Front Page Titles (by Subject) CHAPTER XXII.: OF ALIENATION BY SPECIAL CUSTOM. - Commentaries on the Laws of England in Four Books, vol. 1
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CHAPTER XXII.: OF ALIENATION BY SPECIAL CUSTOM. - Sir William Blackstone, Commentaries on the Laws of England in Four Books, vol. 1 
Commentaries on the Laws of England in Four Books. Notes selected from the editions of Archibold, Christian, Coleridge, Chitty, Stewart, Kerr, and others, Barron Field’s Analysis, and Additional Notes, and a Life of the Author by George Sharswood. In Two Volumes. (Philadelphia: J.B. Lippincott Co., 1893). Vol. 1 - Books I & II.
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OF ALIENATION BY SPECIAL CUSTOM.
We are next to consider assurances by special custom, obtaining only in particular places, and relative only to a particular species of real property. This therefore is a very narrow title; being confined to copyhold lands, and such customary estates as are holden in antient demesne, or in manors of a similar nature; which, being of a very peculiar kind, and originally no more than tenancies in pure or privileged villenage, were never alienable by deed; for, as that might tend to defeat the lord of his seigniory, it is therefore a forfeiture of a copyhold.(a) Nor are they transferable by matter of record, even in the king’s courts, but only in the court-baron of the lord.1 The method of doing this is generally by surrender; though in some manors, by special custom, recoveries may be suffered of copyholds:(b) but these differing in nothing material from recoveries of free land, save only that they are not suffered in the king’s courts, but in the court-baron of the manor, I shall confine myself to conveyances by surrender, and their consequences.
Surrender, sursumredditio, is the yielding up of the estate by the tenant into the hands of the lord, for such purposes as in the surrender are expressed. As, it may be, to the use and behoof of A. and his heirs; to the use of his own will; and the like. The process in most manors is, that **366]the tenant comes to the steward, either in court, (or, if the custom permits, out of court,) or else to two customary tenants of the same manor, provided there be also a custom to warrant it; and there, by delivering up a rod, a glove, or other symbol, as the custom directs, resigns into the hands of the lord, by the hands and acceptance of his said steward, or of the said two tenants, 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. If the surrender be made out of court, then at the next or some subsequent court, the jury or homage must present and find it upon their oaths; which presentment is an information to the lord or his steward of what has been transacted out of court. Immediately upon such surrender in court, or upon presentment of a surrender made out of court, the lord by his steward grants the same land again to cestuy que use, (who is sometimes, though rather improperly, called the surrenderee,) to hold by the antient rents and customary services; and thereupon admits him tenant to the copyhold, according to the form and effect of the surrender, which must be exactly pursued.2 And this is done by delivering up to the new tenant the rod, or glove, or the like, in the name, and as the symbol, of corporal seisin of the lands and tenements. Upon which admission he pays a fine to the lord according to the custom of the manor, and takes the oath of fealty.3
In this brief abstract of the manner of transferring copyhold estates we may plainly trace the visible footsteps of the feodal institutions. The fief, being of a base nature and tenure, is unalienable without the knowledge and consent of the lord. For this purpose it is resigned up, or surrendered into his hands. Custom, and the indulgence of the law, which favours liberty, has now given the tenant a right to name his successor; but formerly it was far otherwise. And I am apt to suspect that this right is of much the same antiquity with the introduction of uses with respect to freehold lands; for the alience of a copyhold had merely jus fiduciarium, for which *[*367there was no remedy at law, but only by subpæna, in chancery.(c) 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, the chancery enforced this trust as a matter of conscience, which jurisdiction, though seemingly new in the time of Edward IV.,(d) was generally acquiesced in, as it opened the way for the alienation of copyholds, as well as of freehold estates, and as it rendered the use of them both equally devisable by testament. Yet, even to this day, the new tenant cannot be admitted but by composition with the lord, and paying him a fine by way of acknowledgment for the license of alienation. Add to this the plain feodal investiture, by delivering the symbol of seisin in the presence of the other tenants in open court; “quando hasta vel aliud corporeum quidlibet porrigitur a domino se investituram facere dicente; quæ saltem coram duobus vasallis solemniter fieri debet:”(e) and, to crown the whole, the oath of fealty is annexed, the very bond of feodal subjection. From all which we may fairly conclude, that, had there been no other evidence of the fact in the rest of our tenures and estates, the very existence of copyholds, and the manner in which they are transferred, would incontestably prove the very universal reception which this northern system of property for a long time obtained in this island; and which communicated itself, or at least its similitude, even to our very villeins and bondmen.
