support it." In Glass v. Richardson, 9 Hare, 698, there was a devise of a copyhold to such uses as A. and B., or the survivor of them, or the executors or administrators of the survivor, or the trustees or trustee of the will for the time being, should by deed appoint; and, subject thereto, to the use of A. and B., their heirs and assigns, for ever; with a direction to sell, and stand possessed of the proceeds upon certain trusts. After the death of the testator, A. and B. sold the copyhold estate, in pursuance of the trusts. The lord of the manor required that A. and B., the devisees, should be admitted, before the admission of the purchaser. On a bill by A. and B., the vendors, against the purchaser, to compel a specific performance of the contract, Vice-Chancellor Turner held that the copyhold tenant might direct the lord to admit into the tenancy either such person as A. should nominate, or A. himself; that it was the exercise of the right of the tenant to nominate alternatively in favour of A. or the nominee of A., not a double exercise of his right to nominate, first, in favour of A., and then in favour of the nominee of A.; and that the purchaser was bound specifically to perform the contract. In delivering judgment, his Honor said: "The will of a copyhold tenant, as I apprehend, is nothing more than a direction to the lord as to the person who is to be admitted into the tenancy. The tenant may direct the lord to admit into the tenancy any person whom he names; or, as is established by the cases with reference to authorities given for the sale of copyhold estates, he may direct the lord to admit into the tenancy any person who may be nominated by the party who is authorised to sell. Upon what principle, then, can it be said that he cannot direct the lord to admit into the tenancy either such person as A. shall nominate, or A. himself, if he makes no nomination. If A. nominates, the nomince of A. is the nominee of the testator; and the direction is to admit him. 1853. FLACK บ. THE MASTER, 1853. FLACK v. THE MASTER, &C., OF DOWNING COLLEGE. If he does not so nominate, the direction is to admit A. It seems to me to be no more than an exercise by the tenant of his right to nominate alternatively in favour of the nominee of A., or of A., and not a double exercise of his right to nominate first in favour of A., and then in favour of the nominee of A." [Jervis, C. J. There A. was a party in interest: and the lord was entitled to a fine.] These were all cases of surrenders to the use of a will. The next question will be, what is the effect of a surrender like this, inter vivos. The case of The King v. The Lord of the Manor of Oundle, 1 Ad. & E. 283, 3 N. & M. 484 (a), is precisely in point, save that there the surrender was absolute, here conditional. A copyholder in fee surrendered to such uses as A. should appoint, and, in default of appointment, to the use of A. in fee: A., without having been admitted, appointed: and it was held, that the appointment was a good execution of the power, and entitled the appointee to be admitted as surrenderee of the copyholder, who continued tenant to the lord until some one was admitted under his surrender. Lord Denman there says: "The application to copyhold property of the general doctrine that an appointee under a power takes by the instrument creating the power, and not under that by which the power is executed, was not disputed; nor was it denied that trustees with a mere power to sell were not compellable to come in as tenants, in conformity with Beal v. Shepherd and Holder d. Sulyard v. Preston. But a distinction between these cases and the present was strongly insisted upon; for, here, Dawson was not a mere trustee to sell, but was surrenderee in fee for his own benefit, until and unless he should make an appointment: that event might never have happened, and, at any rate, without his being admitted, his interest could not be transferred to Pruday. But it appears to (a) And see 1 N. & M. 586. us that these premises may be correct, without leading to the conclusion. The lord never is nor can be for one moment deprived of a tenant, for, the estate must always be in some person. In the two cases above cited, of trustees to sell, without an interest, the estate was not in abeyance till sale, but remained in the heir of the devisor, which heir the lord might have compelled to be admitted, if the sale was not made in a reasonable time: but, when such sale was made, the purchaser was entitled to be admitted under the surrender to the use of the will, just as if he had been a devisee named in it." [Maule, J. I presume Dawson there was a purchaser for money.] He was. That case shews that the appointee is as if named in the will, although not in the execution of a mere naked power, but of a power coupled with an interest, and although the appointment is by deed. [Cresswell, J. There, the lord had acted upon the surrender.] In The Queen v. The Lady of the