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such deed of customary conveyance, and by surrender and admittance, as aforesaid, precisely in the same manner in every respect as upon an ordinary alienation inter vivos; and then for the conveyance, by a separate deed made out of Court without the license or privity of the lord, his steward or deputy steward, and called a deed of declaration of trust, to declare the trusts of the equitable estate; and which trusts have usually been for the alienor during his life, and, after his death, to convey to such person or persons as the alienor shall by deed or will appoint. But no entry, memorandum, or notice of such deed of declaration of trust has ever been made or taken on the court rolls of the said manor.
Richard Sanderson, in 1763, died seised of the said *customary tenement: and, upon his death, the same descended and
[*672 came to John Sanderson, then being his eldest son and heir according to the custom. John S., as such heir, was thereupon admitted tenant of the same tenement, to hold the same unto him during the joint lives of him and the then lord, at the will of the lord, according to the custom, yielding, paying, and doing, therefore, yearly, the accustomed rents and services for the same. John S., in January, 1818, died seised of the same tenement. Upon his death, the same descended and came to Richard Sanderson, then being the eldest son and heir of the said John, according to the custom. And, thereupon, on 26th February, 1818, the last-mentioned Richard S., as such heir, was admitted tenant of the same tenement, to hold according to the custom. The entry of such admittance on the court rolls is as follows.
Manor of Oulton. The court baron and customary court of dimissions of John Taylor, Esq., lord of the said manor, holden at," &c., - situate at Oulton, within and for the said manor, on Monday the 26th vlay of February, 1818, by Silas Saul, gentleman, steward of the said
Homage jury.” (Names of twelve persons.) “ To this court came Richard Sanderson, son and heir at law of John Sanderson, deceased, and took of the lord of the said manor, upon the demise of his said steward, an ancient messuage and tenement, with a fire hearth, in Oulton, of the rent of 18. 3d., and also a parcel of ground in Colemire, of the rent of 48. 6d., now in the hands of the said lord, to be granted to the said Richard S., upon the death of the said John S., to have and to hold the said premises, with their appurtenances, unto the said Richard S., during the *joint lives of the said John Taylor and the said Richard S., at the will of the lord, according to the cus
[*673 tom of the said manor; yielding and paying therefore, yearly, the said customary rents of 18. 3d. and 48. 6d. at the days and times usual, and doing, paying, and performing all other dues, duties, and services of right accustomed to be paid and done for the same. And, having paid the lord for a fine as in the margin, he is admitted tenant thereof."
The last-mentioned Richard Sanderson, being so seised of the same
customary tenement, before 1st January, 1838, (a) viz. on 7th January, 1832, made and published his last will in writing, executed, &c. (due attestation was then stated): in which will are the following words : “I give and devise unto the said Honour Thompson, her heirs and assigns," &c. (a certain freehold estate in fee.) “ And, as to all the rest, residue, & and remainder of my real and personal estate and effects whatsoever and wheresoever, and not herein before disposed of, subject to the payment of,” &c. (funeral expenses, and legacies), “I give, devise, and bequeath the same, respectively, unto and to the use of my sister in law, Honour Thompson, her heirs, executors, administrators, and assigns, respectively, according to the nature of the same estate respectively, to and for her and their own absolute use and benefit.”
The said Richard Sanderson, after having made his will, and without having revoked or altered the same, died on 230 August, 1837, being so seised, and leaving, him surviving, one Michael Dand, then being his heir according to the custom of the manor. The said Michael Dand,
before the day of the demise, viz., in *January, 1812, died, leaving
him surviving John Dand, the lessor of the plaintinff, then and still being the eldest son and heir of the said Michael Dand, according to the custom of the manor, as also the heir of the last-mentioned Richard Sanderson, according to the said custom. And, thereupon, John Dand entered into and upon the premises as such heir as aforesaid, and demised, &c. (to the plaintiff in ejectment, who thereupon entered, &c). The verdict then stated an ouster of the plaintiff in ejectment by the defendant, the said Honour Thompson, claiming under the said will.
