The Wills Act. Devise of copyhold. Fines payable by devisee. testator was subsequent to it (d). And an enactment to the like effect is contained in the Wills Act (e). By 1 Vict. c. 26, s. 3, all real estate of the nature of customary freehold, or tenant right, or customary, or copyhold, may be devised, notwithstanding the testator may not have surrendered the same to the use of his will; or notwithstanding that, being entitled as heir, devisee, or otherwise, to be admitted thereto, he shall not have been admitted thereto; or notwithstanding that the same in consequence of the want of a custom to devise or surrender to the use of a will, or otherwise, could not at law have been disposed of, if the Act had not been made; or notwithstanding that the same, in consequence of there being a custom that a will, or a surrender to the use of a will, shall continue in force for a limited time only, or any other special custom, could not have been disposed of by will according to the power contained in the Act, if the Act had not been made. By the same Act stamp duties, fees, fines, and sums of money, are made payable by the person claiming under the will, as if the testator had surrendered to the use of his will, where he might by the custom of the manor have so surrendered; and as if the testator had been first admitted, where he might have been and was not so admitted before surrendering to the use of his will (s. 4). This clause does not in terms include the case of a devisee or surrenderee devising before admittance where there was no custom in the manor to surrender to the use of a will. Mortgage of minors. Accretions. (9.) Presentment and other matters. If the surrender was made out of Court, it was sometimes permitted to be vacated for want of a proper presentment, and a new surrender was taken (ƒ). But now presentment by the homage is not essential to the validity of an admission (g). A mortgage of a manor will carry with it copyholds of that manor subsequently purchased by and surrendered to the lord (h): and the mortgagee is entitled to all accretions of the property: and if a puisne mortgagee and the mortgagor pay off a prior mortgage, the former will have the full benefit of the security discharged from the prior incumbrance (i). (d) Doe v. Bird, 5 B. & Ad. 695. (e) 1 Vict. c. 26, s. 26. (f) Fawcett v. Lowther, 2 Ves. S. 304. (h) 1 Scriv. Cop. 33, ed. 4; Doe v. Pott, 2 Doug. 709. (i) Erp. Bisdee, 1 M. D. & De G. 333 The mortgagor of a manor, while in possession, may, hold Courts (4). (10.) Covenant to surrender. it seems, In some instances the mortgage consists merely of the surrender and condition entered on the rolls; but more frequently there is a previous covenant to surrender, containing covenants for title, and for payment of the money, which otherwise the mortgagee does not obtain, and this deed of covenant bears the ad valorem stamp (1). Where a surrender and admittance of a purchaser has been entered on the Court rolls in such a manner as would be a fraud upon an intended mortgagee, who had advanced his money upon the security of the property, the Court will, upon the consent of the lord being given, or his being a party to the suit, order the entry to be reformed (m). (11.) Insurance of lives, &c. In mortgages of copyholds for lives, it is usual to insure the lives of the cestuis que vie for further security. But where money is raised by the Court upon such property, the persons entitled cannot be compelled to insure (n). The statute of 13 Eliz. c. 5, does not of its own force apply to 13 Eliz. c. 5. copyholds, unless by tenure or special custom they were subject to debts (o). Under 27 Eliz. c. 4, voluntary settlements of copyholds are 27 Eliz. c. 4. fraudulent and void, as against subsequent purchasers for valuable consideration, which includes mortgagees (p) even with notice (q). (12.) Enfranchisement. under it. Under the Copyhold Commutation and Enfranchisement Act, Enfranchisement Act, and power is given to a tenant having a limited interest, and who shall mortgages pay the costs or expenses of the commutation or enfranchisement, with the consent of the commissioners under their hands, and by a simple entry on the Court rolls of the manor, to charge such costs and expenses, with interest at 4 per cent. per annum, on the copy under it. Enfranchise- hold lands, but one-twentieth part of the principal charge is to be ment Act, and mortgages paid off in each year, and such charge is to be subject to prior mortgages; and the like power is given to the lord of the manor having a partial interest or being a trustee (in the case of a commutation) (r). 