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whether passing by surrender, or by deed of grant or bargain and sale, and admittance (a).
In the case of Stephenson v. Hill (b), 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 feoffment should be requisite, as well as a surrender, I apprehend that the freehold would be considered to be in the tenant. It was said argo. in Stephenson v. Hill, infrà, that these customary estates in the north never pass by feoffment, but by grant and admittance.
N. B. A custom that all feoffments of freehold lands within the manor, must be presented at the court baron has been adjudged to be reasonable. Perryman's case, 5 Co. 84. It was objected in that case that to say that the custom of the manor should divest an estate of freehold and inheritance vested by solemn livery would be against law.' To which it was answer
ed and resolved, that in the case
(c) 4 East 271.
(d) It appears by the report that the tenement in question was one of the customary or tenant-right estates within the manor, and holden of the lord by certain ancient customary rents and services, descendible from ancestor to heir according to a customary mode, differing in some respects from the rule of descent at common law, and not devisable by will, either directly or by means of a surrender; but the land appears not 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
At the end of the form of the pleadings in Leigh v. Williamson, (in trespass,) 9 Wentw. 129, (in which the land was stated to be of customary freehold tenure, descendible from ancestor to heir, and devisable by custom) there is the following note, "The books are very barren on this species of tenure, but it certainly arose in the northern court, [coast] near Scotland, for the defence of the borders; therefore in its creation un
likely even to be descendible, much
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 servitiis et consuetudinibus, salvis servitiis infra scriptis, viz. pro uná virgatá terræ 2. s. rent sect curiæ et relevio," and the release was de uno messuagio et uná virgatá terra; 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. 7. Per Belknap, C. J. Bro. Abr. tit. Ancient Demesne, pl. 8. Ib. Con
firmation, pl. 5. 9 Co. 140. Vide, post. tit. Ancient Demesne,' p. 712.
other socage land, under the statute of wills, and consequently that the defendants, who were devisees, were entitled to it under the devise made to them.
In the manor of Irthington in Cumberland, and other the manors parcel of the barony of Gilsland, the estates pass by customary conveyance of bargain and sale, the operative words being grant bargain sell alien and surrender all, &c. the customary property of, &c. held of the lord as parcel of the manor of A., parcel of the barony of Gilsland, habendum to the alienee his heirs and assigns for ever, at the will of the lord, according to the custom of the manor; with the license of the lord indorsed thereon by the steward. And in all these manors the freehold of the customary tenements is in the lord (a).
Another case of peculiar interest connected with this subject is Doe d. Cook & Wife v. Danvers (b). The estate appeared, by a case reserved at the trial, of ejectment, for the opinion of the Court of King's Bench, to be holden of the manor of Stebunheath, otherwise Stepney, in Middlesex, by copy of court-roll, (but not ad voluntatem domini,) and to pass by surrender and admittance, and to have been leased under
(a) Doe d. Earl of Carlisle v. Towns, 2 Barn. & Adolp. 585. A court is held twice a year for the manors within the above barony, at which the tenants are called by the roll, and proclamations are made in case of death or alienation, for the heirs or new tenants to appear, and on appearance the names of such tenants are entered on a roll by the steward, who receives a fee of one shilling from each tenant, and a further fee of five shillings for the indorsement of a license of alienation. In the above case of Doe & Towns proclamation had been made for the defendant to be admitted to two customary
a previous license from the lord; and it also appeared to have. been surrendered by the late owner, to the uses of her will. And the court ruled, that it being so circumstanced, whether held at the will of the lord or not, the freehold was in the lord and not in the tenant, and that with respect to all the questions arising in the case, it was to be taken and considered as copyhold.
The court had entertained a doubt in the above case how far the will could be considered a will in writing under the terms of the surrender, and whether under the 7th and 9th sections of the statute of frauds, the will must not be signed by the party, as thrown out by Lord Kenyon in Doe d. Tempest v. Dancer (1796), and according to what is reported to have been said by Lord Hardwicke, in Tufnell & Page," that "when such will was in writing, and signed by the party, that
was sufficient." But they now expressed themselves satisfied, that a will to direct the uses of a surrender of a copyhold or of a customary estate passing by surrender, was not within the statute of frauds, and need not be signed, unless such signature be required by the terms of the surrender to the uses of the will; and added, that although they thought it would have been the sounder construction to have holden, that copyholds were comprised in the general words of the 5th and 6th sections of the act," all devises and bequests of any lands " or tenements;" yet it was a settled point, that the lands pass by the surrender and will taken together, as if the devisee's name was inserted in the surrender, and that they do not pass by the will that the 7th section, requiring declarations or mentions of trusts of land to be in writing, signed by the party enabled to declare the trust, or by his will; and the 9th section requiring all grants and assignments of trusts to be also in writing, signed by the party granting or assigning, or by such last will or devise, did not extend to surrenders of copyhold or customary estates, but referred only to such will as the statute recognized, viz. a will attested by three or four wit