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of the lord (h) and that it was a settled rule, that the equitable fee of customary freeholds, even when it was acquired by way of resulting trust, and although the custom of the manor was not to recognize an alienation by will, nor to permit any trusts to appear upon the courtrolls, was devisable (i).
It is observable, however, that the case of Hussey v. Grills (k) is an authority that a devise of an equitable interest in customary freeholds, where there was no custom to surrender the legal interest to the use of a will, or where the customary interest was not devisable, must have been attested according to the statute of frauds: and in another case (1) the court would appear to have felt a distinction, as to the relevancy of that statute, between a devise of customary lands passing by deed and admittance, and a devise of the like lands passing by surrender and admittance. But as it would seem to be a recognized principle that a customary freeholder has no freehold interest, in the strict legal sense of that word, even when the estate passes by deed of grant or bargain and sale and admittance, the court must be presumed to have been influenced in the above case of Hussey & Grills, (supposing that case to have been rightly decided,) by the circumstance of the will alone being operative in a devise of customary freeholds passing by deed of grant or bargain and sale and admittance, whereas the will was to be deemed declaratory only of the uses of the surrender, when lands of that tenure passed by surrender and admittance, the same as in a devise of ordinary copyholds.
This distinction is deducible from the words of Lord Hardwicke, who, in his judgment in that case, said, "There is no evidence that there can be in this manor a surrender of a customary freehold to the use of a will. Agreed, there never was any such. The foundation of the determinations as to copyholds is that the party may dispose by surrender and will. As there is no method of passing the legal estate of these customary freeholds in this way, there is no reason to hold them out of the statute of frauds: and as the legal estate is not, so is not the trust."
In the case of Willan v. Lancaster (m) it appeared that the cus
estate in privileged copyholds or customary freeholds as in ordinary copyholds; Godwin v. Winsmore, 2 Atk. 526; Forder v. Wade, 4 Bro. C. C. 521; ante, pt. 1, p. 75.
(h) The Court of B. R. held in Doe & Danvers, 7 East, 299, that a right of entry in customary freeholds, passing by surrender and admittance, but not held at the will of the lord, was not tolled by descent. And now by 3 & 4 Will. 4, c. 27, s. 39, no descent, discontinuance or warranty,
will bar a right of entry for the recovery of
(i) Wilson v. Dent, 3 Sim. 385; and
(k) Amb. 299; ante, pt. 1, p. 332, n.
tomary freehold lands held of the manor were not devisable, but were transferred by deed and admittance, the operative words of the deed being "bargain, sell and surrender." The particular lands were vested in a trustee, in trust for the testator for life, and after his decease for such purposes as he should appoint by deed, or by will or codicil, to be by him legally executed; and the question was, whether a codicil not executed according to the statute of frauds would pass the equitable interest.
The case was argued merely with reference to the question whether the equitable interest of a customary freehold would or would not pass by a will not executed according to the statute of frauds: and Lord Gifford, M. R., desired that the question might be considered with reference to the construction to be put upon the words "to be by him legally executed," by which the testator might have meant executed according to the statute of frauds." The case was afterwards argued before Sir John Copley, M. R., and the report merely states that his Honor was of opinion that the customary lands did not pass by the codicil.
It may be proper also to premise that the author has not discovered any case in which the question has arisen, whether there may be a general occupant of customary freehold lands: but as an occupancy is for supplying a freehold (n), and as the freehold remains in the lord in privileged as well as in ordinary copyholds, the former would seem, with reference to the law of occupancy, to stand on the same footing as the latter, and to be subject to special, but not to general occupancy (o).
The author has been equally unsuccessful in his endeavours to discover some judicial authority, or at least some respectable dicta, to prove the perfect accordance, or to establish a clear distinction between privileged and ordinary copyholds, with regard to the operation of the writ of elegit, and from which the latter were clearly exempt (p).
(n) Per Holt, C. J., in Smartle v. Penhallow, 1 Salk. 189.
(0) Ante, pt. 1, pp. 50, 51, 89. And see s. 6 of 1 Vict. c. 26, by which the provisions of 29 Car. 2, c. 3, s. 12, and 14 Geo. 2, c. 20, s. 9, are made applicable to customary holds, held pur autre vie, when there is no special occupant; ante, pt. 1, p. 51.
(p) Ante, pt. 1, pp. 47, 48, 86.
Since the second edition of this work was published, it has been suggested that customary freeholds were liable to be extended at the suit of a judgment creditor, under
the writ of elegit; see Mann. Excheq. Prac. p. 43. Sed qu.? unless where the lands were not within and parcel of, but held of the manor, the freehold then being vested in the tenant; ante, p. 567, n. (z). In p. 362, Mr. Manning states that customary freeholds in ancient demesne were extendible, for which he cites Cox & Barnsly, Hob. 47, and other authorities. And see Martin v. Wilks, Mo. 211; 2 Inst. 397. But it is observable that in the case of lands of ancient demesne tenure, the freehold is in the tenant. See 2 Inst. 325; infra, n. (r).
The chief inducement to the decision that ordinary copyholds were not included in the statute of 13 Ed. I. c. 18, appears to have been the possible prejudice which the lord might have sustained by the introduction of a new tenant without his consent (q); and this principle would seem to have applied equally to customary freeholds (or privileged copyholds), although not held at the will of the lord, as the lord's assent to the change of tenancy was implied in the admittance, which (however unsubstantial the act may be considered at the present day) is, the author believes, an obligation invariably imposed upon the alienation of customary freeholds, although passing by deed of bargain and sale, or other act of assurance not applicable to ordinary copyholds.