6 & 7 Vict. c. 23. The consideration money for the enfranchisement is made a charge upon the lands, carrying interest from the date of the enfranchisement or the day mentioned in the apportionment (as the case may be), and the persons for the time being seised of the manor are to be deemed to stand seised of the lands as mortgagees in fee for the benefit of the lords and stewards of the manor respectively, with the like powers for enforcing payment as mortgagees in fee, and with a power of distress as for rent in arrear; and such charge is to have priority to all other charges except the tithe commutation rentcharge (s). The tenant may raise such enfranchisement money by mortgage for any term of years (t). And power is given to the commissioners, at the desire of the tenant, and with the consent of the lord, to postpone the payment of such part of the enfranchisement money as is payable in respect of a future fine, &c., until such fine, &c., becomes payable, with such addition as the commissioners shall direct (u); and, in the other cases, to postpone the payment of such enfranchisement money for fourteen years, or, if such tenant be tenant for life, then for his life and one year longer, interest at 4 per cent. being payable in the meantime, and the tenant being no longer protected on default of payment of interest on one-half of the sum for the space of one year and a half, and the lord being invested with a power of distress on default of payment of interest on any part of the sum charged for thirty days (x). By 6 & 7 Vict. c. 23, s. 12, power is given to the commissioners, while the manor is subject to a fee farm rent or other charge not exceeding the amount of the quit rents payable to the lord of the manor, to pay an adequate part of the enfranchisement money into the bank, in the name of the Paymaster General, to be applied in redeeming the charge, and in exonerating the land enfranchised therefrom (y). (r) 4 & 5 Vict. c. 35, ss. 65-69; 7 & 8 Vict. c. 55, s. 1-3. (s) 4 & 5 Vict. c. 35, ss. 70, 71; 7 & 8 Vict. c. 55, s. 4. The like priority of charge is given to an annual corn rent (being the consideration for enfranchise ment) under the 6 & 7 Vict. c. 23, s. 7. (t) 4 & 5 Vict. c. 35, s. 72. (u) Ib. s. 60. (x) Ib. s. 62. (y) 6 & 7 Vict. c. 23, s. 12; and see 7 & 8 Vict. c. 55. By 7 & 8 Vict. c. 55, s. 1, the provisions of the former Acts as to Recovery of costs, charges the recovery of expenses, costs and charges to be paid by any tenant and expenses. being a trustee and not beneficially interested in the lands of which he stands admitted tenant to be effected by any commutation or enfranchisement under the Acts, shall extend as well to cases in which there shall not as to those in which there shall be an apportionment or commutation on enfranchisement in pursuance of the Acts, and persons with limited beneficial interests paying off such expenses, costs and charges have a charge on such lands for the same. 1852. Under the Copyhold Act, 1852, the compensation to be received Copyhold Act, by the lord for enfranchisement may remain as a first charge on the enfranchised lands, except tithe commutation, rentcharges, or charges under the Drainage Acts, in manner therein provided (z). By the Copyholds Acts Amendment Act, 1858 (a), the considera- Copyhold Act, tion or compensation for commutation or enfranchisement payable under the Copyhold Acts, may, with the consent of the commissioners, be charged on land commuted or enfranchised in manner therein provided. As to stamps on mortgages of copyholds, see (b). 1858. The Copyhold Inclosure and Tithe Commissions were amalga- Amalgamamated by 14 & 15 Vict. c. 53, amended by 25 & 26 Vict. c. 73. tion of copyhold and tithe commissions. 264 CHAPTER XXVI. Forfeiture. Sect. 1. Mortgage by underlease 2. Declaration of trust of nominal reversion 4. Covenants for title under Conveyancing Act and Law of MORTGAGES OF LEASEHOLDS. Page. 264 265 266 ib. 267 268 ib. 269 270 ib. 5. Comparative advantages of mortgage by underlease and 6. Renewal of lease by mortgagee 7. Renewal of lease by mortgagor 8. Goodwill and other matters MORTGAGES of leaseholds may be by underlease or by assignment. When leaseholds are made a mortgage security, it is usual, in order to avoid liability for the rent and covenants in the original lease, to take an underlease at a pepper-corn rent, reserving the last day, or a few days, of the original term, and the mortgagor covenants to pay the rent, and perform the covenants in the original lease. The security, however, is affected by the possibility of a breach of covenant by the mortgagor, and where leaseholds are forfeited by breach of covenant by the mortgagor, the mortgagee has no remedy against the lessor (a). Although a covenant for the assignment of the nominal reversion upon a sale, in such manner as the purchaser should require, would not render the mortgagor trustee for a purchaser (b) so as to (a) Nokes v. Fish, 3 Drew. 735; Hughes v. Howard, 25 Beav. 575. (b) Re Propert, 22 L. J. Ch. 948, L.JJ. |