will he could not, previously to the passing of the Act, have disposed of such real estate by will (t). All stamp duties, fees, and sums of money which would have been payable if there had been a surrender to the use of the will in accordance with the custom of the manor, are still to be payable when the will, or an extract thereof, is entered on the court rolls, and no person is entitled to be admitted by virtue of the will of an unadmitted testator, except on payment of such fines, fees, and stamp duties as would have been paid prior to the passing of the Wills Act on the admittance of the testator, and on a surrender to the use of his will (u). Surrenders were formerly said to be made upon a tacit Presentment condition that they should be presented by the homage for not required. the instruction of the lord and the other tenants, and were made void in certain cases by a neglect of this formality. But the presentment is now unnecessary, except where a surrender has been made out of court by special custom to persons other than the lord or steward; in such cases a formal presentment is useful for bringing the matter before the lord or steward; and it is provided by the Copyhold Act, 1841 (x), that every regular surrender, deed of surrender, will, codicil, grant, and admission, entered on the court roll pursuant to the Act, shall be deemed to have been duly presented; and that it shall not be essential to the validity of any admission that a presentment shall be made by the homage of the instrument or fact in pursuance of which admission shall have been granted (y). These provisions, however, do not authorise or empower the lord of a manor who is entitled by the custom to grant, with the consent of the homage, any common or waste lands to be held as copyholds, to make such grants without the consent of the homage assembled at a court which has (t) 1 Vict. c. 26, s. 3. See Appendix, post. (u) Ibid. s. 4. (x) 4 & 5 Vict. c. 35, s. 89. E. F Voluntary conveyances. been duly summoned and held in accordance with the custom of the manor (z). A surrender made for valuable consideration cannot be revoked (a), and as between the original parties even a voluntary surrender will be binding, though this was formerly doubted (b); it has been decided, however, that copyholds are within the statute 27 Eliz. c. 4, which avoids all conveyances of any lands, tenements, or hereditaments made for the intent of defrauding and deceiving persons afterwards purchasing the same, so that purchaser for value will be preferred to any one claiming under a voluntary surrender (c). Copyholds were not within the statute 13 Eliz. c. 5, for the protection of creditors, so that a surrender or conveyance of them for an inadequate consideration could not be attacked as fraudulent (d), nor were they assets for the debts of a testator further than he charged them (e). The Act 3 & 4 Will. IV. c. 104, however, provided that where a testator died seised of copyhold estates which he had not by his last will charged with, or devised subject to, the payment of his debts, such estates should be assets for the payment of both his simple contract and specialty debts (f). Before the Act 1 & 2 Vict. c. 110, copyholds could not be taken in execution upon a judgment, because it would have been prejudicial to the lord (g); but by the last-mentioned Act all real estates, including lands and tenements of copyhold or customary tenure, of which the person against whom execution issues was seised at the time of entering up the judgment, or at any time afterwards, or over which he alone had a disposing power, may be taken in execution, but the person (z) 4 & 5 Vict. c. 35, s. 91. See 50 & 51 Vict. c. 73, s. 6. (a) Co. Copyh. s. 39; Payne v. Barker, O. Bridg. 18, 24. (b) See Pulvertoft v. Pulvertoft, 18 Ves. jun. 84, 92; Smith v. Garland, 2 Mer. 123; Co. Copyh. s. 39. (c) Doe d. Tunstill v. Bottriell, 5 B. & Ad. 131. (d) Mathews v. Feaver, 1 Cox, Ch. Cas. 278. (e) Aldrich v. Cooper, 8 Ves. jun. 382, 393. (f) Sect. 1. (g) See Cannon v. Park, 2 Eq. Cas. Abr. 226, pl. 6. to whom the land is delivered in execution is liable to the performance of the services due to the lord (h). surrender: Where a copyholder covenants or agrees to surrender, Covenant to but dies before performing his contract, a court of equity when surwill supply the want of a surrender in favour of a pur- render supplied. chaser for value or mortgagee, and will enforce the contract against the heir, widow, devisee, surviving joint-tenant, or "the life" or person taking in succession after the death of the beneficial owner of a copyhold for lives (i); and the devisee of a purchaser who dies before the conveyance under a contract can insist on the surrender being made to his use (k). But in the case of a voluntary conveyance, the defect in a surrender, or the want of a surrender, will not be supplied against the customary heir, unless he has done something to prevent the contract being fulfilled (1). Copyholds may be