18. A lord of a manor granted the stewardship Blewitt's thereof by deed to W. S. for life. The lord was case, Ley. 47. afterwards found a lunatic, and his estate committed to the care of certain persons. Resolved, that the committees could not grant copyholds, as they had no estate in the manor. But the lunatic, by his steward, might grant copyholds, according to the custom. It was however ordered, that the steward should grant none, without the privity of the committees. Grants may § 35. 19. All persons who are capable of taking by grant To whom at common law, are also capable of taking grants of be made. copyholds, according to the custom. An infant, a Co. Cop. person of nonsane memory, an idiot, a lunatic, an outlaw, or an excommunicated person, may also be grantees of a copyhold. 20. A lord of a manor cannot make a copyhold grant immediately to his wife. v. Pennant, 21. The Rev. W. Symes being rector and lord of Firebrass the Manor of Compton Martin, in the county of 2 Wils. R. Somerset, the premises in question being parcel of 254. the said manor, held by copy of court-roll, fell into the hands of the said rector by the death of the last tenant, and he demised the same to his wife, to hold to her and two other persons for their lives. It did not appear that there was any custom in this or any other manor, for a lord to grant lands by copy of court-roll to his wife immediately, without the intervention of a third person. The Court said, that as this was a provision by a husband for his wife, they would be glad, if possible, to get over that maxim of law, that a husband and wife are one person, therefore could not grant lands to one another. So, where there was no particular custom in a manor, the common law must take place. The Custom must be observed. This was an original and voluntary grant by the husband to his wife, who could not by law take immediately from him, any more than a monk, who was dead in law, and considered as no person. So here was no person to take, for the wife and husband were only one person. They were dealing with a fundamental maxim of the common law, and might as well repeal the first section of Littleton, as determine this grant from the husband immediately to his wife to be good, where there was not so much as the shadow of a person intervening. The Court determined, reluctantly, that the grant was void. 22. In all voluntary grants of copyholds, the custom of the manor must be strictly pursued. Lord Co.Cop. § 41. Coke says, that though it is in the lord's power to keep the land in his own hands, or to dispose of it at his pleasure; yet, because in disposing of it he is bound to observe the custom precisely in every point, and can neither in estate or tenure bring in any alteration, in this respect the law accounts him custom's instrument. Ten. 198. 23. Lord Chief Baron Gilbert has observed on this passage, that the reason of it seems to be, because there is nothing but custom to warrant the grant by copy, which ought therefore to be strictly pursued, as to the estates, customs, services, and tenures; or else it is not the estate that was granted before. Yet if there be a copyholder in fee, it seems the lord may release part of the services, and not do any prejudice to the copyholder's estate; for there is an estate in being, that appears to be the old estate. But when the lord grants a new estate by copy, since it is an estate against common right, and warranted only by the custom, that must be strictly pursued to bind the heir. 24. So strict is the law in this respect, says the Ten. 199. same author, that if the rent be reserved in silver, where it anciently was in gold; or payable at two feasts, where anciently it was payable at one; or if two copyholds escheat, one usually demised for 20 shillings and the other for 10 shillings, and the lord demises both for 30 shillings; it is not good. v. Tedd, 25. With respect to the estate which the lord may 1 Inst. 52 b. grant, it has been resolved in many cases, that a custom enabling the lord to grant greater estates, will also enable him to grant lesser ones. Thus Gravenor where the custom of the manor was that copyholds 4 Rep. 23 a. might be granted in fee simple; a grant to one and his heirs of his body was held to be good. For whether it was a fee simple conditional, or an estate tail; it was within the custom. So the lord might grant for life, or for years, by the same custom; for an estate in fee simple included all. Barnes, 1 Roll. Ab. 26. The custom of a manor was to grant copyholds Stanton v. in fee or for life solummodo ea capienti extra manus Cro. Eliz. domini. A grant was made to one for life, remainder 373. in tail, remainder in fee. It was objected, that it 511. ought to be an immediate taking, therefore the remainder was void; also that the custom did not warrant any estate but for life, and in fee. The Court resolved, that the grant was good enough; and that the custom that it should be granted solummodo ea capienti was void. 1 Leon. 55. 27. If customary land has been always granted in Kemp v. fee, and upon an escheat the lord grants it for life, Carter, it will be good; for the custom which enables him to grant in fee, will enable him to grant for life. After the death of the grantee for life, the lord may grant the same in fee; for the grant for life was no interruption of the custom. Ven v. 1 Roll. Ab. Downs v. Smartle v. 6 Mod. 63. 28. If the custom of the manor be, that copyholds may be granted for three lives, an estate may be granted to three persons, for the lives of two; for this is not a greater estate than for three lives. 29. It was found by special verdict, that the land was ancient copyhold, demisable for one or two lives; that it was granted by copy to J. Downes, the husband of the plaintiff, habendum to him for life, and to the plaintiff durante viduitate sua. The question was, if this were warranted by the custom, for the wife's estate, for it was no absolute, but a limited estate. All the justices held, without any argument, that it was good; for when the custom warranted the greater estate for life to be made, it warranted the lesser estate; especially here, because this was also an estate for life, but limited, and as it were conditional. 30. By the custom of the manor of Tregoar in Cornwall, customary lands are demisable by copy of court-roll, to two or three persons, for term of their lives, and the life of the longest liver of them, habendum successivè sicut nominantur in charta, &c. et non aliter and the person first named in the grant enjoys the tenements to him alone during his life, and so does the second and third; and the lord is entitled to a heriot of every such person succesively dying seised. The lord granted the tenements in question to one Thomas Norton and his assigns, habendum to him and his assigns, for the lives of J. P., W. W., and of the said T. Norton, and of the longer liver of them successive. The question was, whether this grant was warranted by the custom. It was contended that it was void in toto, not being pursuant to the custom; for the grant was to Thomas Norton and his assigns, habendum for his own life, and the lives of J. P. and W. W., which varied from : the custom; and though the grant was of an inferior interest than was allowed by the custom, yet it being prejudicial to the lord, in respect of his tenure, and of his services, the custom would not warrant it. In this case T. Norton was tenant for his own life, and the lives of J. P. and W. W.; for they were not named to take an interest, but only added by way of limitation of estate; so that upon the death of T. Norton, if either of the two other lives were in being, there would be an occupant of the copyhold, which would be an injury to the lord, when a stranger would have power to come in without his consent. Lord Chief Justice Holt said, the custom consisted of three parts 1. As to the constitution of the estate granted, which must be by copy of court-roll. 2. As to the extent of the estate, which must not be above three lives. 3. As to the manner of the estate, which was different from the constitution of the law, by the operation of the custom; viz. to two or three, habendum succesivè sicut nominantur. When a custom enabled the lord to grant for three lives, he could grant for one life, for it was within the custom. The cases cited in support of the grant were in point. Where the custom was to grant in fee, yet the lord might grant to one for life, with a remainder to another in tail, as in the case of Stanton v. Barnes; and it was good, ante § 26. though the custom was to grant an entire estate in fee simple. So where the custom was to grant for life, a grant durante viduitate was good; as in the case of Downes v. Hopkins, though it had a different ante § 29. determination; because it was a lesser estate, and so within the custom. Here the grant was only to T.. Norton during his own life, and the lives of the other two; the consequence of which was, that if T. N. died living the cestuis que vie, since there could be no oc |