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decided by a recent case, where a surrender had been made to such uses as A. should appoint, with remainder to A. in fee; and A., in exercise of the power appointed to B. in fee; and it was held that B. took as if named in the surrender, and might claim to be admitted without the admission of A. being required. (1)
(9.) Of Conditional Surrenders by way of Mortgage:
herein as to the Admission and Non-admission
Copyholds are frequently covenanted to be surrendered, Surrender by
way of morta and sometimes actually surrendered as a security for money gage. ·lent, subject to a condition for 'making the surrender void, if the money be repaid at a given time. (2)
If the surrenderee has been admitted; and the condition Surrenderee complied with, the surrenderor will be in as of his old estate; but should it have been broken, as is nearly always the case, then the estate will have become absolute in the surrenderee, the surrenderor having an equity of redemption only, and his re-admittance will be necessary: (3) and Equity of rethe equity of redemption is an interest that may be re- de leased by deed to the 'admitted surrenderee, (4) and might have been devised by will, even before the recent statute for the amendment of the laws with respect to wills. (5)
(1) Rex v. Lord of Manor of Oundle, 1 Adol. & El. 283.
Surrenderee not admitted.
Caution to be observed by conditional surrenderee.
A surrenderee who has not been admitted of course takes no legal estate, and on the mortgage being discharged, an entry to that effect is made in the margin of the court rolls. But a mortgagee of copyholds may, before admittance, file a bill of foreclosure after the condition is broken. (1)
If one seised ex parte materná surrender his copyhold by way of mortgage, and the mortgagee be admitted, and there be subsequently a re-surrender to the mortgagor in fee, the line of descent will be broken, and the heir ex parte paternâ, become entitled. (2)
A person advancing money on the security of copyhold property, may incur a risk which it requires some circumspection to guard against : for where a conditional surrender was made out of court, and presented for enrolment, but not actually enrolled, and no time was limited by the custom for presenting surrenders made out of court, and afterwards another surrender by way of mortgage was made, which was presented and enrolled, and upon which admittance was taken; and subsequently the first surrender was again presented, and admittance had thereon; it having been decided that the legal estate was acquired under the first surrender, the Court of Chancery refused to postpone the first incumbrancer to the second, though the court rolls had been searched for incumbrancés previously to the money being paid on the second surrender, and none had been found. (3) In strictness, therefore, it is incumbent on a mortgagee of copyhold property, not only to search the court rolls for incumbrances, but also to inform himself what the custom of the particular manor respecting the presentment of surrenders made out of court is.
A security resting on a mere covenant to surrender,
Security by way of cove
(1) 2 Atk. 101.
(3) Horlock v. Priestley and Wife, 2 Sim. 75.
But qu. the validity of the
unless entered on the court rolls, cannot be deemed an nant to sur
render. eligible one, as a subsequent mortgagee of the same property without notice, and acquiring the legal estate, would in equity be preferred to the first incumbrancer; for where there are two persons whose equities are equal, he that hath the legal estate will be preferred.(1).
The covenantee might also, previously to the recent Forfeiture by statute of 4 & 5 W. 4, c. 23, respecting escheat and for-com
renderor. feiture, (2) have been in other respects seriously prejudiced: for if a copyholder had covenanted to surrender by way of mortgage, and afterwards committed a forfeiture of the copyhold before the admission of the covenantee, the latter would have lost the benefit of his security, the covenantor being tenant for all purposes of service until the admission of the covenantee, and capable therefore of committing a forfeiture.(3)
An equitable mortgage may be effected as well of copy- Equitable hold property, by a deposit of the copies of court roll, as of mortgage by
ll, as of deposit of cofreehold property by a deposit of title deeds. (4) . pies of court
roll. But a depositee of copies of court roll by way of equitable mortgage, will be postponed to a subsequent incumbrancer without notice, and who acquired the legal estate in the property: and a deposit of title deeds after a voluntary settlement, will not prevail at law against the settlement.(5)
If, however, a person lend money on the security of Postponement copyhold property, taking a surrender of the same, and be sur
by way of procuring his admission thereto, but having such knowledge mortgage. of the affairs of the borrower, as will amount to constructive notice that he has parted with his title deeds, the lender, notwithstanding his acquisition of the legal estate, and though he meet with no incumbrance on searching the
(1) Oxwick v. Plumer, 5 Bac. Ab. 43.
court rolls, will in equity be postponed to a depositee of
the deeds by way of equitable mortgage. (1) Searching
In Pearce v. Newlin, (2) Sir J. Leach when V. C. said, court rolls for
the court rolls are the title deeds of copyholds, and that a incumbrances.
purchaser is affected with notice of the contents of court rolls, as far back as a search is necessary for the security of the title. But this, Sir E. Sugden has observed, does not accord with the general rule as to judgments, registered deeds, and the like, and would lead to great inconvenience in practice. (3) A cautious mortgagee or purchaser would not however think of dispensing with a search of the court
rolls. Registry not It'is'observable that the registry of a deed does not of notice.
itself amount to notice. (4) Lien for pur- It may be added, that the equitable doctrine of lien for chase-money unpaid.
purchase-money unpaid, extends as well to copyhold, as
to freehold property. (5) " Depositor of Where an equitable mortgage is effected by a deposit of
title deeds, and there is no contract that the deeds shall allowed six months' notice be deposited as a security until a legal mortgage can be
prepared, a Court of Equity, on a bill filed by the depositee, will decree a sale of the property to which the deeds relatê, but the depositor will be allowed six months' notice to redeem. (6)
'i i vitit 1
5. Of the Surrenderee : herein of Surrender to Per
son not in esse; of the Interest of Surrenderee
person not in esse.
As a general position it may be considered, that any Surrenderee. person capable of being a grantee of freehold, may be a surrenderee of copyhold property. But it seems that neither corporations nor aliens can take by copy. (1)
A surrender may, it is said, be made to a person, though Surrender to not in esse at the time, provided he be so when the admission takes place; so that if there be a surrender to the use of him that shall be the heir of A., or to the use of A.'s next child, or his next wife, though A. have no heir, child, nor wife at the time, yet upon his afterwards having such, admission may be compelled according to the surrender; in which respect, therefore, a surrender differs from the rule applicable in the like case to a grant at common law. (2)
This state of the law applicable to a surrender, afforded an argument to those who contended that there might be a surrender to a future use. As the person in whose favour a surrender is made No legal in
terest in surtakes no legal interest until admittance, such interest remains in the surrenderor. (3) The surrenderee cannot til admittance. therefore surrender, nor commit a forfeiture before admittance ;(4) but having a good title in equity, he may make the copyhold the subject of contract before admittance, Surrendere
before admitand might have devised it before admittance, even previ- tance might
(1) 1 Watk. Cop. 37, 38, 301, [4th ed.]