1801. DoE, on the Demise of JANE SHEWEN, Widow, Friday, against WROOT and Others. IN ejectment for a moiety of several copyhold estates in Sutton St. Mary, Sutton St. Nicholas, and Sutton St. James, copyhold of the manor of Sutton Holland, and in Gedney, copyhold of the manor of Gedney Pawlett, all in the county of Lincoln, a verdict was found for the plaintiff at Lincoln Lent assizes 1803, before Graham B, subject to the opinion of this Court on the following case: was his May 4th. Till admittance of the a copyhold upon mortgage, the sur. renderor continues the le surrenderee of gal tenant, and he cannot devise the equity of redemption, even after the surrender made, without a new surren der to the use of his will; but the legal estate, which on his death his heir at law, will car of ry the equity of redemption also to the At a general court baron, holden for the manor of Sutton Holland, on the 22d of May 1766, Anthony Jones, Esq. admitted as only brother and heir of Richard Jones, Esq. deceased, tenant to five messuages and 101 A. 3 R. 9 P. of land, lying in the three Suttons, holden of the said manor by copy of court roll, to hold to the said A. Jones, his heirs and assigns, for ever, according to the custom of the said manor. At a special court baron holden for the said manor on the 10th of February 1767, A. Jones duly surrendered the said descends to messuages and lands to the use of T. Alderson, Esq., heirs and assigns, conditioned to be void on repayment the principal mortgage sum of 10007., with interest, on the 16th of June then next. Afterwards, at the same court, heir in respect A. Jones surrendered the said messuages, lands, &c. to the to the mort. use of his will. T. Alderson was never admitted on the above gage. conditional surrender; but A. Jones continued in possession [133] of the said estates and receipt of the rents and profits until his death, and died intestate, leaving Jane Jones his sister and heir, who was, at a court holden for the manor on the 4th of October 1770, duly admitted to the said estates, to hold to her and her heirs, &c. Ou the 2d of October 1770, T. Alderson dúly acknowledged satisfaction on the above conditional surrender, which acknowledgment was enrolled at the said court on the 23d of May, 1771. On the 10th of October 1770, Jane Jones duly surrendered all her said messuages, lands, &c. to the use of J. F., S. B., and R. F., executors of W. Langley, and their heirs, &c. upon condition to be void on repayment to them of 4000., with interest, on the 10th of April following; which surrender was duly presented on the 23d of May 1771; and at a court 1804. DOE d. SHEWEN against WROOT. [134] baron, holden on the 23d of May 1771, Jane Jones surrendered all her said messuages, lands, &c., to the use of her will. Langley's executors were never admitted on the above conditional surrender; but Jane Jones contigped in possession of the said estates and receipt of the rents and profits until her death, and she died intestate, leaving Gryffyd Price, Esq. her heir; who, at a court holden on the 31st of May 1787, was accordingly admitted tenant, to hold to him, his heirs, &c. Gryffyd Price, by a codicil to his will duly executed, and dated the 17th of April 1787, charged the above copyholds with an annuity of 2007. to his wife for life, and, subject thereto, he devised all the said real estates so descended, and the trust and equity of redemption of such parts thereof as were then in mortgage, or wherein he stood seised of an equitable estate only, of what tenure or nature soever the same might consist, unto his cousin John Llewellyn in fee; and afterwards died, leaving the said John Llewellyn and Jane Shewen, the lessor of the plaintiff, his cousins and heirs at law. At a manor court holden on the 27th of June 1788, John Llewellyn was admitted under the said codicil of Gryffyd Price to the above messuages and lands, to hold to him, his heirs and assigns. At a manor court holden on the 19th of May 1796, was enrolled an acknowledgment of satisfaction, dated the 9th of April 1796, from R. F. the surviving executor of W. Langley, and from W. Langley his son and residuary legatee, on the above surrender, made the 10th of October 1770. In the 28th Gev. 3, an act passed for dividing and enclosing the commons of Long Sutton, comprising the three Suttons; and the commissioners, by their award, dated 9th of January 1790, allotted to John Llewellyn, in respeet to the above five copyhold messuages, and in lieu of the rights of cominon, 78 A. 3 R. 19 P. of land in Sutton St. Mary. The act contains the usual clause that the commissioners are not to determine on titles. At a general court baron, holden for the manor of Gedney Paulett, on the 1st of October 1739, Jane, the wife of the Rev. A. Jones, clerk, was admitted as daughter and heir of Jane Griffith, widow, deceased, to 10 acres of land in Gedney, to hold to her, her heirs, &c. And at the same court was