Incidents of tenure.

Nature of

CHAPTER VII.

INCIDENTS OF COPYHOLDS (continued) AND MANORIAL

FRANCHISES.

BESIDES the incidents of tenure already described, copyholds are liable to escheat for want of heirs, to forfeitures in certain cases, and to several other minor incidents.

Escheat.

If a copyhold tenant dies intestate and without heirs, lord's right. the lord is entitled to claim the land by escheat, and the

tenure will thereby be extinguished, but the land may be granted out again to be held by copy of court roll if the lord has not destroyed its demiseable quality by the creation of a common law estate in it (a). It was formerly necessary that there should be a presentment by the homage of the death of the tenant, and that proclamations should be made for the heirs of the tenant, before the lord could enter on the land; but a presentment will now be unnecessary, as customary courts may be held and proclamations made at them without the presence of any copyhold tenants, though such proclamations do not affect the right of any person not present at the court unless notice of the proclamation has been served on him within one month (b). Where the lord takes by escheat, he holds the land subject to the freebench, if any, of the widow of the tenant, and to any lease which may have been made

(a) Co. Copyh. s. 28; French's Case, 4 Rep. 31 a.

(b) 4 & 5 Vict. c. 35, s. 86.

estate.

by the copyholder with his licence (c). A copyhold cannot escheat to the Crown (d). As escheat is grounded on the want of a tenant to perform the services due in respect of the tenement (e), there could be no escheat of an equitable Equitable estate (ƒ); and accordingly where the trusts had come to an end, and the trustee was still a tenant on the court rolls, it was held that he had a right to hold as against the lord (g). But now it is provided by the Intestates' Estates Intestates' Estates Act, Act, 1884 (h), that where a person dies after the 14th of 1884. August, 1884, without an heir, and intestate in respect of any real estate consisting of any equitable estate or interest in any corporeal hereditament, whether devised or not to trustees by the will of such person, the law of escheat shall apply in the same manner as if such estate or interest were a legal estate in a corporeal hereditament (i); and for the purposes of that Act intestacy is defined as follows, "Where any beneficial interest in the real estate of any deceased person, whether the estate or interest of such deceased person therein was legal or equitable, is, owing to the failure of the object of the devise or other circumstances happening before or after the death of such person, in whole or in part not effectually disposed of, such person shall be deemed, for the purposes of the Act, to have died intestate in respect of such part of the said beneficial interest as is ineffectually disposed of" (k).

mortgage

On the principle that it was for want of a tenant that Trust or the lord might claim by escheat, it was settled that if a estates. trustee who had been admitted without any reference to the trusts appearing on the court rolls, or a mortgagee who had been admitted on a surrender in which no condition was expressed, died intestate and without heirs, the estate

(c) Chantrell v. Randall, 1 Lev. 20; Turner v. Hodges, Hutt. 101. (d) Walker v. Denne, 2 Ves. jun. 170, 187.

(e) Att.-Gen. v. Sands, Hardr.

488.

(f) Burgess v. Wheate, 1 W. Bl. 123, 167.

(g) Gallard v. Hawkins, 27 Ch.
Div. 298.

(h) 47 & 48 Vict. c. 71.
(i) Ibid. s. 4.

(k) Ibid. s. 7.

would have escheated, and the lord would have been entitled to hold the land freed from the trust or the equity of redemption; but if the lord had assented to the trust or condition being entered on the court roll, he would have taken subject to the trust or condition, for he could not claim against his own act (1). But as injustice arose from this rule, it was provided by the Trustee Act, 1850 (m), that when any person who was seised of any lands upon any trust or by way of mortgage dies intestate and without an heir, the Court may make a vesting order, which will have the same effect as a conveyance by the heir. If the mortgagor died intestate and without heirs, and the mortgage was not merely for a term of years, the land would not escheat, but the mortgagee will hold the land freed from the equity of redemption, but subject to the debts of the mortgagor ("); but if the mortgagee demanded the money from the personal representatives, "the Court would compel the mortgagee to re-convey, not to the lord by escheat, but to the personal representatives” (o).

Where the lord takes by escheat, the estate in his hands is liable to the debts of the person whose estate has escheated (p). A mére contract to sell by the deceased tenant will not defeat the lord's right to escheat (q); but the lord's title to an escheat may be waived by his acceptance of any rent or service in such manner as will amount to a virtual admittance from a person in possession of the copyhold (»), and will be lost altogether if his claim is not made within the period fixed by the Limitation Acts (s).

