having no legal estate, (1) though he may deal with his equitable interest before admittance by contract or will.(2) But the heir of a copyholder may both surrender and de- Copyhold heir. vise before admittance, he having a good title against all persons except the lord. (3) Where there are joint tenants of a copyhold, the tenancy will be severed by the surrender of one of them; and before the statute, 55 G. 3, c. 192, dispensing with a surrender to will, it would have been severed by such a surrender, and a devise in pursuance thereof. (4) And there are grounds for contending, that a devise after the statute, and before the repeal thereof, would have the same effect. (5) Severance of joint tenancy. 55G. 3, c. 192. terest. Though a joint tenancy of the legal estate in copyholds Joint tenancy can be severed only by surrender, yet a joint tenancy of the of equitable inequitable interest therein may be severed by deed. (6) And Mode of effectthe mode of effecting a partition of copyholds is, for the ing partition. joint tenants, coparceners, or tenants in common, to surrender to the lord to the use of the several parties in certain specified allotments agreed upon. (7) To the validity of a surrender, it is requisite that the Validity of sursurrenderor be of age, and under no legal incapacity; for render. whosoever is incapable of conveying land at the common law, cannot without a special custom surrender copyhold property; but the surrender of an infant may be supported Surrender of inby custom : (8) thus, by the custom of the manor of Pan- fant. nington, an infant of the age of twelve years may surrender: (9) but although a surrender is not binding on the (1) Doe v. Tofield, 11 East, 246. (2) Davie v. Beversham, 3 Ch. Rep. 2. (3) Co. Cop. s. 41. Supp. to Cop. s. 5. Right v. Banks, 3 Bar. & Adol. 664. King v. Turner, 1 Mylne & Keen, 456. (4) Gale v. Gale, 2 Cox's C. C. 136. (5) Vide infra, s. V. (6) Rogers v. Downes, 9 Mod. 293. (7) 2 Watk. Cop. 152, [4th ed.] n. (8) Co. Cop. s. 34. (9) 2 Watk. Cop. 403, [3rd ed.] Execution of power by in fant. Infant trustees infant in the absence of custom, yet if for his benefit, it is voidable only on his coming of age, and not absolutely void, and may be either avoided or affirmed at that period. (1) An infant, it may be observed, cannot execute a power where his interest is concerned, but he may execute a power simply collateral, and where he is a mere instrument or conduit pipe. (2) The 1 W. 4, c. 60, which applies to land of every and mortgagees tenure, gives certain powers over estates vested in infant trustees and mortgagees. Surrender by husband and wife. Surrender by wife alone. Surrender cannot operate wrongfully. Discontinuance of freehold lands. When husband and wife are entitled to copyhold property in her right, the surrender must be made by both, she being separately examined as to her consent by the lord, the steward, or his deputy; and a custom for the wife to dispose of the property without her husband's consent, or without her private examination, could not be supported. (3) But a surrender by a wife alone, with her husband's consent, would be good, if supported by custom; and without a custom, if made in her husband's presence, and with his assent, testified by his immediate admittance under it, she having been first separately examined: (4) and a wife living apart from her husband, and by his covenant in a deed of separation authorized to dispose of her estate, may alone surrender without a special custom. (5) It is observable, however, that in the case last referred to the wife surrendered as a feme sole. No greater estate can be passed by a surrender than the person surrendering is entitled to, as a surrender cannot operate wrongfully. (6) If a tenant in tail, or a husband seised in right of his wife of freehold lands, convey them by feoffment, (1) 3 Burr. 1806. Co. Litt. 51 b, n. (3) (3) Stevens v. Tyrell, 2 Wils. 1. Amb. 629. (4) Scamon v. Maw, 3 Bing. 378. (5) Compton v. Collinson, 2 Bro. C. C. 377. 