This method of conveyance is so essential to the nature of a copyhold estate, that it cannot properly be transferred by any other assurance. No feoffment or grant has any operation thereupon. If I would exchange a copyhold estate 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 **368]it to the use of my last will and testament;4 and in my will I must declare my intentions, and name a devisee, who will then be entitled to admission.(f) A fine or recovery had of copyhold lands in the king’s court may, indeed, if not duly reversed, alter the tenure of the lands, and convert them into frank fee,(g) which is defined in the old book of tenures(h) to be “land pleadable at the common law;” but upon an action on the case, in the nature of a writ of deceit, brought by the lord in the king’s court, such fine or recovery will be reversed, the lord will recover his jurisdiction, and the lands will be restored to their former state of copyhold.(i)5
In order the more clearly to apprehend the nature of this peculiar assurance, let us take a separate view of its several parts; the surrender, the presentment, and the admittance.
1. A surrender,6 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 cestuy que use, the lord taketh notice of the surrenderor as his tenant; and he shall receive the profits of the land to his own use, and shall discharge all services due to the lord. Yet the interest remains in him not absolutely, but sub modo; for he cannot pass away the land to any other, or make it subject to any other encumbrance than it was subject to at the time of the surrender. But no manner of legal interest is vested in the nominee before admittance. If he enters, he is a trespasser, and punishable in an action of trespass:7 and if he surrenders to the use of another, such surrender is merely void, and by no matter ex post facto can be confirmed. For though he be admitted in pursuance of the original surrender, and thereby acquires afterwards a sufficient and plenary interest as absolute owner, yet his second surrender previous to his own admittance is absolutely void ab initio; because at the time of such surrender he had but a possibility of an interest, and could therefore transfer nothing: and no subsequent admittance can make an act good which was ab initio void. Yet, though upon the original surrender the nominee hath but a possibility, it is however such a possibility as may whenever he pleases be reduced to a certainty; for he cannot either by force or fraud be deprived or deluded of the effects and fruits of the surrender; but if the lord refuse to admit him, he is compellable to do it by a bill in chancery, or a mandamus:(k) *[*369 and the surrenderor can in no wise defeat his grant; his hands being forever bound from disposing of the land in any other way, and his mouth forever stopped from revoking or countermanding his own deliberate act.(l)8
2. As to the presentment; that, by the general custom of manors, is to be made at the next court-baron immediately after the surrender; but by special custom in some places it will be good though made at the second or other subsequent court. And it is to be brought into court by the same persons that took the surrender, and then to be presented by the homage; and in all points material must correspond with the true tenor of the surrender itself. And therefore, if the surrender be conditional, and the presentment be absolute, both the surrender, presentment, and admittance thereupon, are wholly void:(m) the surrender, as being never truly presented; the presentment, as being false; and the admittance, as being founded on such untrue presentment. If a man surrenders out of court and dies before presentment, and presentment be made after his death, according to the custom, that is sufficient.(n) So too, if cestuy que use dies before presentment, yet, upon presentment made after his death, his heir according to the custom shall be admitted. The same law is, if those, into whose hands the surrender is made, die before presentment; for, upon sufficient proof in court that such a surrender was made, the lord shall be compelled to admit accordingly. And if the steward, the tenants, or others into whose hands such surrender is made, refuse or neglect to bring it in to be presented, upon a petition preferred to the lord in his court-baron, the party grieved shall find remedy. But if the lord will not do him right and justice, he may sue both the lord, and them that took the surrender, in chancery, and shall there find relief.(o)9
**370]3. Admittance10 is the last stage, or perfection, of copyhold assurances. And this is of three sorts: first, an admittance upon a voluntary grant from the lord; secondly, an admittance upon surrender by the former tenant; and, thirdly, an admittance upon a descent from the ancestor.
