« SebelumnyaLanjutkan »
a common recovery. For if the recoveree should possibly obtain a recovery in lands from the common vouchee, these lands would supply the place of those so recovered from him by collusion, and would descend to the issue in tail. The reason will also hold good as to most remainder-men and reversioners, to whom the possibility will remain and revert, as a full recompense, but it will not always hold, and judges have astutely invented other reasons to sanction recoveries. It has been said, that though the estate-tail is gone from the recoveree, yet it is not destroyed, but only transferred, and still subsists in the recoveror, his heirs and assigns, and as the estate-tail continues forever, the remainders or reversions expectant on its determination can never take place.
Evading the Statute de Donis. To such awkward shifts and subtle refinements of reasoning did our ancestors have recourse to get the better of the stubborn statute, de donis. The design for these contrivances was laudable; the unriveting the fetters of estates-tail, but we cannot admire the means. Our modern courts have adopted a more manly way of treating the subject, by considering common recoveries in no other light than as the formal mode of conveyance, by which tenant in tail may
aliene his lands. It has often been desired, that the process of this conveyance could be shortened, by either repealing the statute de donis, or by vesting in every adult tenant in tail the same absolute fee-simple at once, which he may now obtain by the collusive fiction of a common recovery, though this might bear hard upon those in remainder or reversion; or lastly, by empowering the tenant in tail to bar the estate-tail by deed, which is warranted, not only by the usage of our American colonies and the decisions of our own courts, which allow a tenant in tail, without fine or recovery, to appoint his estate to any charitable use, and in case of a bankrupt tenant in tail, empower his commissioners to sell the estate at any time by deed indented and enrolled. 1
2. Force and Effect. The force and effect of common recoveries appear to bar not only estates-tail, but remainders and reversions expectant thereon. By statute, a remainder or reversion in the king is not barred, nor can a woman after her
1 Fines and recoveries are now deemed mere forms of conveyance, the theory and original principles being little regarded.
husband's death suffer a recovery of lands settled on her by her husband, or settled upon her and her husband by an ancestor. By another statute, no tenant for life can suffer a recovery, so as to bind those in remainder or reversion. If, however, he vouch the remainder-man, and he appears and vouches the common vouchee, it is then good.
Must be Seised of the Freehold, In all recoveries, it is necessary that the recoveree, or tenant to the praecipe, be actually seised of the freehold, else the recovery is void. For all actions to recover the seisin of lands must be brought against the actual tenant of the freehold, else the suit will lose its effect. The nicety thought requisite in conveying the legal freehold, in order to make a good tenant to the praecipe, is removed by the statute of George II, which enacts: that though the freehold be vested in lessees, yet those who are entitled in remainder or reversion may make good tenants to the praecipe; that though the deed or fine which creates such tenant be subsequent to the judgment of recovery, yet if it be in the same term, the recovery shall be valid in law; and though the recovery itself do not appear of record, yet the deed, after a possession of twenty years, shall be sufficient evidence, on behalf of a purchaser for valuable consideration, that such recovery was duly suffered.
Deeds to Lead or Declare Uses. As to deeds to lead or to declare the uses of fines and of recoveries, if they be levied or suffered, without good consideration, and without any uses declared, they, like other conveyances, enure only to the use of him who levies or suffers them. If these deeds are made previous to the fine or recovery, they are called deeds to lead the uses; if subsequent, deeds to declare them.
CHAPTER XXII.-ALIENATION BY SPECIAL CUSTOM.
Copyhold Lands. This obtains only in particular places, and relates only to a particular species of real property. It is confined to copyhold lands, and such customary estates as are held in ancient demesne, or in manors of a similar nature; which being of a peculiar kind, and originally no more than pure or privileged villenage, were never alienable by deed. The method of transferring is generally by surrender, though in some manors, by special custom, recoveries may be suffered of copyholds.
Surrender. Surrender is the yielding up of the estate by the tenant into the hands of the lord, for purposes expressed in the surrender. The process in most manors, is that the tenant shall come to the steward, or else to two customary tenants of the same manor, provided there be a custom to warrant it, and there, by delivering up a rod, glove, or other symbol into the hands of the lord by the hands of his steward, or of the said two tenants, yield all his interest and title to the estate, in trust to be again granted out by the lord to such persons, and for such uses, as are named in the surrender, and the custom of the manor will warrant.
Grant to Second Tenant. Upon such surrender in court, or upon presentment of a surrender made out of court, the lord, by his steward, grants the same land to cestui que use, to hold by ancient rents and customary services, and thereupon admits him tenant to the copyhold. Upon such admission, he pays a fine to the lord, according to the custom of the manor, and takes the oath of fealty.
