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the mode of pleading between pure copyholds, and those of a privileged nature (denominated customary freeholds) (a), arising principally out of the circumstance of the former being held, not only secundum consuetudinem manerii, but also ad voluntatem domini, whereas the latter are held according to the custom of the manor, but not at the lord's will (b). With this exception, however (c), there would appear to be no grounds of distinction between ordinary and privileged copyholds, when the latter are held by copy of court-roll, and pass by surrender and admittance (d), although not held at the will of the lord (e).
And that it is a settled rule that the equitable fee of customary freeholds, even when it is acquired by way of resulting trust, and although the custom of the manor is not to recognise an alienation by will, or to permit any trusts to appear upon the court-rolls, is devisable (ƒ).
(a) Ante, pt. 1. pp. 605, 608. Vide also Burrell v. Dodd, 3 Bos. & Pul. 378. Leigh v. Williamson, 9 Wentw. 123.
(b) Hughs v. Harrys, Cro.Car. 229. Gale v. Noble, Carth. 432. Rogers v. Bradly, 2 Vent. 144. Hill v. Bolton, Lutw. 1171. Crouther v. Oldfeild, Ib. 125. S. C. Salk. 365. S. C. 2 Lord Raym. 1225. S. C. 6 Mod. 19. 11 Mod. 53.
(c) And see as to the writ of Right Close, and of Monstraverunt, post. tit. Ancient Demesne,' pp. 694,
(d) In many manors customary estates pass by deed or surrender, but the custom sometimes requires that the grantee should be admitted in the life-time of the grantor, which was held to be a good custom in Fenn & Mariott, Willes 430. Ante,
pt. 1. p. 30. And see Perryman's case, 5 Co. 84.
The reader is reminded that a wife is equally excluded from dower of a trust estate in privileged copyholds or customary freeholds, as in ordinary copyholds. Godwin v. Winsmore, 2 Atk. 526. Forder v. Wade, 4 Bro. C. C. 521. Ante, pt. 1. p. 93.
(e) The court of B. R. held in Doe & Danvers, 7 East 299, that a right of entry in customary freeholds, passing by surrender and admittance, but not held at the will of the lord, is not tolled by descent. And now by 3 & 4 W. 4. c. 27. § 39. no descent, discontinuance, or warranty will bar a right of entry for the covery of land.
(f) Wilson v. Dent, 3 Sim. 385. And see Wardell v. Wardell, 3 Bro. C. C. 116.
It is observable, however, that the case of Hussey v. Grills (a), is an authority that a devise of an equitable interest in customary freeholds, where there is no custom to surrender the legal interest to the use of a will, or where the customary interest is not devisable, must be attested according to the statute of frauds: And in another case (b), the court would appear to have felt a distinction, as to the relevancy of that statute, between a devise of customary lands passing by deed and admittance, and a devise of the like lands passing by surrender and admittance. But as it would seem to be a recognised principle, that a customary freeholder has no freehold interest, in the strict legal sense of that word, even when the estate passes by deed of grant or bargain and sale and admittance, the court must be presumed to have been influenced in the above case of Hussey & Grills, (supposing that case to have been rightly decided,) by the circumstance of the will alone being operative in a devise of customary freeholds, passing by deed of grant or bargain and sale and admittance, whereas the will is to be deemed declaratory only of the uses of the surrender, when lands of that tenure pass by surrender and admittance, the same as in a devise of ordinary copyholds.
This distinction is deducible from the words of Lord Hardwicke, who, in his judgment in that case, said " There is no evidence that there can be in this manor a surrender of a customary freehold to the use of a will. Agreed, there never was any such. The foundation of the determinations as to copyholds is that the party may dispose by surrender and will. As there is no method of passing the legal estate of these customary freeholds in this way, there is no reason to hold them out of the stat. of frauds: And as the legal estate is not, so is not the trust."
In the recent case of Willan v. Lancaster (c) it appeared
(a) Amb. 299. Ante, pt. 1. p.
(b) Doe v. Danvers, 7 East 299. (c) 3 Russ. 108.
that the customary freehold lands held of the manor were not devisable, but were transferred by deed and admittance, the operative words of the deed being bargain sell and surrender.' The particular lands were vested in a trustee, in trust for the testator for life, and after his decease for such purposes as he should appoint by deed, or by will or codicil, to be by him. legally executed; and the question was, whether a codicil not executed according to the statute of frauds would pass the equitable interest.
The case was argued merely with reference to the question, whether the equitable interest of a customary freehold would or would not pass by a will not executed according to the stat. of frauds. And Lord Gifford, M. R., desired that the question might be considered with reference to the construction to be put upon the words to be by him legally executed,' by which the testator might have meant executed according to the statute of frauds.' The case was afterwards argued before Sir John Copley, M. R., and the report merely states, that his Honor was of opinion, that the customary lands did not pass by the codicil.