In admittances, even upon a voluntary grant from the lord, when copyhold lands have escheated or reverted to him, the lord is considered as an instrument. For though it is in his power to keep the lands in his own hands; or to dispose of them at his pleasure, by granting an absolute fee-simple, a freehold, or a chattel interest therein; and quite to change their nature from copyhold to socage tenure, so that he may well be reputed their absolute owner and lord; yet if he will still continue to dispose of them as copyhold, he is bound to observe the antient custom precisely in every point, and can neither in tenure nor estate introduce any kind of alteration; for that were to create a new copyhold: wherefore in this respect the law accounts him custom’s instrument. For if a copyhold for life falls into the lord’s hands, by the tenant’s death, though the lord may destroy the tenure and enfranchise the land, yet, if he grants it out again by copy, he can neither add to nor diminish the antient rent, nor make any the minutest variation in other respects:(p) nor is the tenant’s estate, so granted, subject to any charges or encumbrances by the lord.(q)
In admittances upon surrender of another, the lord is to no intent reputed as owner, but wholly as an instrument; and the tenant admitted shall likewise be subject to no charges or encumbrances of the lord; for his claim to the estate is solely under him that made the surrender.(r)
And, as in admittances upon surrenders, so in admittances upon descents, by the death of the ancestor, the lord **371]is used as a mere instrument; and, as no manner of interest passes into him by the surrender or the death of his tenant, so no interest passes out of him by the act of admittance. And therefore neither in the one case nor the other is any respect had to the quantity or quality of the lord’s estate in the manor. For whether he be tenant in fee or for years, whether he be in possession by right or by wrong, it is not material; since the admittances made by him shall not be impeached on account of his title, because they are judicial, or rather ministerial, acts, which every lord in possession is bound to perform.(s)
Admittances, however, upon surrender, differ from admittances upon descent in this, that by surrender nothing is vested in cestuy 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: not indeed to all intents and purposes, for he cannot be sworn on the homage nor maintain an action in the lord’s court as tenant; but to most intents the law taketh notice of him as of a perfect tenant of the land instantly upon the death of his ancestor, especially where he is concerned with any stranger. He may enter into the land before admittance; may take the profits; may punish any trespass done upon the ground;(t) nay, upon satisfying the lord for his fine due upon the descent, may surrender into the hands of the lord to whatever use he pleases.11 For which reasons we may conclude, that the admittance of an heir is principally for the benefit of the lord, to entitle him to his fine, and not so much necessary for the strengthening and completing the heir’s title. Hence indeed an observation might arise, that if the benefit, which the heir is to receive by the admittance, is not equal to the charges of the fine, he will never come in and be admitted to his copyhold in court; and so the lord may be defrauded of his fine. But to this we may reply in *[*372the words of Sir Edward Coke:(u) “I assure myself, if it were in the election of the heir to be admitted or not to be admitted, he would be best contented without admittance; but the custom of every manor is in this point compulsory. For, either upon pain of forfeiture of their copyhold, or of incurring some great penalty, the heirs of copyholders are enforced, in every manor, to come into court and be admitted according to the custom, within a short time after notice given of their ancestor’s decease.”12
[(a) ] Latt. 74.
[1 ] Littleton (sect. 76) was probably our author’s authority for the doctrine stated in the text. Littleton says, “Tenants by copy of court-roll shall neither implead nor be impleaded for their tenements by the king’s writ; but if they will implead others for their tenements, they shall have a plaint entered in the lord’s court.” But, in Widdowson vs. Earl of Harrington, 1 Jac. & Walk. 549, the master of the rolls observed, “With respect to the manner of proceeding for the recovery of copyholds, it is said by counsel that it can be only by plaint in the lord’s court; but that is quite a mistake. There was a time when it was doubted whether you could proceed by the king’s writ,—whether you could bring an ejectment for a copyhold. But all that has given way, and the king’s courts are now open to ejectments for copyholds, in the same way as for freeholds. What is said by Littleton (sect. 76) applies generally to all actions; but we know that at this day it is not true to that extent.”—Chitty.
[(b) ] Moor. 637.
