Settlement of copyholds.

time of admittance, the reason being that "a surrender is a thing executory which is executed by the subsequent admittance, and nothing at all is invested in the grantee before the lord hath admitted him according to the surrender; and therefore, if at the time of the admittance the grantee be in rerum naturâ, and able to take, that will serve" (d). Even under the old law a married woman might receive a copyhold estate by surrender from her husband "because she cometh in not immediately by him, but by mediate means, viz., by the admittance of the lord according to the surrender" (e). For the same reason, a married woman who is a copyholder may surrender to the use of her husband (ƒ), and any copyholder may surrender to the use of himself and another person. And the estate may be limited to such uses as a certain person may appoint, or otherwise to springing, shifting, and executory uses the lord, however, as above mentioned, being at liberty to decline a surrender which might have the effect of shifting the tenancy without his assent (g). But it has been held that where a lord accepts a surrender which refers to the trusts of an indenture, and admits a tenant in accordance with the terms of the surrender, he is to be considered as consenting to these trusts, and is bound by them upon the death of the trustee without an heir (). There is no necessity, however, to specify the uses of a surrender on the court rolls. It is sufficient if there is an endorsement of the uses on the surrender by the steward (i).

When copyholds are included in a settlement, the trusts are in general declared by a separate deed, and limited to follow the uses of the freeholds (if any) which are com

(d) Co. Copyh. s. 35.
(e) Ibid.

(f) Driver d. Berry v. Thompson,
4 Taunt. 294.

(g) See Boddington v. Abernethy, 5 B. & C. 776; Rex v. Oundle Manor

(Lord of), 1 A. & E. 283; Cuthbert v. Lempriere, 3 M. & S. 158.

(h) Weaver v. Maule, 2 R. & M. 97.

(i) Car v. Ellison, 3 Atk. 73.

prised in the same settlement, so far as the rules of law and equity (having regard to the differences of tenure) will permit. Where there is no estate vested in trustees, the uses will be specified in the surrender, regard being had to the rule that the lord is not bound to accept a conveyance prejudicial to himself. But in some manors the custom authorises a declaration of trusts in the surrender (). By the Settled Land Act, 1882 (7), it is provided that where copyhold or customary land is acquired by purchase, or in exchange, or on partition by the trustees of a settlement, and is to be made subject to the settlement, it is to be conveyed to and vested in the trustees of the settlement on the trusts, and subject to the powers and provisions, which under the settlement are subsisting with respect to the settled land. This direction as to vesting the copyholds in the trustees upon trust is, it is said, to avoid all questions as to the possibility of actually conveying the copyholds to the uses declared of the freeholds; for as copyholds are not within the Statute of Uses, successive legal estates in copyholds can only be raised by surrender to uses, and not by merely declaring the uses upon the conveyance (m).

If the copyhold is surrendered to charitable uses the Charitable trusts will be specified in a separate deed and not noticed uses. in the surrender, unless such notice is allowed by the custom. The deed must be made in the manner prescribed by the Mortmain and Charitable Uses Act, 1888 (n), and must be enrolled in the Central Office of the Supreme Court of Judicature within six months after execution (0), and if the surrender declares the trusts, it must be enrolled within the same period (p).

A surrender will be construed in the same way as a Construction

(k) Snook v. Mattock, 5 A. & E. 239; Regina v. Corbett, 1 E. & B. 836.

(7) Sect. 24 (1), (3).

(m) Hood & Challis, Convey

ancing, &c. Acts, 234.

(n) 51 & 52 Vict. c. 42, sec. 4,
sub-secs. (1)-(6).

(0) Ibid., sec. 4 (9).
(p) Ibid.

of surrenders.

Effect of a surrender.

deed at common law (2), with an exception as to the customs of certain manors, which give special meanings to such phrases as "to him and his," "to him, his sequels and assigns," and the like (r). But the construction of surrenders was not always so strict, and in some of the earlier cases a tendency may be observed to give effect to the intention of the parties as in a will, rather than to follow the legal meaning of the terms employed (s).