It may be proper also to premise that I have not discovered any case in which the question has arisen, whether there may be a general occupant of customary freehold lands, but as an occupancy is for supplying a freehold (a), and as the freehold remains in the lord in privileged as well as in ordinary copyholds, the former would seem, with reference to the law of occupancy, to stand on the same footing as the latter, and to be subject to special, but not to general occupancy (b).
I have been equally unsuccessful in my endeavours to discover some judicial authority, or at least some respectable dicta, to prove the perfect accordance, or to establish a clear distinction, between privileged and ordinary copyholds, with regard to the operation of the writ of elegit, and from which
(a) Per Holt, C. J., in Smartle v. Penhallow, 1 Salk. 189.
b) Ante, pt. 1. pp. 63, 64, 108.
the latter are clearly exempt (a). The chief inducement to the decision that ordinary copyholds are not included in the statute of 13 Ed. 1. c. 18, appears to have been, the possible prejudice which the lord might sustain by the introduction of a new tenant, without his consent (b); and this principle would seem to apply equally to customary freeholds, (or privileged copyholds,) even when not held at the will of the lord, as the lord's assent to the change of tenancy, is implied in the admittance, which, (however unsubstantial the act may be considered at the present day,) is, I believe, an obligation invariably imposed upon the alienation of customary freeholds, although passing by deed of bargain and sale, or other act of assurance, not applicable to ordinary copyholds.
It may also be difficult to establish a distinction between privileged and ordinary copyholds, in the construction of the act of 13 Ed. 1. of elegit, consistent with the rule, that the freehold is never taken out of the lord, in lands of the one tenure or the other, and which would seem to exclude the sheriff from any jurisdiction over customary freeholds, equally as in the case of ordinary copyholds (c).
But the necessity of an admittance by the lord of the manor,
(a) Ante, pt. 1. pp. 60, 105. Since the last edition of this work was published, it has been suggested that customary freeholds are liable to be extended at the suit of a judgment creditor, under the writ of elegit; see Mann. Excheq. Prac. p. 43. Sed qu.? unless where the lands are not within and parcel of, but held of the manor, the freehold then being vested in the tenant, ante, p. 674 n. (a.) In p. 362, Mr. Manning states that customary freeholds in ancient demesne are extendible, for which he cites Cox & Barnsly, Hob. 47, and other authorities. And see
Martin v. Wilks, Mo. 211. 2 Inst. 397. But it is observable that in the case of lands of ancient demesne tenure, the freehold is in the tenant. See 2 Inst. 325.
(b) Ante, pt. 1. p. 99.
(c) The case of an ejectment is an exception to this rule, but it is to be recollected that an ejectment is, in principle, an action of trespass, founded on a common law title; and also that the party bringing the ejectment, must first procure admittance to the estate in question, and which he could enforce by showing a colourable right.
in order to perfect the conveyance of customary freeholds, and the absence of any actual freehold interest in the tenant, would appear to be the only grounds favourable to the opinion, that lands of customary freehold tenure, passing by deed and not held at the will of the lord, are not affected by an extent:—and the exemption is clearly not to be maintained on the ground of any right, which the tenants of such lands may have, to implead and be impleaded in the court of the lord of the manor, exclusively; for the sheriff upon an elegit, delivers only a legal and not an actual possession (a); and to obtain an actual possession the plaintiff must proceed by ejectment. A further argument to be urged against the latter ground of exemption, (and which may also be urged against the supposition of any such privilege resulting from the freehold interest never having been taken out of the lord,) is, that lands of the tenure of ancient demesne are extendible, although ancient demesne is a good plea, where the freehold is in question (b); for a tenant by elegit has but a chattel interest (c); and by this execution, neither the freehold, nor the possession, is removed (d). It must not be forgotten, however, that although the actual possession is not removed by the sheriff's entry, and delivery of possession, under an elegit, yet that the legal possession so acquired, lays the foundation of an ejectment to recover the actual possession; and also that tenants by elegit, have the same remedy by assize, as freeholders are entitled to (e).
I shall now proceed to notice the cases to which I have before adverted, deciding, as I submit, that the freehold is vested in the lord, and not in the tenant, in all customary freeholds,
(a) Saunders 69. n. 3. 2 Cru. Dig. 73. Alden's case, 5 Co. 105.
(b) Post. tit. " Ancient Demesne.” (c) Co. Lit. 42. a.
(d) Ib. Coke v. Barnsley, 1 Brownl.
(e) 2 Inst. 396. Note, the stat. of Westm. 2. c. 18, gives such tenants a writ of novel disseisin if ejected, and afterwards a writ of re-disseisin. Ib. 394-6. F. N. B. 189. I. And see Co. Lit. 154. a; and n. 11. ib.