On a former day, in last Easter term,(6)
Joseph Addison was heard for the plaintiff, and contended: First, that the custom restraining the power to devise was good; and, Secondly, that, supposing it bad, still the devisee, in this instance, not having been admitted, could not insist on her title by devise against the heir at law.
Montague Smith, who appeared for the defendant, stated that the last point had been unexpected: and the Court suggested that the argument should be adjourned.
In this vacation,(c)
Montague Smith was heard for the defendant, and stated that he should not insist on the defendant's title as devisee, but should contend that the lessor of the plaintiff did not appear by the special verdict to have any title.
*The lessor of the plaintiff claims as heir at law to Michael
Dand, the heir of Richard Sanderson, or immediately as heir of (a) See stat. 7 W. 4 & 1 Vict. c. 26. (6) May 1st. Before Patteson, WIGHTMAN, and ERLE, Js. Lord Desman, C. J., was absent
!c) May 9th. Before Patteson and WIGHTMAN, Jg.: Coleridge, J., bad left the Court; Lord DENMAN, C. J., was still absent.
un account of illness.
Richard Sanderson. Now neither the lessor of the plaintiff nor Michael Dand appears to have been admitted: and the question therefore is, whether, in the case of tenures such as this, the heir at law has in him the legal freehold before admittance. Richard Sanderson is admitted, in accordance with the custom of the manor as found, to hold during the joint lives of himself and the lord, at the will of the lord, according to the custom of the manor, which is, that the lands are descendible from ancestor to heir. The lessor of the plaintiff had a mere right to claim admittance: till admittance he had no right of entry even against & stranger. In an ordinary copyhold of inheritance it is otherwise: but there the custom and the language of the admittance differ from those in the present case ; 2 Scriven on Copyholds, p. 755 (4th ed.). From note (p) to 1 Watkins on Copyholds, p. 52, ch. 3, the distinction appears tween copyholds of inheritance and copyholds for life: in the latter class of copyholds the surrenderee does not come in by the surrenderor but by the lord. [WIGHTMAN, J.-And you say that there the heir is not in by descent.] He is not. It is not alleged that Michael Dand was ever seised at all.
Joseph Addison, in reply.--The case of a copyhold for life is not applicable: here the land is descendible from ancestor to her. It is true that in ordinary copyhold of descent the tenant is said to hold at the will of the lord simply, and not, as here, for the joint lives of the lord and tenant at the will of the lord: but the two cases are not essentially distinguishable. In *strictness, all copyholds are held at the will of the lord: the rest of the description of the interest is
[*676 a mere allegation of the custom by which the will is controlled and defined. Therefore, as against all but the lord, the heir here, as in the common case, has a good title before admittance: the nature of his title is explained in Right dem. Taylor v. Banks, 3 B. & Ad. 664 (E. C. L. R. vol. 23). [Patteson, J.-What estate has the lessor of the plaintiff here? Not an estate of inheritance.] It is an inheritance, descendible according to the custom, not according to the grant. [PatTESON, J.-It seems rather contradictory that a custom should make an estate for life descendible to the heir. Does the estate for life descend? That is what is found. WIGHTMAN, J.-Consider the reason of the rule, in the case of ordinary copyholds, that the heir may maintain ejectment immediately upon the death of the ancestor, except as against the lord. It is, that it is supposed that the estate descends immediately to him, and he becomes tenant at once. But there the habendum of the admittance is to the ancestor and his heirs. PATTESON, J.—That principle appears from Roe dem. Jeffereys v. Hicks, 2 Wils. 13, 16: here thie admittance is not so.] It is so, unless the allegation of the descendibleness is struck out of the custom. The act of the lord, in admitting a surrenderee or an heir, is mere form.
