declaration of trust to that effect, or by implication, when the same person has the inheritance and the title to the term of years, but the one as a legal and the other as an equitable estate, or when both the interests so vested in one person are equitable estate. These attendant terms are not often found in copyhold titles; and copyholds not being within the provisions of the Satisfied Terms Act, 8 & 9 Vict. c. 112 (i), in such cases it may be necessary to trace the title of such terms during the whole period of their existence (k). The legal as well as the equitable estate in a copyhold tenement may be limited in ways that were only allowed in the case of freeholds when a conveyance takes effect under the Statute of Uses, although the statute itself does not apply to copyholds, a copyholder being entitled to surrender directly to the use of his wife, or of himself and another. Powers of appointment and springing and shifting uses may be created in the declarations of uses upon copyhold surrenders, as well as in conveyances of freehold estates, so that the estate conveyed may be modified from time to time in any manner, a remainder may be limited after a fee simple, or a fee simple may be made to arise in futuro (1). The custom of each manor will determine the maximum degree of property which the copyholders may have in their customary tenements. In most places they have customary estates in fee simple; but in some manors the highest estate known is a customary kind of entail, and elsewhere the copyholds are all held upon lives or for terms of years. It may happen that in the same manor one set of tenements is grantable in fee, and others for lives only, or for years and for no greater estate; and these differences of usage apply as well to customary freeholds as to copyholds in the limited sense of the word. When copy (i) Sect. 3. (k) Dav. Conc. Prec. in Conv. 26. (1) Boddington v. Abernethy, 5 B. & C. 776; Rex v. Oundle Manor (Lord of), 1 A. & E. 283. |