SECTION 10.

COVENANTS OF INDEMNITY.

Even in the absence of any express stipulation in the contract of sale, the purchaser is bound to give certain covenants of indemnity to the vendor. Thus, on the sale of leaseholds the purchaser must enter into a covenant to observe and perform the covenants contained in the lease and to indemnify the vendor against the same (l). In one case it was held, on an assignment by trustees, that the indemnity applied to past breaches committed prior to the sale (m); but it is conceived that this would not be so where the vendor conveys as beneficial owner (n). So also on the sale of an equity of redemption the purchaser must covenant to indemnify the vendor against the mortgage debt and interest (o). The same principle applies to the sale of freeholds subject to restrictive covenants; but it has been recently decided by the Court of Appeal (p) that the purchaser is entitled to preface his covenant to observe and perform with the words "with the object and intention of affording to the vendor a full and sufficient indemnity in respect of the restrictive covenants, but not further or otherwise."

(1) Dart's Vendors and Purchasers, p. 629; cf. Land Transfer Rules, 1903, rr. 133, 138.

(m) Gooch v. Clutterbuck, [1899] 2 Q. B. 148.

(n) Williams' Vendors and Purchasers, p. 592. (0) Bridgman v. Daw (1892), 40 W. R. 253.

(p) In re Poole and Clarke's Contract, [1904] 2 Ch. 173.

SECTION 11.

ASSURANCES OF COPYHOLDS.

When the estate sold is of copyhold tenure, if the vendor is beneficially interested, the surrender to the purchaser is usually accompanied by a deed implying the ordinary covenants for title.

If the vendor is a trustee for sale under a will containing a power to appoint to a purchaser, with or without a devise to the trustee subject to such power, the trustee can convey by way of bargain and sale, and a double admittance with the consequent fines be thus avoided (q); but if there is a devise to trustees, the lord can require them to be admitted, and they cannot avoid the fees consequent thereon by calling upon the lord to admit an infant heir (r), though he cannot in such a case seize quousque for want of a tenant, and the estate will remain in the customary heir until the devisee is admitted (s).

The surrender may be made either in or out of court. If made in court it is entered on the court rolls of the manor, and a copy of the entry, signed by the steward, and stamped, is delivered to the purchaser. If the surrender is made out of court, the document evidencing the surrender is signed by the parties and the steward, and stamped, and entered upon the court rolls (t). An equitable

(q) Glass v. Richardson (1852), 2 De G. M. & G. 658; R. v. Wilson (1863), 9 Jur. (N.s.) 439.

(r) R. v. Garland (1870), L. R. 5 Q. B. 269.

(8) Garland v. Mead (1871), L. R. 6 Q. B. 441.

(t) Copyhold Act, 1894 (57 & 58 Vict. c. 46), s. 85.

interest in copyholds is not the subject of a surrender except for the purpose of barring an estate tail. Equitable interests are usually conveyed by deed of assignment (u).

The legal assurances are usually prepared by the steward of the manor.

Until admittance the surrenderor remains tenant to the lord, and the person to whose use the surrender is made acquires merely a right to be admitted (x), which right may be exercised at any time, though it is usually done immediately; but whenever the admittance is taken it will relate back to the surrender (y), and on such admittance the surrenderee becomes tenant to the lord, to whom he must pay the customary fine for his admittance.

The lord of the manor is entitled to a fine in respect only of a transmission of the legal estate in copyholds, and cannot claim a fine in respect of any devolution of the equitable estate where the legal estate remains in the person who has been already admitted tenant on the rolls (). A covenant to surrender, though binding as between surrenderor and surrenderee, cannot be enforced by the lord so as to entitle him to compel a new admittance and a fine in respect thereof (a).

(u) Scriven on Copyholds, p. 116; Elton on Copyholds, p. 93. (x) Doe d. Tofield v. Tofield (1809), 11 East, 246; Doe d. Winder v. Lawes (1837), 7 Ad. & E. 195; Rex v. Dame Jane St. John Mildmay (1833), 5 B. & Ad. 254.

(y) 1 Watk. Cop. 103.

(2) Rex v. The Lord of the Manor of Hendon (1788), 2 T. R. 484.

(a) Hall v. Bromley (1887), 35 Ch. D. 642.

The fine paid to the lord is either certain or arbitrary; but if arbitrary is restrained to two years' improved value of the land, after deducting quitrents (b).

The admittance of one joint tenant or one coparcener is the admission of their companions, and one fine only on their admission is therefore payable (c), and in the absence of special custom the steward is entitled to one fee only (d). It has been held that if copyholds are devised to three trustees, who are also executors and have proved the will, two of the trustees can disclaim the copyhold devise, and compel the lord to admit the remaining trustee as sole tenant (e). These decisions are quite inconsistent with the usually accepted doctrine that an executor who is also trustee cannot disclaim the real estate after accepting the office of executor (ƒ). Tenants in common must, however, be admitted severally, and pay a fine in respect of the share to which they are admitted, and on their death, as also on the death of a coparcener, the representatives must be admitted and pay several fines in respect of their admissions (g).

Where copyholds are limited in remainder subject to any particular estate, the admission of the tenant of the particular estate is the admission of those in remainder, and one fine only is payable, which fine should be apportioned between the tenant of the

(b) 1 Watk. Cop. 308.

(c) Scriv. Cop. 347.

(d) Traherne v. Gardner (1856), 5 El. & Bl. 913.

(e) Wellesley v. Withers (1855), 4 El. & Bl. 750; Bence v.

Gilpin (1868), L. R. 3 Ex. 76.

(f) Lewin on Trusts, p. 217.

(g) 1 Watk. Cop. 82.

particular estate and the remainderman, and should be paid by the latter on his coming into possession (h); but if a special custom exists by which a fine is payable by the remainderman on coming into possession, he should be admitted (i). If copyholds are sold by an equitable tenant for life under the Settled Land Acts the lord can only claim one fine although the trustees have not been admitted (k).

On an estate falling into the possession of a reversioner he may enter without re-admission or payment of a fine, but the heir of the reversioner must be admitted and pay a fine, and the same rule applies in the case of the heir of a remainderman, and such. heir may surrender before admittance (), though a surrender by a surrenderee before his admittance is void (m).

Neither the Statute De Donis (n) nor the Statute of Uses (0) extend to copyhold estates, and the lord of a manor is not bound to receive a surrender of copyholds by a deed burdened with trusts or to such trusts as the surrenderee shall appoint, and in default of appointment to the use of the surrenderee, his heirs and assigns (p).

(h) Scriv. Cop. 294.

(i) Doe d. Whitbread v. Jenney (1804), 5 East, 522 ; 1 Watk. Cop. 36.

(k) In re Naylor and Spendla's Contract (1886), 34 Ch. D. 217.

(1) Reg. v. The Lady of the Manor of Dullingham (1838), 8 Ad. & El. 885; Evelyn v. Worsfold (1849), 15 L. T. (o.s.) 4. (m) 1 Watk. Cop. 81.

(n) 13 Edw. 1, c. 1.

(0) 27 Hen. 8, c. 19.

(p) Flack v. Downing College (1853), 13 C. B. 945.