(1) See Burgess v. Wheate, 1 W. Bl. 123, 167; Att.-Gen. v. Leeds (Duke of), 2 Myl. & K. 343; Gallard v. Hawkins, 27 Ch. Div. 298'; Lewin, Trusts, 8th ed. 221, 248.

(m) 13 & 14 Vict. c. 60, ss. 15, 19. (n) Beale v. Symonds, 16 Beav. 406; and see Downe (Viscount) v. Morris, 3 Hare, 394; and Evans v. Browne, 5 Beav. 114.

(0) Per Sir Thos. Clarke, M.R., in Burgess v. Wheate, 1 W. Bl. 123, 149.

(p) Hughes v. Wells, 9 Hare, 749. (q) Stephens v. Baily, Nels. Ch. Rep. 106, 107.

(r) Doe d. Tarrant v. Hellier, 3 T. R. 162, 171.

(s) 3 & 4 Will. IV. c. 27, s. 1; 37 & 38 Vict. c. 57.

ment.

Notwithstanding an enfranchisement of the land made Enfranchisesince the 16th of September, 1887, the lord is entitled, in the case of escheat for want of heirs, to the same right and interest in the land as he would have had if there had been no enfranchisement; and accordingly, in making valuations for compensation payable to the lord on any enfranchisement since that date, the valuers are not to take into account the value of escheats (†).

Forfeiture.

forfeiture.

A copyhold may be forfeited by a wrongful act done to Cause of the prejudice of the lord, or by anything which amounts to a determination of the tenancy. The forfeiture may be occasioned by waste, or the creation of an unauthorised estate, or by wilful neglect or refusal to perform the customary duties and services. All cases of forfeiture are strictissimi juris, and the courts will take care that there is the utmost accuracy in the lord's proceedings, and will remit the penalty if any irregularity is discovered (u). When the law gives the lord another remedy, as where the custom imposes a fine for an offence, the forfeiture will not be allowed (). On the same principle courts of equity have frequently relieved against forfeitures, where compensation could be made to the lord, it being possible to regard the penalty as imposed merely in terrorem, or as a security for compelling the tenant to perform his duties. Under certain circumstances the Court has given relief even in cases of voluntary waste, or refusal of services, but has sometimes put the tenant upon terms of paying the costs and repairing the damage; but the relief will be refused if the tenant should persist in committing acts of forfeiture (y).

(t) 50 & 51 Vict. c. 73, ss. 4, 5. (u) Doe d. Tarrant v. Hellier, 3 T. R. 162, 169.

(x) Paston v. Utbert, Litt. Rep. 264, 267.

(y) Peachy v. Somerset (Duke of), 1 Stra. 447; Nash v. Derby (Earl), 2 Vern. 537; Cox v. Higford, 2 Vern. 664; and generally see Vin. Abr. vi. 152, et seq.

Forfeiture for felony.

The proper person to take advantage of a forfeiture is the lord of the manor for the time being, however small his interest may be (z); and the grantee of the freehold inheritance of a copyhold is in the position of the lord of the manor, so far as forfeitures are concerned (a).

If the lord dies before any entry or seizure is made for a forfeiture, the reversioner or remainderman cannot take advantage of the forfeiture, except where the act destroys the estate (b). The lord may dispense with taking advantage of the forfeiture, either expressly or by implication, as by doing any act which requires the continued tenancy of the offender (c). The lord must enter for a forfeiture within the period allowed by the Statutes of Limitation (d).

Forfeiture for Felony.

Copyholds, until the year 1870, were forfeited to the lord by the conviction and attainder of the tenant (except as regards trust or mortgage estates) for treason or felony (e), and by special custom by conviction without attainder (ƒ). Before the lord's title could vest in him, the felony was to be presented and seizure made on his behalf (g). No forfeiture was allowed before attainder, except by special custom (h); but the attainder of an unadmitted devisee or surrenderee did not work a forfeiture (i).

(z) Meere v. Kidout, Godb. 175.
(a) East v. Harding, Cro. Eliz.

498.

(b) Co. Copyh. s. 60; Lady Montague's Case, Cro. Jac. 301; Doe d. Tarrant v. Hellier, 3 T. R. 162, 173; Doe d. Bover v. Trueman, 1 B. & Ad. 736.

(c) Co. Copyh. s. 61; Milfax v. Baker, 1 Lev. 26; Doe d. Tarrant v. Hellier, 3 T. R. 162, 171.

(d) Whitton v. Peacock, 3 Myl. & K. 325.