1 H. Bl. 334. discontinuance. they are said to be discontinued; and so the case would have been if, before the recent act for the abolition of fines and recoveries, they had been conveyed by either of those modes of assurance. But a surrender by the husband Surrender no alone of copyhold lands, whereof he and his wife are seised in her right, or by a tenant in tail, where the custom warrants the creation of that estate, does not operate as a discontinuance, though the latter surrender might bar the entail. A husband cannot by a conveyance operating solely at common law grant freehold lands immediately to his wife; but he may surrender copyhold lands to her use, as she Surrender to takes through the medium of the lord. (1) And if there use of wife. be a surrender by husband and wife to such uses as she shall by will appoint, she may execute the power in her husband's lifetime. (2) Execution of power by wife. It seems doubtful, however, whether husband and wife can surrender her copyhold estate to the use of her will, she being, technically speaking, incapable of making a will. (3) But the lord cannot grant to his own wife, they being in Lord cannot the estimation of law but one person. (4) The recent act for the abolition of fines and recoveries (5) does not extend to the copyholds of a married woman, the estate being an estate at law, where the objects to be effected by the 77th section could, before the passing of the act, have been effected by the wife in concurrence with her husband by surrender. With this exception, the above section authorizes a married woman in every case, except that of being tenant in tail, by deed to dispose of lands of any tenure, and money subject to be invested in the purchase of lands, and also to dispose of, release, surrender, or extinguish any estate which she (1) 4 Co. Rep. 29 b. Gilb. Ten. 220. (2) Driver v. Thompson, 4 Taunt. 294. Sug. Pow. 155. (3) Sug. Pow. 185, [6th ed.] 1 Watk. Cop. 90, [4th ed.] (5) 3 & 4 W. 4, c. 74. grant to wife. Disposition of copyholds of married wo man. alone, or she and her husband in her right, may have in any lands of any tenure, or in any such money as aforesaid, and also to release or extinguish any power vested in or limited or reserved to her in regard to any lands of any tenure, or any such money as aforesaid, or in regard to any estate in any lands of any tenure, or in any such money as aforesaid, as fully and effectually as if she were a feme sole, the husband concurring in the deed, and the same being acknowledged by her as directed by the act, and she being separately examined by the person taking the surrender. 3. Of the subject of Grant and Surrender. That which may be granted by copy of Court Roll, may be the subject of surrender. Now not only land, but whatever concerneth lands or tenements, and lieth in tenure, may be granted by copy of Court Roll, as common appendant, though not in gross, underwood, and the herbage or vesture of land. So a fair or market appendant, a piscary, and tithes when parcel of a manor, may be granted by copy. (1) There may also exist a copyhold interest in the prima tonsura, or forecrop of land in one person, and every other benefit derivable from the land in another. (2) (1) Co. Litt. 58 b. Co. Cop. s. 42. Supp. to Cop. s. 17. Gilb.Ten.332. Musgrave v. Cave, Willes, 324. 1 Watk. Cop. 40, et seq. [4th ed.] (2) Stammers v. Dixon, 7 East, 200. 4. Of the Interest created by Surrender. (1.) Of conditional Fees and Estates tail, of the Equitable, and of the Merger of Equitable Estates tail. A grant or surrender to one and the heirs of his body, Conditional without any further limitation, does not in the absence of fee. custom create an estate tail, but a fee conditional only at common law, copyholds not being within the statute de donis (1) and to prove that a limitation to one and the heirs of his body will create an estate tail, it must be shewn Estate tail. either that the custom authorizes such a limitation and a remainder to be grafted thereon, or that it authorizes the tenant to alien before issue born. (2) Where a conditional fee only is created, the tenant is unable to alien before issue born; but after that event, he has the same power over the property, as if he had the customary fee. (3) And where the legal estate cannot be limited in tail, the trust estate cannot be so limited. (4) tates tail. Before the recent act for the abolition of fines and Former modes recoveries, the modes of barring estates tail varied accord- of barring esing to the customs of the different manors. In some they were barred by forfeiture to, and regrant from the lord, in others by surrender or recovery, and in others by surrender only; and where no particular mode was prescribed by the custom, they were said to be barrable by surrender only. (5) And where a person was entitled Equitable in(1) 13 Ed. 1. c. 1. (2) Vide Gilb. Ten. 165. Co. Litt. 60 b. Co. Cop. s. 47. Supp. to Cop. s. 21. 1 Watk. Cop. 214, [4th ed.] 5 T. R. 111. 2 Ves. 601. (3) Doe v. Clark, 5 Bar. & Ald. 458. 1 Watk. Cop. 220, [4th ed.] (4) 1 Pr. Conv. 153. 1 Watk. Cop. 218, [4th ed.] (5) 2 Ves. 604. Roe v. Jeffery, 2 Maule & Selw. 92. 234, [4th ed.] 1 Watk. Cop. 220, terest in tail. |