It might also have been difficult to establish a distinction between privileged and ordinary copyholds, in the construction of the act of 13 Ed. I. of elegit, consistent with the rule, that the freehold is never taken out of the lord in lands of the one tenure or the other, and which would seem to have excluded the sheriff from any jurisdiction over customary freeholds, equally as in the case of ordinary copyholds (r).
But the necessity of an admittance by the lord of the manor, in order to perfect the conveyance of customary freeholds, and the absence of any actual freehold interest in the tenant, would appear to have been the only grounds favourable to the opinion, that lands of customary freehold tenure passing by deed, and not held at the will of the lord, were not affected by an extent :-and the exemption was clearly not to be maintained on the ground of any right which the tenants of such lands might have to implead and be impleaded in the court of the lord of the manor exclusively; for the sheriff upon an elegit
(9) Ante, pt. 1, p. 81.
(r) The case of an ejectment is an exception to this rule, but it is to be recollected that an ejectment is, in principle, an action of trespass, founded on a common law title; and also that the party bringing the ejectment must first procure admittance to the estate in question, and which he could enforce by showing a colourable right.
N. B. By sect. 11 of 1 & 2 Vict. c. 110, the sheriff is directed to deliver execution, upon an ELEGIT issuing, of all the lands of the debtor, including lands of copyhold or customary tenure, and lands over which he has a disposing power for his own benefit, in like manner as the sheriff could previously to that act have delivered execution of a moiety of lands under a writ
of elegit. But it is provided by the same section, that the party to whom copyhold or customary lands should be delivered in execution, should render and perform the payments and services due to the lord, and be entitled to hold the lands until the amount of such payments, and the value of such services, as well as the amount of the judgments, should have been levied; ante, pt. 1, p. 47.
And the reader is reminded that customaryholds and copyholds are within the late statute of limitations, 3 & 4 Will. 4, c. 27; ante, pt. 1, p. 82, n. (u); and also that customary holds and copyholds, as well as freeholds, are made assets for specialty debts by 3 & 4 Will. 4, c. 104, ante, pt. 1, p. 48, 90, n. (l), 540, n. (t). Vide extract from the act in the Appendix.
delivers only a legal and not an actual possession (s); and to obtain an actual possession the plaintiff must proceed by ejectment. A further argument to be urged against the latter ground of exemption (and which may also be urged against the supposition of any such privilege resulting from the freehold interest never having been taken out of the lord) is, that lands of the tenure of ancient demesne are extendible, although ancient demesne is a good plea where the freehold is in question (t); for a tenant by elegit has but a chattel interest (u); and by this execution, neither the freehold nor the possession is removed (x). It must not be forgotten, however, that although the actual possession is not removed by the sheriff's entry and delivery of possession under an elegit, yet that the legal possession so acquired lays the foundation of an ejectment to recover the actual possession; and also that tenants by elegit had the same remedy by assise as freeholders were entitled to (y).
The author will now proceed to notice the cases to which he has before adverted, deciding, as he submits, that the freehold is vested in the lord and not in the tenant in all customary freeholds, whether passing by surrender, or by deed of grant, or bargain and sale, and admittance (z).
In the case of Stephenson v. Hill (a), which was an action on the statute of 2 Edw. VI. 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 Hen. VIII. 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
(s) Saunders, 69, n. (3); 2 Cru. Dig. infra, that these customary estates in the 73; Alden's case, 5 Co. 105. north never pass by feoffment, but by grant and admittance.
(1) Post, tit. "Ancient Demesne."
(u) Co. Lit. 42 a.
N. B. A custom that all feoffments of
(x) Ib.; Coke v. Barnsley, 1 Brownl. freehold lands within the manor must be
(y) 2 Inst. 396. Note, the stat. of Westm. 2, c. 18, gave such tenants a writ of novel disseisin, if ejected, and afterwards a writ of re-disse isin; ib. 394, 396; F. N. B. 189, I; and see Co. Lit. 154 a; and n. 11, ib.
(z) But if by the custom a feoffment should be requisite, as well as a surrender, the author apprehends that the freehold would be considered to be in the tenant. It was said argo. in Stephenson v. Hill,
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 answered and resolved, that "in the case at bar when the feoffment is presented according to the custom, then it takes effect by force of the livery before."
(a) 3 Burr. 1278.
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 and others (b) was this:the lord by his deed, dated subsequently to the stat. of quia emptores, 18 Ed. I., granted and confirmed to the tenant his customary or tenant right estate (c), freed and discharged 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 tenant-right 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
(b) 4 East, 271.
(c) 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 the lord.
In some manors in the north of England, every tenant is admitted by the lord for the time being, and the tenant by virtue of such admittance holds during the joint lives of himself and the admitting lord; Duke of Somerset v. France, 1 Stra. 654; Fortesc. 41; ante, pt. 1, p. 316.
Under such an admission the heir acquires seizin by entry without admittance, if the land is customaryhold of inheritance, but not if the estate is only for the joint lives of the tenant and the lord, with
a tenant right of renewal; Doe & Clift, 12 Adol. & Ell. 566; ante, pt. 1, pp. 27,
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 unlikely even to be descendible, much less devisable; but the descent is now generally established, and perhaps the devisability also in this manor: and I am informed by a gentleman of the north, that many of these estates, to this day, are not devisable, at least not without leave of the lord, and seemingly the defendont relies upon this. If the licence of the lord is necessary, it should be stated in the replication.