presented a surrender made by A. Jones and Jane his wife, on the 27th of July then last, of the said 10 acres in Gedney, to the use of them for their lives and the life of : law 1804. Doɛ d. SARWEN against WROOT [135] [136] 1801. DoE d. SHEWEN against WROOT. law of Gryffyd Price, the same not having been surrendered by the said Gryffyd Price to the use of his will? or, Whether the said Gryffyd Price's interest therein was not an equitable estate only, and as such passed by his will without such surrender? Balguy, for the lessor of the plaintiff, contended that Gryffyd Price had a legal and not an equitable estate only in the copyholds in question; and he not having surrendered to the use of his will, the estates could not pass to Iris devisee. Where one is in legal seisin as tenant of copyhold Jands, and, by what is called a will, appoints those lands to the use of another, he must surrender to the use of his will. In Coke's Copyh. s. 39, it is said, "a surrender (where by a subsequent admittance the grant is to receive its perfection and confirmation) is rather a manifesting of the grantor's intention than of passing away any interest in the possession ; for till admittance the lord taketh notice of the grantor as his tenant, and he shall receive the profits of the land to his own use, and shall discharge all services due to the lord:" but he cannot pass away the land to any other, or subject it to any other incumbrance than it was subject to at the time of the surrender. Neither in the grantee is any manner of interest invested before admittance; for if he enter, he is a trespasser, &c.; and if he surrender to the use of another, this surrender is merely void, and by no matter er post facto can be confirmed." And he also referred to Periy v. Whitehead (a), Kenebel v. Scrafton (b), and to the follow[137] ing MS. case: ing MS. case: "Floyd v. Aldridge and Willis, 20th Nov. 1777. In 1772, the testator mortgaged the copyhold in fee, and surrendered to the mortgagee; but the latter was not admitted. The money was not paid at the time. The testater made his will in 1774, and devised the estate, without a surrender, to the use of his will; and died in 1775. The devisee brought this bill to redeem, making the heir a party. Sir T. Sewell, Master of the Rolls, dismissed the bill, saying, that the plaintiff had no interest in the copyhold in practice or otherwise. If the mortgagee have not the legal estate, there is no equity of redemption, The legal estate remains in the surrenderor till admittance of the sur (a) 6 Ves. jun. 544. (b) 8 Ves. jun. 30. renderee, renderee. After the first surrender, before admittance, he is tenant to the lord, and may therefore surrender to the use of his will. A second cannot prejudice a first surrender. When the first surrenderee comes in, he will be admitted. A mortgagee is seldom admitted: the mortgage is discharged by an entry on the court rolls. All remains in the mortgagor; no fine, no change of tenant, &c. As he might have made a surrender to the use of his will without prejudice to the mortgagee, he ought to have done it; and the estate cannot pass at law; and equity will not assist a volunteer against the heir." The Court asked the defendant's counsel where the difficulty was? For till admittance the legal estate continues in the surrenderor, and descends to his heir, if it be not devised, and a surrender made to the use of the will. Reader, contrà, admitted that till admittance of the surrenderee the legal estate remains in the surrenderor, so as to subject him to all the services due to the lord: but he meant to have argued, that he had not any beneficial alienable estate in him after the surrender, and could not make any new disposition of the land without satisfaction of the surrender being first entered on the court roll of the manor; and the admittance of the surrenderee at any time afterwards, would certainly relate back to the time of the surrender. Therefore, as to all but the lord the surrenderor seems to have only such equitable right as he had reserved to himself by the terms of the surrender; and therefore the equity of redemption might pass by the will, without a surrender to the use of it which surrender, pending the former unsatisfied surrender, seems to be useless. Or taking him to have the legal estate, yet holding it merely as a trustee, it would descend to his heir as a bare trust; which could not be set up against the cestuy que trust, who claimed under the will. He admitted, however, the application of the cases of Kenebel v. Scrafton, and Floyd v. Aldridge, against his argument. Lord ELLENBOROUGH, C. J. We can only look to the legal estate, and that is clearly not in the devisees, but in the heir at law of the surrenderor; and if the devisees have an equitable interest, they must claim it elsewhere, and not in a court af law. For as to the doctrine that the legal estate cannot 1804. DoE d. SHEWEN against WROOT. [138] |