Consent of Lord Essential. The fief, being of a base nature and tenure, is unalienable, without the knowledge and consent of the lord, hence the copyhold estate is surrendered into his hands. Custom has given the tenant a right to name his successor, but formerly it was otherwise. When, therefore, the lord had accepted a surrender of his tenant's interest, upon confidence to re-grant the estate to another person, either then expressly named, or to be afterwards named in the tenant's will, chancery enforced this trust as a matter of conscience. Even to this day, the new tenant cannot be admitted but by composition with the lord, and by paying him a fine for the license of alienation.
Transfer of Copyhold Explained. This method of conveyance is so essential to the nature of a copyhold estate that it cannot be properly transferred by any other assurance. No feoffment or grant has any operation thereon. If I would exchange a copyhold with another, I cannot do it by an ordinary deed of exchange at the common law, but we must surrender to each other's use, and the lord will admit us accordingly.
If I would devise a copyhold, I must surrender it to the use of my last will and testament, and in my will I must declare my intentions and name a devisee, who will then be entitled to admission.
Its several Parts. To more clearly apprehend the nature of this peculiar assurance, we must take a separate view of its several parts: the surrender, the presentment, and the admittance.
1. The Surrender. A surrender, by an admittance subsequent, whereto the conveyance is to receive its perfection and confirmation, is rather a manifestation of the alienor's intention, than a transfer of any interest in possession. For, till admittance of cestui que use, the lord takes notice of the surrenderor as his tenant, and he shall receive the profits of the land to his own use, and discharge all services due the lord, yet the interest remains in him, not absolutely, but sub modo, for he cannot pass away the land to another, or make it subject to any new encumbrance. But no legal interest is vested in the nominee before admittance, and if he enters, he is a trespasser.
Subsequent Acts. If he surrenders to the use of another, the surrender is void, and by no matter ex post facto can be confirmed. No subsequent admittance can make an act good, which was ab initio void. If the lord refuse to admit the tenant, he is compelled to do so by a bill in chancery or a mandamus, and the surrenderor can in no wise defeat this grant or countermand his own deliberate act.
2. The Presentment. By the general custom of manors, this is to be made at the next court baron, immediately after the surrender. It is to be brought into court by the same persons who took the surrender. In all material points it must correspond with the surrender. If the surrender be conditional, and the presentment be absolute, the surrender, presentment and admittance thereupon are void. If a man surrenders out of court and dies before presentment, and presentment be made after his death, if suffices. So if cestui que use dies before presentment, yet it be made after his death, the heir shall be admitted.
3. The Admittance. This is the last stage of copyhold assurances. It is of three sorts: An admittance upon a voluntary grant from the lord; an admittance upon surrender by the former tenant; an admittance upon a descent from the ancestor. On Voluntary Grant from the Lord. In such admittance, when copyhold lands have escheated or reverted to him, the lord is an instrument. For though he may keep the lands in his own hands, or dispose of them at his pleasure, by granting a fee-simple, a freehold or a chattel interest therein, and may change their nature from copyhold to socage tenure, so as to be reputed their absolute owner; yet if he will still continue to dispose of them as copyhold, he is bound to observe the ancient custom in every point, and can make no alteration, for that would create a new copyhold.
On Admittances upon Surrender. The lord in this case is to no intent reputed as owner, but wholly as an instrument; and the tenant admitted shall be subject to no charges or encumbrances of the lord.
On Admittance upon Descents. The lord is also a mere instrument in such case, resulting from the death of an ancestor; and as no interest passes to him by the surrender or death of his tenant, so no interest passes from him by the act of admittance. Admittances upon descent differ from admittances upon surrender, in that by surrender, nothing is vested in cestui que use before admittance, no more than in voluntary admittances, but upon descent, the heir is tenant by copy immediately upon the death of his ancestor. He may enter into the land before admittance; may take the profits and may punish any trespass done upon the ground. The admittance of the heir is principally for the benefit of the lord, to entitle him to his fine, and is not so much necessary to strengthen the heir's title.
CHAPTER XXIII.-ALIENATION BY DEVISE.
Antiquity of Devises. Before the conquest, lands were devisable by will. But upon the introduction of military tenures, the restraint of devising lands naturally took place, as a branch of the feudal doctrine of non-alienation, without the consent of the lord. Some have questioned, whether this restraint was not founded upon truer principles of policy, than the power of wantonly disinheriting the heir by will, and transferring the