manor, and may take the examination of a married woman disposing of her copyhold estate (ƒ). By the customs of some manors the lords were restrained from granting licences to their tenants to alien their ancient tenements otherwise than by entireties: the restriction was removed by the statute 4 & 5 Vict. c. 35, s. 92. Until admittance the surrenderer continues tenant to the lord, and the surrenderce acquires only an inchoate right, to be perfected by admittance (g). This admittance is usually taken immediately; but if obtained at any future time it relates back to the surrender, so that if the surrenderer should afterwards have surrendered to any other person, the admittance of the former surrenderee, even though it should be subsequent to the admittance of the latter, will completely displace his estate (). No one except an heir can surrender a copyhold till he himself has been admitted, consequently equitable, contingent, and executory interests in copyholds may be transferred by deed; otherwise they would be unalienable (i). The proper mode of conveying such interests is by assignment. The lord cannot, by conveying away part of the manor, prejudice the rights of the tenants; and where part of the manor has been severed, the copyholders of that part can alienate by a common law assurance (k). (f) Eddleston v. Collins, 3 De G. M. & G. 1. (g) Wms. R. P. 340. (h) Id. 341; 1 Watk. Cop, (i) Doe v. Tomkyns, 11 East, 185; Crut. 37, c. 1, § 26. (k) Phillips v. Ball, 6 C. B. (N. S.) 811. married women. A valid surrender may at any time be made of Surrenders by the lands of a married woman by her husband and herself, she being on such surrender separately examined as to her free consent by the steward or his deputy (7). If her estate be merely equitable, a surrender by her and her husband after she has been privately examined is binding as if her estate were legal; or her equitable estate will pass by an acknowledged deed (m); and a surrender to the use of a purchaser by the copyholder's wife with his consent will bar her right to freebench, if any exist by special custom, although at the date of the surrender the purchaser has no legal estate in the premises (n). The Statute of Uses, 27 Hen. 8, c. 10, has no application to copyhold lands the freehold of which in contemplation of the law still remains in the lord; but when a surrender of copyholds is made into the hands of the lord to the use of any person, the lord is merely an instrument for carrying the intended alienation into effect; and in the case of copyholds surrendered to the use of one in trust for another, the Court of Chancery would exercise the same jurisdiction over the surrenderee in compelling him to perform the trust as it would in the case of freeholds vested in a trustee (o). In practice, however, the words of limitation in a surrender are the same as those which would be required for the like purpose () 1 Watk. Cop. 64. (m) See supra, p. 187. (n) Dart, 370; Wood v. Lambirth, 1 Ph. 8; Wms. R. (0) Wms. R. P. 344. Limitation of copyhold estates; -to such uses as purchaser shall appoint; -uses of surrender govern admittance. Dower Act does not apply to copyholds. Freebench. in freehold lands, unless the peculiar custom authorise a variation (p). With a view to save or postpone the payment of a fine on alienation and the expenses of admission, it has been not unusual to surrender copyholds to such uses as the purchaser shall appoint, and in default of appointment to the use of the purchaser in fee (q); but in the absence of a special custom to that effect the lord is not compellable to receive such a surrender (r). If however the lord accept such a surrender he is bound by it, and must admit the appointee in case the power be exercised (s). The uses expressed in the surrender entirely govern the operation of the subsequent admittance. If any other person than he to whose use the surrender was made be admitted by the lord he acquires no title ; and if on the admittance of the surrenderee other words of limitation are used than those in the surrender they are of no avail (t). The Dower Act does not apply to copyholds; and a widow's right to freebench will not be defeated by the insertion in the surrender of limitations similar to those usually inserted to bar dower in a conveyance of freeholds (u). A special custom is requisite to entitle a wife to any interest in the lands of her husband after his (p) Burton, 1278. (q) R. v. Oundle, 1 A. & E. 283; 3 N. & M. 484. (r) Flack v. Downing Coll., 13 C. B. 945. (8) Eddleston v. Collins, 3 De G. M. & G. 1; and see Glass v. Richardson, 9 Ha. (u) Smith v. Adams, 5 De G. M. & G. 712; Powdrell v. Jones, 2 Sm. & G. 407. decease: where such an interest of the wife exists it is termed freebench, and usually consists of a life interest in one divided third part of the lands, or sometimes of a life interest in the entirety (x). Freebench however often differs from the ancient right of dower in this important particular, that whereas the widow was entitled to dower of all freehold lands of which her husband was solely seised at any time during the coverture, the right to freebench frequently attaches only on lands of which the husband dies seised (y). Freebench is therefore often no impediment to the free alienation by the husband of his copyholds without his wife's concurrence (~). A special custom is requisite to entitle a husband Curtesy. to be tenant by the curtesy of his wife's copyhold (a). The covenants for title on a sale of copyholds are the same as those on a sale of freeholds (6), and as no covenants for title can be entered into upon the court rolls, a separate deed is prepared for the purpose of containing the covenants. This deed may be executed either before or after the surrender; if it precede the surrender it assumes the form of a covenant by the vendor, that he and all other necessary parties will surrender to the use of the purchaser followed by covenants similar to those for title to freeholds; if, which is the preferable course, it follow the surrender it contains merely the last Covenants for holds. title to copy Covenant to surrender less advantageous than actual surrender. mentioned covenants. Since, however, the copyhold passes only by the surrender, the purchaser should not pay his purchase-money until the surrender has been actually made; for the deed of covenant is nothing more than an agreement to convey, which may be enforced in Equity in a suit for specific performance, and for the breach of which damages may be obtained at Law from the heir; and if after the execution of the deed of covenant, and before the surrender another purchaser for valuable consideration without notice should take a surrender to himself, and be admitted, he having an equal equity with him claiming under the covenant, and having the legal estate, would be entitled to hold the land against the covenantec (c). A covenant to surrender does not make the covenantor a trustee for the purchaser, but he may be made such a trustee by express declaration; and should he die or refuse to surrender, a vesting order, or an order for some other person to surrender in his stead, may be obtained under the Trustee Act, 1850 (d). Such an express declaration should therefore always be contained in a deed of covenant to surrender a copyhold. The practice of taking a covenant to surrender has probably arisen from the circumstance that copyholds are frequently sold together with freeholds at an entire price for the whole, and that the purchasemoney is paid at the time of the execution of the deed of conveyance of the freeholds, the covenant (c) Oxwick v. Plumer, 5 Bac. Abr. 43; Whitbread v. Jordan, 1 Y. & C. 304; 4 Y. & C. 563; Plumbe v. Fluitt, 2 Anst. 432. (d) Re Collingwood, 6 W. R. 536. |