[2 ] If a surrenderor dies before the admittance of the surrenderee, his heir would take by descent, as the surrenderor died seised of the premises, no legal title vesting in a surrenderee till admittance. 5 East, 132. 1 Smith, 363. And where a devise was made by an unadmitted devisee, it was held that such second devisee, though admitted, could not recover in ejectment, for his admittance had no relation to the last legal surrender, but the legal title remained in the heir of the surrenderor,—the first testator. 7 East, 8.—Chitty.
[3 ] Femes-covert and infants may be admitted by their attorney or guardian; and, in default of their appearance, the lord may appoint a guardian or attorney for that purpose. If the fines are not paid, the lord may enter and receive the profits till he is satisfied, accounting yearly for the same upon demand of the person or persons entitled to the surplus; but no forfeiture shall be incurred by infants or femes-covert for not appearing, or refusing to pay fines. 9 Geo. I. c. 29.—Chitty.
[(c) ] Cro. Jac. 568.
[(d) ] Bro. Abr. tit. Tenant per copie, 10.
[(e) ]Feud. l. 2, t. 2.
[4 ] To prevent the recurrence of the evils which frequently resulted from the devisors of copyhold lands omitting, either from negligence or ignorance, to surrender them to the uses of their wills, it was enacted by 55 Geo. III. c. 192, that where, by the custom of any manor in England or Ireland, any copyhold tenant thereof may by will dispose of or appoint his copyhold tenement, the same having been surrendered to such uses as shall be by such will declared, every disposition or charge of any such copyholds, or of any right or title to the same, made by any such will by any person who shall die after passing this act,—viz., 12th July, 1815,—shall be as effectual, although no surrender is made to the use of such will, as it would have been had such surrender been made. But the claimants under the devise must pay the stamp-duties, fees, &c. incident to a surrender, as well as those upon admission. Before the passing of this act, equity would relieve in favour of a wife or younger children, (but not of a brother, grandchildren, or natural children,) or where copyholds were devised for the payment of debts. See 1 Atk. 387. 3 Bro. 229. 1 P. Wms. 60. 2 Ves. 582. 6 Ves. 544. 5 Ves. 557. But where a surrender by a married woman to the use of her will is required by the particular custom of the manor, the want of a surrender is not aided; for the 55 Geo. III. c. 192 only aids the want of a formal surrender, and the surrender in this case is matter of substance, and requires to be accompanied by the separate examination of the wife. 5 Bar. & Ald. 492. 1 Dowl. & R. 81 S. C. Where copyhold premises have been surrendered to such uses as the owner shall appoint, the appointment may be made by will, and a surrender to the uses of such will was not necessary even before this statute. 3 M. & S. 158.—Chitty.
By the Wills Act, 1 Vict. c. 26, all copyhold lands are made devisable, whether there is or is not a custom to that effect.—Kerr.
[(f) ] Co. Copyh. 36.
[(g) ] Old Nat. Brev. t. briefe de recto clauso. F. N. B. 13.
[(h) ]T. tenir en franke fee.
[(i) ] See book iii. page 166.
[5 ] A fine of lands in ancient demesne levied in the court of Common Pleas is not absolutely void, but voidable by the lord; and it seems, according to Mr. Preston, copyhold lands are within the same rule; but it is clearly more correct to levy the fine, or suffer the recovery in the lord’s court. See 1 Prest. on Conv. 266, 267; and see 3 T. R. 162.—Chitty.
[6 ] A surrender does not destroy a contingent remainder. 2 Saund. 386. It receives the same construction as deeds operating by the statute of uses; and therefore cross-remainders cannot be implied. 1 Saund. 186, b. A surrender may be by him in remainder. 1 Saund. 147, a., n. 3. The surrenderee is an assignee within the equity of the statute Hen. VIII. 1 Saund. 241, a. His title begins from the date of the surrender, by relation; and therefore, after he has been admitted, he may lay his demise in ejectment on the day of surrender, and recover mesne profits therefrom. 1 T. R. 600. 2 Saund. 422, c., n. 2. But an equity of redemption cannot be surrendered, (2 Saund. 422, d., n. b.;) and devisees of contingent remainders on a copyhold not being in the seisin cannot make a surrender of their interest, nor will such a surrender operate against them or their heirs. 11 East, 185. A feme-covert who surrenders copyhold ought previously to be examined, separately from her husband, by the steward of the manor, or before two customary tenants by special custom; and if it be to such uses as she shall by will appoint, a paper purporting to be a will, though made by her, living her husband, is a good execution. 4 Taunt. 294.—Chitty.