The general effect of a surrender is, that it binds the lands from its date, so that the surrenderor cannot properly convey to any other person, or make the land subject to any other incumbrance than it was subject to at the time of the surrender (t). The copyholder cannot convey more than he has in the land (u), and will not be bound by way of estoppel by his subsequent possession of an estate which he may have improperly included in a surrender(). No more of the copyholder's estate will pass than is necessary to effect his intention: thus, if a copyholder in fee surrenders to the use of A. for life, the residue undisposed of continues in him (y); and if the conveyance is to particular uses, with the ultimate limitation to his own right heirs, they will take such limitation as of the old estate (). No estate passes to the lord, nor does the land vest in him as a trustee, for he is only an instrument through whom the lands must be conveyed according to the surrender (a); and the surrenderee when admitted is in by the surrenderor and not by the lord (b);

but in the case of copyholds for lives there is, it seems, an exception to this rule; for if a copyholder for lives conveys to the use of another to whom the lord grants, the estate vests in the lord, and the grantee is in by him (c). The lord cannot vary the estate, or grant to any person other than the surrenderor has appointed (d); and, accordingly, if there is any variation between the admittance and the surrender, either in the person, estate, or tenure, or in any other collateral points, the lord only transfers an estate according to the surrender (e).

surrenderee.

A surrenderee has no legal estate until he comes in and is Estate of admitted, because there must be the assent of the lord to the surrender of the previous tenant (f). Consequently, before admittance is made, the surrenderor remains tenant to the lord, and is liable to all the customary duties and services (g).

So far, however, as the interest which the non-admittance of the surrenderee leaves in the surrenderor is for the lord's benefit, it may be waived by him, and so destroyed (h). As between the parties to the conveyance, the surrender is the material part of the conveyance, and the surrenderor will hold in trust for the surrenderee (i); the heir of the latter will inherit (k), and, in equity at least, a right of freebench or customary curtesy will attach on the estate. The title of the surrenderee, after admittance has been made, is taken back to the time of the surrender (7), so that he might lay a demise in an action of ejectment to recover the copyhold at any time after the surrender, but he cannot bring the action before he has been admitted (m).

Before admittance the purchaser cannot surrender, and a subsequent admittance will not make the instrument valid, so that if an unadmitted purchaser surrenders and the surrenderee be admitted, this will not amount to such an admittance by implication, even if made by the lord himself, as will make the transaction legally valid (n). As against the surrenderor an unadmitted surrenderee has an estate in equity which he may devise or assign (o); but as against the lord an unadmitted surrenderee had no right before the passing of the Wills Act, 1837 (p), to devise his right to be admitted, so as to confer a legal estate on the devisee (7); and it would seem also that he cannot assign the right in such a way as to entitle his assignee to call upon the lord for admittance ().

Before the Wills Act, 1837, the devisee of an unadmitted devisee could not acquire the legal estate without a surrender from the heir-at-law of the original testator, or an admission followed by a release from the persons having the first title to admittance (s). This Act, however, enables every person to devise all the real estate of the nature of customary freehold or tenant-right, customary or copyhold or any other tenure, to which he may be entitled either in law or in equity at the time of his death, and which if not so devised would devolve on his customary heir, or in a case of descent, upon the customary heir of his ancestor, notwithstanding that such person may not have surrendered the same to the use of his will, or that, being entitled as heir devisee or otherwise to be admitted thereto, he may not have taken admittance, or that in consequence of the want of a custom to devise or to surrender to the use of a

(n) Co. Copyh. s. 39; Wilson v. Weddell, Yelv. 144, 145; Doe d. Tofield v. Tofield, 11 East, 246.

(0) Davies v. Beversham, 2 Freem. 157; The King v. Hendon Manor (Lord of), 2 T. R. 484.

(p) 1 Vict. c. 26.

(2) Doe d. Vernon v. Vernon, 7

East, 8; Doe d. Tofield v. Tofield, 11 East, 246; Matthew v. Osborne, 13 C. B. 919.

(r) See Matthew v. Osborne, 13 C. B. 919, 941.

(s) Smith v. Triggs, 1 Stra. 487; Wainewright v. Elwell, 1 Madd.

627.