« SebelumnyaLanjutkan »
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 (6); 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. Martin v. Wilks, Mo. 211. 2 Inst.
Since the last edition of this work 397. But it is observable that in the was published, it has been suggested case of lands of ancient demesne that customary freeholds are liable to tenure, the freehold is in the tenant. be extended at the suit of a judg. See 2 Inst. 325. ment creditor, under the writ of (6) Ante, pt. 1. p. 99. elegit; see Mann. Excheq. Prac. p. (c) The case of an ejectment is an 43. Sed qu.? unless where the lands exception to this rule, but it is to be are not within and parcel of, but recollected that an ejectment is, in held of the manor, the freehold then principle, an action of trespass, being vested in the tenant, ante, p. founded on a common law title ; and 674 n. (a.) In p. 362, Mr. Manning also that the party bringing the states that customary freeholds in an- ejectment, must first procure admitcient demesne are extendible, for tance to the estate in question, and which he cites Cox & Barnsly, Hob. which he could enforce by showing a 47, and other authorities. And see 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.
(6) Post. tit. “ Ancient Demesne.”
(d) Ib. Coke v. Barnsley, 1 Brownl. 234.
(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. 3946. F. N. B. 189. I. And see Co. Lit. 154. a; and n. 11. ib.
whether passing by surrender, or by deed of grant or bargain and sale, and admittance (a).
In the case of Stephenson v. Hill (6), which was an action on the statute of 2 E. 6. c. 13, for the payment of tithes of corn and grain, and wherein the question was, whether the defendant could set up any prescription, which would by virtue of the statute of 31 H. 8. exempt him from payment of tithe, or (as Lord Mansfield put it) whether customary freeholders can in point of law prescribe in non decimando, Lord Mansfield and Mr. Justice Denison said, it was a settled point that the freehold is in the lord; and Lord Mansfield added, “ This is rather stronger than the case of copyholds : for copyholders had acquired a permanent estate in their lands before these persons had done so.”
The case of Doe d. Reay v. Huntington & others (c), was this :—the lord by his deed, dated subsequently to the stat. of quia emptores, 18 Ed. 1. granted and confirmed to the tenant his customary or tenant right estate (d), freed and discharged
(a) But if by the custom a feoff- ed and resolved, that in the case ment should be requisite, as well as at bar when the feoffment is presented a surrender, I apprehend that the according to the custom then it takes freehold would be considered to be effect by force of the livery before.' in the tenant. It was said argo.
in (6) 3 Burr. 1278. Stephenson v. Hill, infrà, that these (c) 4 East 271. customary estates in the north never (d) It appears by the report that pass by feoffment, but by grant and the tenement in question was one of admittance.
the customary or tenant-right estates N. B. A custom that all feoffments within the manor, and holden of the of freehold lands within the manor, lord by certain ancient customary must be presented at the court baron rents and services, descendible from has been adjudged to be reasonable. ancestor to heir according to a cusPerryman's case, 5 Co. 84. It was tomary mode, differing in some reobjected in that case that 'to say that spects from the rule of descent at the custom of the manor should divest common law, and not devisable by an estate of freehold and inheritance will, either directly or by means of a vested by solemn livery would be surrender ; but the land appears not against law.' Towhich it was answer- to have been holden at the will of
of all rents customs and services, (excepting a rent of one penny yearly, and suit of court with the service incident thereto, and all royalties, escheats, &c.) belonging to the seigniory, so far as might consist with and not be prejudicial to the immunities thereby granted ;-and Lord Ellenborough, in delivering the opinion of the Court of King's Bench upon a case reserved at the trial, in which the questions were, under what class of tenure the estate was ranged before the above grant, and secondly, the effect of that deed as it respected the tenant's right to devise the estate, gave his full sanction to the above previous decisions that in the case of customary tenantright estates, although alienable by deed of bargain and sale and admittance, the freehold is in the lord, by the following observations :-“ These customary estates known by the denomination of tenant-right are peculiar to the northern parts of England, in which border-services against Scotland were anciently performed, before the union of England and Scotland under the same sovereign. And although these appear to have
many qualities and incidents which do not properly and ordinarily belong to villenage tenure, either pure or privileged, (and out of one or other of these species of villenage all copyhold is derived,) and also have some which savour more of military tenure by escuage uncertain, which, according to Littleton, sect. 99, is knights service; and although they the lord.
likely even to be descendible, much At the end of the form of the less devisable; but the descent is pleadings in Leigh v. Williamson, (in now generally established, and pertrespass,) 9 Wentw. 129, (in which haps the devisability also in this the land was stated to be of custom- manor: and I am informed by a ary freehold tenure, descendible from gentleman of the north, that many ancestor to heir, and devisable by of these estates, to this day, are not custom) there is the following note, devisable, at least not without leave “ The books are very barren on this of the lord, and seemingly the despecies of tenure, but it certainly fendant relies upon this. If the liarose in the northern court, (coast] cense of the lord is necessary, it near Scotland, for the defence of the should be stated in the replication. borders; therefore in its creation un
“ A. Dawson." VOL. II.
seem to want some of the characteristic qualities and circumstances which are considered as distinguishing this species of tenure; viz. the being holden at the will of the lord, and also the usual evidence of title by copy of court-roll, and are alienable also, contrary to the usual mode by which copyholds are aliened, viz. by deed and admittance thereon (if indeed they could be immemorially aliened at all by the particular species of deed stated in the case, viz. a bargain and sale, which at common law could only have transferred the use); I say, notwithstanding all these anomalous circumstances, it seems to be now so far settled in courts of law that these customary tenantright estates are not freehold, but that they in effect fall within the same consideration as copyholds, that the quality of their tenure in this respect cannot properly any longer be drawn into question.” His lordship further observed, that by the deed of confirmation, the tenement had become frank fee, i. e. holden in free and common socage, and devisable by the statute of wills : that the words “ freed, &c.” amounted to a release of the services, &c. not excepted, and that the case bore a strong analogy to the tenure of ancient demesne; and to show that the customary qualities were extinguished by the deed, his lordship cited Griffith v. Clarke (a), which was the case of a release by a fine, after the statute of quia emptores, “ de om“nibus serritiis et consuetudinibus, salvis servitiis infra
scriptis, viz. pro una virgata terra 2. s. rent sect curiæ et “ relevio,” and the release was de uno messuagio et unâ virgatá terræ ; and the court held the custom of ancient demesne extinguished by the release, but that the rent, suit of court, and relief continued by the saving, as the remnant of the ancient seigniory. Lord Ellenborough also ruled, that the immediate customs of the land in question had become extinguished, and the land of course devisable, the same as any
(a) Mo. 143. And also 49 E. 3. firmation, pl. 5. 9 Co. 140. Vide, 7. Per Belknap, C. J. Bro. Abr. tit. post. tit. • Ancient Demesne,' p. Ancient Demesne, pl. 8. Ib. Con- 712.