[7 ] The surrenderee would not now be considered a trespasser; for it has been determined that he may recover in an ejectment against the surrenderor, upon a demise laid after the surrender, where there was an admittance of such party before trial; but as the surrenderor after the surrender is considered merely a trustee for the nominee, it should seem that the decision would have been the same even if the subsequent admittance had not been proved. 1 T. R. 600. 5 Burr. 2764. 16 East, 208.—Chitty.
[(k) ] 2 Roll. Rep. 107.
[(l) ] Co. Copyh. 39.
[8 ] Of course it will be understood that a surrender by a copyholder to the use of his own will is always revokable; and if a copyholder surrenders conditionally, and satisfies the condition before admittance of the nominee, the copyholder may surrender again absolutely, without taking a new estate by the admittance and surrender of the nominee in the conditional surrender, and his own subsequent admittance. Hargrave’s note to Co. Litt. 62, a.—Chitty.
[(m) ] Ibid. 40.
[(n) ] Co. Litt. 62.
[(o) ] Co. Copyh. 40.
[9 ] But now, by the statute 4 & 5 Vict. c. 35, every surrender and deed of surrender which the lord shall be compellable to accept or shall accept, and every will and codicil a copy of which shall be delivered to the lord, his steward or deputy steward, out of court, or at a court in the absence of a homage, shall be entered in the court-rolls by such lord, steward, or deputy, and such entry shall be of equal effect with an entry made in pursuance of a presentment; and presentment of the surrender, will, or other matter on which an admittance is founded shall not be essential to the validity of the admittance. The statute also declares the ceremony of presentment to be not essential to the validity of an admittance, and further enacts that admittance may be made at any time or place without holding any court for the purpose.—Kerr.
[10 ] The admittance of the particular tenant is the admittance of the remainderman; but the latter may be admitted by himself. 1 Saund. 147, a., n. (3) (4.) It relates when made to the time of surrender. 1 T. R. 600. 2 Saund. 422, c., n. 2. A surrenderee cannot forfeit for felony before admittance, for till then the estate is in the surrenderor. 2 Saund. 422, c., n. 2. The lord’s grantee has title without it. 2 B. & A. 453. 2 Saund. 422, c. If the surrenderee dies before admittance, his heir is entitled to it, and the widow to free-bench. 2 Saund. 422, d. One effect of admittance is that a copyholder after it is estopped, in an action by the lord for a forfeiture, from showing that the legal estate was not in the lord at the time of admittance. 5 B. & A. 626. 1 Dowl. & R. 243.—Chitty.
[(p) ] Ibid. 41.
[(q) ] 8 Rep. 63.
[(r) ] 4 Rep. 27. Co. Litt. 59.
[(s) ] 4 Rep. 27. 1 Rep. 140.
[(t) ] 4 Rep. 23.
[11 ] It has been held that, the heir having as complete a title without admittance as with it against all the world but the lord, the court of King’s Bench will not grant a mandamus to compel the lord to admit him. 2 T. R. 197. But in a more recent case the court granted a mandamus in favour of an heir. 3 Bar. & Cres. 172. 4 Dowl. & R. 492, S. C. If the lord refuse to admit, the surrenderee cannot have an action on the case against him, but may compel him in chancery (Cro. Jac. 368) or by mandamus. 2 T. R. 484. And the lord has no right to the fine till after admittance. Ib. 1 Watk. on Cop. 1st ed. 263, 287. 1 East, R. 632. Scriv. on Cop. 405, 406. But the surrenderor may bring an action for refusal to admit. 3 Bulst. 217.—Chitty.
[(u) ] Copyh. 41.
[12 ] But a person claiming to be admitted as heir need not tender himself for admittance at the lord’s court if he has been refused by the steward out of court. 2 M. & S. 87. A lord of the manor cannot seize a copyhold estate as forfeited pro defectu tenentis without a custom; and where he did so, even after three proclamations for the heir to come in, and granted it in fee to another, it was held an absolute seizure, not being warranted by custom, and could not be set up by the lord as a seizure quousque. 3 T. R. 162.—Chitty.