Cur. adv. vult. PATTESON, J., now delivered the judgment of the Court VOL. XIII.-51
The only question now for the opinion of the Court is, whether the *677]
lessor of the plaintiff has such a legal *estate as will enable him
to sustain an action of ejectment. It appears by the special verdict that the customary lands in the manor are descendible from ancestor to heir, and are held for the joint lives of the lord and the tenant for the time being, at the will of the lord, according to the custom of the manor; and that they pass by customary deed of bargain and sale, and surrender, and admittance thereon.
In 1763, on the death of Richard Sanderson, who died seised, the land in question descended to John Sanderson, his son, who was admitted to hold to him during the joint lives of himself and the lord at the will of the lord according to the custom. John Sanderson died seised in January 1818; on whose death the land descended and came to Richard Sanderson, his son, who, on the 26th February, 1818, was admitted. The form of admittance is set out, whereby it appears that he took the land now in the hands of the said lord, to be granted to the said Richard Sanderson,” « to have and to hold” the same « unto the said Richard Sanderson, during the joint lives of the said John Taylor" (the lord), and himself, “at the will of the lord, according to the custom of the said manor.” He died so seised on the 23d of August, 1837, leaving Michael Dand his heir, who died in January, 1842, leaving the lessor of the plaintiff his son and heir, and also heir of the last Richard Sanderson. No admittance of either of the Dands is stated.
Had this copyhold been an estate of inheritance, and Richard Sanderson, the person last admitted, been admitted to hold to him and his heirs, no doubt the heir would have a good legal title against all the
*world except the lord, because the admission to him and his heirs *678]
creates an estate in fee, which continues as long as there is an heir, through any number of descents, and is tantamount to an admission of each heir in succession, against all persons but the lord. But here the admission of Richard Sanderson was only to him during the joint lives of himself and the lord; and on his death the estate absolutely determined, unless the words used in describing the custom, viz. - descendible from ancestor to heir,” create some estate or interest which could so descend.
We cannot see how it is possible to give any such effect to those words. The custom of the manor appears to be, to grant estates for the joint lives of the lord and tenant only, not estates of inheritance at all, though the custom may give the heir of the tenant a right to have a new grant from the lord for the joint lives of himself and the lord; and that is, in truth, the meaning of the words “descendible from ancestor to heir."
The case of Doe dem. Hamilton v. Clift, 12 A. & E. 566 (E. C. L.
R. vol. 40),(a) is a direct authority against the right of the lessor of the plaintiff to maintain ejectment before admittance. That was a case in which ejectment was brought to recover a customary tenement of a manor in which the admission was to hold during the joint lives of the
lord and tenant according to the custom of the said manor," which was « that the copyhold tenements of the said manor are held by the tenants thereof, to them and their heirs, by custom of tenant-right, of the lord of the said manor:” and it was held that upon the death of the *ancestor the estate ceased: and, though, by the custom of the manor, there was a tenant-right of renewal, the heir until ad
[*679 mitted had no estate at all in the premises.(8) We find also that in the
b case of copyholds for lives, if the tenant surrenders to the use of another to whom the lord grants, the estate vests in the lord, and the grantee is in by him, and not by the surrenderor; King v. Lorde, Cro. Car. 204, cited by Scriven, vol. 1, p. 145, 4th ed.; and 6 Vin. Abr. 239, Copyhold (X e), pl. 5. There can be no difference whether the estate of the copyholder for life be determined by his own act of surrender or by his death. The legal estate is equally in the lord in either case, until he grants it out again.
And, as no such grant to the lessor of the plaintiff is found by this special verdict, it appears that this action of ejectment cannot be sustained; and our judgment must be for the defendant.
Judgment for defendant. (a) See pp. 567, 581. (6) 12 A. & E. 579 (E. C. L. R. vol. 40).
The QUEEN v. The Inhabitants of BARNSLEY. May 12.
END OF EASTER VACATION.