surrendered on condition; and this Surrender on is the usual practice when it is desired to mortgage the copyhold. The condition is generally contained in the surrender itself, and enrolled on the court rolls, but it may be contained in a separate deed. The person to whom a conditional surrender is made does not usually take admittance, but a custom to compel his admittance would be valid (m). If the condition is performed, or in the case of a mortgage if the money is repaid before the admittance of the surrenderee, the surrenderee simply acknowledges satisfaction, and authorises the steward to enter the acknowledgment on the court rolls. When this has been done, the surrenderor becomes possessed of his old estate in the copyhold, and does not require to be re-admitted. But if the surrenderee has been admitted, then it would seem that condition. Admittance. even upon a subsequent performance of the condition, or upon payment of the money, a fresh admittance would have to be taken by the original surrenderor (n). If the surrenderee has been admitted in the first instance even before forfeiture of the condition, the surrenderor may release the condition by deed (0), and similarly if the condition is broken the surrenderor may release by deed any equity of redemption which he has (p); and in neither of these cases will any fine be payable to the lord, for the surrenderee by his admission is already tenant to the lord. Admittance has been defined as the lord's acceptance of a person into the tenancy (q). Such acceptance was usually signified in former times by the surrenderee appearing at the lord's court and applying to be admitted, and by the lord or his steward delivering to him a rod or twig or other customary symbol of possession; the surrenderee might have been required to take an oath of fealty, but in practice this was usually respited. All that was really requisite, however, was that the lord should in some unequivocal way express his consent to the surrenderee becoming his tenant; thus, the lord might admit without holding a court, or he might show his consent to the new tenancy or ratify the change of tenancy by summoning the 1894 2 213.420.alienee to sit on the homage jury, or taking a fine or rent from him in respect of the tenement (r). But the mere assessment of a fine, or the acceptance of rent which might be due from him in another capacity, is not sufficient evidence of admission (s). The steward's acceptance of the presentment, entry of the surrender, or delivery of a copy to the alienee, or all these things together, would not be sufficient; though if the lord in person did these things they would in all probability be considered to amount to (n) See Gilb. Ten. 276; Fawcet v. Lowther, 2 Ves. 300. (0) Hull v. Sharbrook, Cro. Jac. 36. (p) Kite v. Queinton, 4 Rep. 25 a. (2) Watk. Copyh. i. 248. (r) Froswell v. Welche, Godb. 268. (s) Brown v. Dyer, 11 Mod. 73; Doe d. Vernon v. Vernon, 7 East, 8. an admittance. It was formerly thought that the admittance of the alienee of a person who had not been admitted might amount to an implied admission of the latter; but the matter has been decided the other way (t). admittance. When the admittance is made, the estate is held by Effect of relation to have been in the surrenderee from the date of the surrender (u). The operation of the admittance is governed by the limitation of uses in the surrender, the lord or steward having but a bare customary authority to admit according to the surrender. If, therefore, the surrender is made to the use of one person and another is admitted, the transaction will be of no effect: if the right person and another are admitted together, the admission will enure only to the benefit of the person named in the surrender where the surrender is conditional and the admittance absolute, the admittance is void; but if a conditional admittance be made on an absolute surrender, the admittance will be held good and the condition disregarded (c). Admittance does not of itself constitute a possession (y), and where two adverse parties claim title to the same copyhold both may be admitted (z). Admittance enures only according to the title in respect of which it is made, no matter in what terms it is made, and it confers no estate or title of itself (a). As the lord, in the case of admittance upon surrender, is merely an instrument, the state of the lord's title is immaterial, provided only he is lord de facto; and in this respect admittance upon surrender differs from admittance upon a voluntary grant, where the (t) Wilson v. Weddell, Yelv. 144; Doe d. Tofield v. Tofield, 11 East, 246; but see Wilson v. Allen, 1 J. & W. 611, 613. (u) Holdfast d. Woollams v. Clapham, 1 T. R. 600; Smith v. Adams, 18 Beav. 499. (x) Taverner v. Cromwell, 4 Rep. 27a; Co. Copyh. s. 41. (y) Zouch d. Forse v. Forse, 7 East, 186. (z) Rex v. Hexham Manor (Lord of), 5 A. & E. 559. (a) Right d. Wells (D. and C. of) v. Bawden, 3 East, 260; Doe d. Wheeler v. Gibbons, 7 C. & P. 161. |