Terms in

copyholds.

Shifting and

uses.

proportionate to the money respectively advanced, and not a joint-tenancy. (a).

Terms of years in copyholds may be made to attend the customary inheritance, either by a declaration of trust to that effect, or by implication, when the same person has the inheritance and the title to the term of years, but the one as a legal and the other as an equitable estate, or when both the interests so vested in one person are equitable estate. Attendant terms are not often found in copyholds, but they appear occasionally in the title to lands of this tenure. Copyholds not being within the provisions of the Satisfied Terms Act, 8 & 9 Vict. c. 118, in such cases it may be necessary to have the title of such terms of years during the whole period of their existence.

The legal as well as the equitable estate in a copyspringing hold tenement may be limited in ways which are only allowed in the case of freeholds when the conveyance or settlement takes effect under the Statute of Uses, although this statute does not apply to copyholds. The copyholder, for instance, may surrender to the use of his wife, or of himself and another. Powers of appointment and springing and shifting uses may be created in the declarations of uses upon copyhold surrenders as well as in conveyances of freehold estates (b), so that the estate conveyed may be

(a) Dyer v. Dyer, 2 Cox. Ch. Ca. White & Tudor L.C. Eq. 1, 184. (b) Boddington v. Abernethy, 5 B. & C. 776; Rex v. Oundle, 1 A. & E. 283.

modified from time to time in any manner, a remainder may be limited after a fee-simple, or a fee-simple may be made to arise in futuro.

mum of

The custom of each manor will determine the Maximaximum degree of property which the copyholders estate. may have in their customary tenements. In most places they have customary estates in fee-simple; but in some manors the highest estate known is a customary entail (a), and elsewhere all the copyholds are held upon lives or for terms of years. It may happen, that in the same manor one set of tenements is grantable in fee, and others for lives only, or for years, and for no greater estate. And these differences of usage apply, it will be remembered, as well to customary freeholds as to copyholds in the limited sense of the word. When copyholds are said to be grantable for any particular estate and in no other way, it is a rule that the lands may still be granted for any estate less than the maximum of interest grantable under the custom. The power to make the greater estate implies the power to make the less, so that a copyhold of inheritance may be aliened for any estate less than a fee-simple (or a fee-tail, as the case may be) and a copyhold held upon lives for any estate less in amount than the highest interest authorised by the custom. (). Bearing this rule in mind, it will be found convenient to treat separately of the various estates which are found existing upon copyholds of

(a) Watk. Copyh. App. I.

(b) Gravenor v. Tedd, 4 Co. 23.

Estates in copyholds of inheritance.

Conditional fee.

inheritance, copyholds for lives, and copyholds for years respectively.

I. COPYHOLDS OF INHERITANCE.

In copyholds of the first kind the tenant may have a customary fee, or any less estate, as now to be mentioned. As in the case of freeholds the estate in fee may according to the circumstances be absolute, conditional, or qualified. (a). And by the customs of a great number of manors an estate-tail is authorised to be created.

A conditional fee is where the estate is given to a man and his heirs, on condition that something shall be done, or to cease when something is done, or unless some act shall be done or something happen within a given time. And in manors where entails of copyholds are not allowed a limitation, which otherwise would create an estate-tail, will pass an estate similar to a (6 fee conditional at common law," or in other words a fee upon condition that the tenant shall have issue. Upon the birth of a child, the estate is at once enlarged into a fee-simple absolute. Before

Un

(a)" All inheritances (wrote Lord Coke) are of two sorts, either fee-simples or fee-tails. Of fee-simples some are determinable, some are undeterminable. Determinable, as where land is given to a man and his heirs so long as Paul's steeple shall stand. determinable, as where land is given to a man and his heirs without further limitation. Of fee-tails, some are general, some are special. General, as where land is given to a man and the heirs of his body, or heirs male or female of his body. Special, as where land is given to a man and the heirs, male or female, which he shall beget of such a woman."-Co. Copyh. s. 47.

such birth, the tenant can only aliene a defeasible estate, subject to the "possibility of reverter" or chance of the estate going back to the donor upon failure of the condition. If however the tenant can acquire this "possibility" for his own benefit before the birth of issue, the lesser estate will merge in the greater and the conditional quality of the fee will at once be discharged.

A qualified or base fee in copyholds (as in freeholds) is an estate given to a man and his heirs until the happening of some event or so long as a given state of things shall continue. The commonest example of this estate (to which the name of base-fee is especially applied) is where a tenant in tail disposes of the land in fee without the consent of the protector of the settlement. This will pass an estate in fee qualified to last so long as there shall be issue in tail of the disposing tenant in tail.

or

mary

Copyholds are not within the statute De Donis, Custo13 Edw. 1., but may be entailed if there is a custom entails. to warrant it. And the limitation may be either in tail-male or tail-female, and either in general special tail and on the death of one of the parents who are tenants in tail-special, the other will have an estate-tail after possibility of issue extinct, as in the case of a freehold. In conformity with the rules respecting freehold estates, and to prevent any estate being inalienable, it was always held that the entail might be barred in one of the following ways,

D

as a means of unfettering estates and to prevent perpetuities." (a).

:

Before the Act for abolishing Fines and Recoveries, 3 & 4 Will. 4, c. 74, copyhold entails might be barred 1 by a customary recovery in the lord's court: 2. by a surrender 3. in some places, by a preconcerted forfeiture to the lord followed by a fresh grant: and 4. by a grant of the freehold to the copyhold tenant in tail. (b). An equitable entail in a copyhold was, where such a course was practicable, barred in the same way as a legal entail. In other cases, any Act expressing the intention to destroy the equitable entail would have the desired effect. (c).

By s. 50. of the last-mentioned Act it is provided, that all the previous sections, relating to dispositions by tenants in tail of freeholds, shall apply to copyholds so far as circumstances and the different tenures will admit: except that the disentailing disposition of a legal estate-tail in a copyhold is to be made by surrender, and in the case of an equitable entail, either by a surrender or a deed enrolled within six months upon the court-rolls of the manor. (d). The

(a) Roe v. Baldwere, 6 T. R. 104.

(b) Dunn v. Green, 3 P. Wms. 9; Everall v. Smalley, 1 Wils. 26; Gilb. Ten. 177; Co. Litt. 60 b.

(c) Otway v. Hudson, 2 Vern. 583.

(d) The term “estates-tail," as used in this Act, in addition to its usual meaning includes a base-fee into which an estate-tail shall have been cenverted. "Base-fee" in this Act means exclusively that estate in fee into which an estate-tail is converted when the issue in tail are barred, but persons claiming estates by way of remainder or otherwise are not barred.-s. 1.