Copyhold Grants take place of many other Estates. Cham v. Dover, 1 Leon. 16. 4 Rep. 24 a. 8 Rep. 63 b. Co. Cop. 34. 1 Inst. 58 b. n. 6. Sands v. 2 Leon. 109. cupant of a copyhold estate, the lord upon his death would have his heriot custom, and also the land. So that it would be no inconvenience, though the lord had no heriot upon the death of the other two, because he would have the land itself. The Court was unanimously of opinion that the grant was good. 31. As copyhold grants derive their effect from the custom of the manor, and not from the estate of the lord, they are considered as paramount to, and will take place of, many other titles, which are prior to them in point of time. 32. A lord of a manor granted copyhold lands for three lives, and afterwards married. The lives determined during the coverture. The lord entered upon those lands, and kept them in his own hands for some time; he then granted them out again by copy, and died. The wife of the lord claimed dower. It was resolved that the copyholder should hold the lands discharged of dower; because he was in by the custom, which was paramount to the title of dower. 33. Lord Coke says, if the heir, after the death of the ancestor, and before an assignment of dower to the widow, had granted lands by copy, the widow might avoid these grants; because instantly upon. the death of the husband, her title to dower was complete, and nothing more was wanting to the confirmation of her interest. 34. Voluntary grants of copyholds will also take place of any prior charges or incumbrances created by the lord, who makes such grants. 35. The Earl of Westmoreland being seised in fee of the manor of Kennington, granted a rent-charge to Sir W. Cordell for life. He afterwards made a feoffment of the manor to Sir John Clifton, who made a voluntary grant of a copyhold to one Sands for life, according to the custom of the manor, the same being an ancient copyhold. The rent-charge being in arrear, a distress was made on the copyhold granted to Sands. After great difference of opinion, it seems 3 Leon. 59. to have been finally settled that the copyhold was Dyer, 270. not chargeable; because the estate of the copyholder 208. was derived from the custom, which was paramount 202. to the charge. 2 Brown. Gilb. Ten. 36. The same point is laid down by Lord Coke, Co. Cop. § 34. who says, if the lord of a manor acknowledges a statute, and then grants lands by copy, and after the manor is delivered to the cognizee in extent, the grant by copy cannot by this be impeached. 37. Although, by an entry for a condition broken, prior estates and incumbrances are in general defeated; yet, copyhold grants form an exception, of which an account will be given hereafter. Copyholders subject to Fealty, &c. Lit. § 84, 132. 1 Inst. 63 a. Co. Sup. § 10. BY SECTION 1. Y the general custom of all manors, several services are required to be done by copyholders to their lords. The first of these is fealty. Lord Coke says, the doing fealty by a copyholder proves that so long as he observes the customs of the manor, and performs his services, he has a fixed estate. For tenant at will, that may be put out at pleasure, shall not do fealty. The taking of the oath of fealty is now always respited. 2. Suit of court is another service to which all copyholders are bound; for otherwise it would be impossible for the lord to hold a copyhold court; every copyholder is therefore obliged to attend the lord's court, and to be sworn of the homage. 3. In many manors copyholders are also liable, by particular custom, to the payment of rent-service, rents of assise and reliefs; and to the performance of a variety of services. Estovers. 4. It was resolved in 8 Ja. I. that every copy- Entitled to holder may of common right, and as a thing incident Heydon to the grant, take housebote, hedgebote, and plough- v. Smith, 13 Rep. 68. bote, upon his copyhold. This right may however be restrained by custom; namely, that the copyholder shall not take it, unless by assignment of the lord, or his bailiff. The lord cannot therefore cut down all the timber trees on a copyhold estate; but must leave sufficient for the reparation of the houses, and for ploughbote, &c. v. 1 Ld. Raym. 5. A copyholder brought an action of trespass Ashmead against the lord of the manor for cutting down trees V. Ranger, on his copyhold, alleging a custom within the manor 551. that every copyholder for life, &c. had used to have all timber trees growing upon his land for the reparation of houses; and that all the timber trees growing upon the said lands were not sufficient for the reparations, &c. The whole Court were clearly of opinion that judgement ought to be given for the copyholder, because it appeared he had not enough to repair without those trees; therefore judgement could not be given for the defendant without overthrowing the case of Heydon v. Smith. And Lord Chief Justice Holt said, that a copyholder holds the trees by copy of court-roll, as well as the land; therefore it seemed to him that the lord could not cut the trees growing upon the copyhold. That Cro. Eliz. 361. says, the copyholder might lop the trees without a special custom, which shewed that the copyholder had a special property in them. Sandford v. Stevens, This judgement was affirmed in the Exchequer 1 Salk. 638. Chamber, and reversed in the House of Lords*. 6. Where the custom of the manor is, that the 3 Buls. 282. copyholder shall employ the timber cut down in the reparation of his tenements, yet as to the tops and bark, which cannot be employed in repairs, he may sell them towards defraying the charges of the repa Ayray v. rations. 7. The Court of Chancery will direct a commisBillingham, sion to set out sufficient timber and wood for the Finch, 199. copyholder, for all manner of botes and estovers, according to the custom used within the manor; and the rest for the use of the lord. But cannot commit Glascock's case, 4 Leon. 238. Denn v. Johnson, Rolls v. Mason, 8. A copyholder cannot commit any kind of waste, unless there is a particular custom to warrant it, for the timber growing on copyhold estates is, by the general custom of most manors, the property of the lord, who may cut it down; provided he leaves a sufficient quantity for the repairs of the copyhold. 9. A copyholder in fee may however, by the particular custom of a manor, have a right to cut down timber trees growing on his copyhold, and to sell them 10 East, 206. at his pleasure, which has been adjudged to be a good custom. It has also been held, that where a Brownl. 132. copyholder for life had a power of nominating his successor, a custom enabling him to fell timber was good; because he was quasi a copyholder in fee. Rockey v. Huggins, Cro. Car. 220. 10. A custom that a copyholder for life may cut down timber is unreasonable and void; for it is a destruction * The printed case in this appeal is in Mr. Serjeant Hill's Collection of Cases in the House of Lords, (now in Lincoln's Inn Library), on the back of which is written by Lord Chief Baron Ward-"This judgement was reversed by eleven against ten lords, and against the opinion of all the judges of England." |