Manor of Dullingham, 8 Ad. & G. 858, 1 P. & D. 172, the surrender was similar to that in the present case, and no objection was taken to it. [Maule, J. There being one clear and fatal objection, it was unnecessary to urge another.] In a MS. case of The Queen v. The Dean and Chapter of Ely, a rule was made absolute for a mandamus commanding the lords of the manor of Witchford, in the Isle of Ely, to accept a surrender to such uses as one R. Poole (a purchaser for a money consideration) should at any time, or from time to time, by any deed or deeds, or by his last will and testament in writing, &c., appoint. [Jervis, C. J. That proves nothing: the case is not reported, because it was no decision.] The lord is not injured by such an appointment as this, except that there may be two or three alienations in the course of a good life but that affords no answer. Nor is he deprived of : a tenant; for, he may call upon the heir of the surrenderor to come in and be admitted. [Maule, J. No 1853. FLACK v. THE MASTER, DOWNING 1853. FLACK v. THE MASTER, &C., OF DOWNING COLLEGE. doubt, there is such thing as a surrender which will enure to entitle one who is a stranger to the lord, and who is not expressly named in the surrender, to be admitted but it can only be where there is a special custom to warrant it, and by will.] The cases shew that the tenant may enable C. D. to appoint, after his death, by deed. [Maule, J. No: only by will.] No special custom is necessary to enable the tenant to devise. [Maule, J. It is a general custom of all manors.] The case of an appointment by will is an instance; the case of a deed is another instance. [Maule, J. All the cases, except The Queen v. The Lady of the Manor of Dullingham, are cases of wills: and there it passed sub silentio.] The principle is the same in both cases. Hugh Hill, contrà. It may be conceded, that, if the lord had accepted this surrender, he would be bound to admit the appointee. But the question here is, whether he was bound to receive and inrol a surrender in this form. There are only two cases that have any bearing upon the point, viz. The King v. The Lord of the Manor of Oundle, 1 Ad. & E. 283, 3 N. & M. 484, and Eddleston v. Collins, 22 Law Journ., N. S., Chan. 480: but neither of them decides it. In the last-mentioned case, the surrender was taken by a deputy-steward who was at the time an infant. The surrender was, "to such uses, and for such purposes, &c., and charged and chargeable with such sums of money for the benefit of Collins, as Adcock should, by the direction of Collins, appoint; and, in default of and until any such appointment, to the use of Adcock in fee, according to the custom of the manor, but subject to the previous surrender, and also to a proviso, that, if Collins, his heirs, executors, or administrators, should pay to Adcock, his executors or administrators, 1007. and interest, then the surrender should be void." And the Lord Chancellor said: "I give no opinion whether the lord was bound to accept such a surrender; very probably he was not,—Glass v. Richardson, 9 Hare, 698: but, having done so, the case does not admit of a doubt." The King v. The Lord of the Manor of Oundle is cited in 1 Scriven on Copyhold, 175: but, in a note, it is said,-" But the author apprehends that the lord is not compellable to accept a surrender creating a power of appointment, to be executed by deed." In Rowden v. Maltster, Cro. Car. 42, Yelverton, J., says: "The statute of 27 H. 8, c. 10, of uses, toucheth not copyhold, because the transmutation of possession by the sole operation of that statute, without allowance of the lord, would tend to the lord's prejudice." That doctrine is commented upon by Mr. Preston, Shep. Touchst. 515, n., thus:-"The statute of uses does not affect copyholds, 'because (according to Lord Coke, in his Comp. Cop. 124,) the transmutation of possession by the sole operation of the statute, without the allowance of the lord, or the agreement of the tenant, would tend to the prejudice both of the lord and of the tenant.' The reason might be true, supposing any act could be done with the estate whereby the statute could operate (if it were construed to extend to copyholds,) without the allowance of the lord and the agreement of the tenant; but it is presumed no act can be done respecting the actual transfer of a copyhold estate, which does not include both the allowance of the lord and the agreement of the tenant. The reasoning of the Lord Chief Baron Gilbert does not appear more satisfactory. He says, the statute of uses 'extends not to copyholds, which is plain from common experience; for, when a copyholder surrenders to the use of another, the possession is not executed to the use, for, the surrenderee hath nothing till admittance; for, it was not the intent of the statute to execute the possession to the use of copyhold lands, for, then a tenant would be intro 1853. FLACK v. THE MASTER, &c., OF DOWNING COLLEGE. |