It appears, therefore, from the foregoing section, that when the lands to be sold are of copyhold tenure, the estate tail must be barred in the mode pointed out by the 50th, and three following sections of the act, namely, by surrender if the estate be legal, and by surrender or deed if the estate be equitable; and that the estate tail in money subject to be invested in the purchase of lands may be barred by assignment, that being the applicable mode of assurance. (1) Disposition by commissioners of bankrupt. Assignees may execute powers. Proceeds of sale to be re ceived by official assignee. 4. Of Dispositions by Commissioners and Assignees in Bankruptcy, and Insolvency. (1.) When the Copyholder is not a Bankrupt Tenant in Tail. In the case of a copyholder becoming bankrupt, the powers which, under the 68th section of the 6 G. 4, c. 16, the commissioners had of selling the copyhold or customary lands of the bankrupt by deed indented and inrolled, and of authorizing thereby any person to surrender the same for the purpose of any purchaser being admitted, are by the 1 & 2 W. 4, c. 56, ss. 7, 12 and 16, made exercisable by any one or more of the commissioners of the bankruptcy court, or by the commissioners named in the fiat issued in lieu of a commission of bankrupt. Where a bankrupt has a beneficial power, the 77th section of 6 G. 4, c. 16, authorizes the assignees to exercise the for the benefit of the creditors in such manner power as the bankrupt might have exercised the same. By the 22nd section of 1 & 2 W. 4, c. 56, the proceeds of the bankrupt's real and personal estate are to be in all cases received by the official assignee appointed by the act; but by the 23rd section, such assignee is restrained from interfering with the assignees chosen by the cre (1) See Forms of Assignment and Re-assignment, Nos. 7 and 8 in Appendix. ditors, in directing the time and manner of effecting any sale of the bankrupt's estate; and by the 25th and 26th sections of the act, the bankrupt's real and personal estate is to vest in the assignees to be chosen by the creditors by virtue of their appointment, without any conveyance or assignment for that purpose. The admission of the commissioners or assignees is not Admission of necessary, they having a power only to exercise. commissioners or assignees unnecessary. Copyholder becoming insol vent. In the case of a copyholder becoming insolvent, the conveyance he is directed by the 7 Geo. 4, c. 57, s. 11, to execute, vests any real estate he may have in the provisional assignee; and by section 19, on the appointment by the court of an assignee, being a creditor, the estate and powers vested in the provisional assignee are to be conveyed and assigned to the assignee so appointed, in Officialassignee trust for himself and the rest of the creditors; and the not to interfere estate of the insolvent is to be vested in such creditors' assignee, as if the conveyance had been made by the insolvent to him. with sales. Conveyance sional assignee from provito be entered on court rolls. creditor's as By section 20, if the insolvent be entitled to any copyhold or customary estate, the conveyance and assignment from the provisional to the creditors' assignee is to be entered on the court rolls, and he is empowered to surrender or convey such copyhold or customary estate to any Powers to be purchaser of the same. And by the 22d section, all executed by powers over real estate vested in the insolvent, and all trusts or powers created for his benefit, (except the right of nominating to a benefice,) are vested in the creditors' assignee, to be executed for the benefit of the creditors. The admission either of the provisional or the creditors' assignee is considered not to be requisite. (1) signee. Admission of provisional or creditors' assignee unneces (1) Scriv. Cop. 375. See Form of Surrender from the Assignee of an in- sary. solvent Debtor to a Purchaser, No. 10, in Appendix. Bankruptcy of tenant in tail. Disposition by commissioner, being bankrupt. tenant in tail Protector not consenting to disposition. Disposition with consent of protector. Disposition by commissioner to be entered on court rolls. (2.) Of the Disposition by the Commissioner of a Bankrupt Copyholder Tenant in Tail. By the 55th section of 3 & 4 W. 4, c. 74, so much of the 6 Geo. 4, c. 16, as empowered the commissioners named in any commission of bankrupt, issued against a tenant in tail, to make sale of any hereditaments whereof such bankrupt was seised of any estate tail in possession, reversion, or remainder, and whereof no reversion was in the crown, is repealed, such repeal not extending to bankruptcies prior to 1st January, 1834. The 56th section empowers any commissioner acting under the 1 & 2 W. 4, c. 56, to dispose by deed of the lands of any bankrupt tenant in tail of any tenure, to a purchaser for valuable consideration, and by the disposition to create as large an estate as the tenant in tail could have done had he not become bankrupt. If at the time of the disposition there be a protector of the settlement creating the entail, and his consent would have been requisite to have enabled the tenant in tail, had he not become bankrupt, to have disposed of the lands to the full extent, and such protector should not consent to the disposition, the estate created by the commissioner will be as large as the tenant in tail, if he had not become bankrupt, could have created without the protector's consent. The 58th section enacts, that if there is a protector, the commissioner shall stand in the place of the tenant in tail, so far as regards such protector's consent, and that the disposition by the commissioner, if made with the consent of such protector, shall have the same effect as it would have had if the tenant in tail had not become bankrupt, and such disposition had been made by him under the act with the consent of the protector. The 59th section enacts, that every deed of disposition by the commissioner of copyhold lands shall be entered on the court rolls; and that if there be a protector con- Consent of senting to the disposition, and he give his consent by a dis- protector. tinct deed, the consent shall be void, unless the deed of consent be executed by the protector on or before the day on which the deed of disposition is executed by the commissioner; and that such deed of consent shall be entered on the court rolls; and that it shall be imperative on the lord, &c., to enter on the court rolls every deed required by that clause to be entered, and to indorse on every deed a memorandum testifying such entry. commissioner. The 66th section enacts, that the disposition by a com- Operation of missioner of copyhold lands shall, in every case where the disposition by estate of the bankrupt is not merely equitable, operate as if the lands had, for the same estate which shall have been acquired by the disposition, been surrendered into the hands of the lord to the use of the person to whom the disposition is made; and that such person may claim to be admitted tenant of such lands, as if they had been surrendered to his use, and shall, on being admitted, pay the fines and other duties which could have been demanded, if such lands had passed by surrender to his use. It is further observable that the 64th section enacts, that subject to the powers given to the commissioner, the tenant in tail shall have the same powers of disposition under the act as if he had not become bankrupt. 5. Of the Admission of Purchasers under a Bank- der a bankruptcy or in The purchaser from the commissioner in the case of Admission unbankruptcy, and from the creditors' assignee in the case of insolvency, is the party proper to be admitted tenant, solvency. and pay a fine to the lord, and thereby perfect the title by the acquisition of the legal estate. Vacancy of possession. Proclamations. Seisure quousque. Notice to heir. SECT. VII.-Of the Consequences of a Vacancy of 1. Of the Proclamation by the Lord, and Seisure When the possession becomes vacant by the tenant's death, that circumstance is presented by the homage at the first court after it becomes known; and the first proclamation is made for the heir or other claimant to come in and be admitted; if no one appear and make out his title, a second proclamation is made for the same purpose at the next court; if no one then appear, a third proclamation is made at the succeeding court; and if no claim to the copyhold is then established, the lord or steward may issue his precept to the bailiff to seize the copyhold until a tenant appears. These proclamations are necessary by the general law of copyholds, independently of any custom, and must be made at three consecutive courts: and a succeeding lord may complete proceedings begun in the time of his predecessor to compel an appearance. (1) If the heir is known, he should be personally served with notice to come into court and be admitted, or such notice should be left at his usual place of abode, which may be sufficient, in default of appearance, to justify a seisure without any proclamation: but in the absence of such notice, there must be three proclamations at three consecutive courts, to entitle the lord to seise. (2) It seems that if the heir, being of age, be within the realm at the time of the first proclamation, and afterwards leave the realm, the proclamation will bind him, as he shall not defeat the (1) Doe v. Trueman, 1 Bar. & Adol. 736. |