1. RIGHTS TO REAL CHAP. IV. is not properly the subject of a surrender, but should be transferred by assignment. (t) In general an estate of inheritance in PROPERTY. Copyhold is as devisable by the common law (u) as freehold is by the statute, but there is this material distinction, namely, that a will of copyhold need not be attested by three witnesses, (r) and it will pass lands purchased or acquired after the date of the will, if the testator's intent to that effect be clearly declared ; (y) for such a will is ambulatory till the death of the testator, and is considered as rather in the nature of an appointment or declaration of a use, than as a devise in the case of freehold. (y) There is, in strictness, another peculiarity, that there should be a surrender of the estate to the lord, to the uses of the will, either before or after the making of the will, though the omission is now supplied in certain cases by express enactment. (~) If there be no devise and no special custom to the contrary, the estate of inheritance of the deceased owner devolves in the same course of descent as in the case of freehold tenure. (a) And by custom, in many manors, whether the lands descend or are devised, the lord is entitled to a render of an heriot, as the best beast, or other goods (as the special custom may be) of the deceased owner. (b) And if the heir or other person, who may have claim, do not appear after three proclamations, at three successive general courts, the lord may by precept seize into his hands the land quosque, &c. that is, until the heir appear, but not as an absolute forfeiture, unless there be an express custom to warrant it. (c) Rights of lord. The lord of a manor cannot, without a special custom, enter the land of a copyholder to cut timber trees though going to decay, (d) or to dig for mines of coal or work the same, (e) and if he do he may be restrained by injunction, (ƒ) or sued by the copyholder or his tenant as a trespasser; (g) and an incumbrance created by the lord on his manor and other rights, cannot pre surrender to another person, who by the (t) 2 T. R. 484; Scriv. Cop. 267. (r) 7 East, 299 to 322, unless the terms (y) Cowp. 130. (2) 55 Geo. 3, c. 192; 7 Bingh, 275, when a Court of Equity, before this act, supplied the want of surrender in favour of a wife, or younger children, or creditors, and when this act will still not aid the (a) H. Chitty on Descents, 162. (c) 3 T. R. 162; Watkins on Copyholds, 239; H. Chitty on Descents, 165; 1 Scriven, 541, 342. (d) 4 Maule & S. 340; 2 B. & Adolp. 487; ante, 234. (e) 10 East, 189; W. Jones, 343; 15 Ves. 236; 17 Ves. 281; 2 B. & Adolph. 437. (f) Id. ibid. (g) 10 East, 189; 2 B. & Adolp. 437. judice a copyholder; (h) and the lord of a manor might be indicted for a forcible entry in the house or land of his copyholder. (1) In some respects, therefore, although there is not in copyhold that independence of tenure as in freehold, nor is the same, when acquired, of equal value, because the party is subject to the small incumbrance of quit rent, and cannot cut timber for sale, or absolutely demise for a term of years without license, nor open new mines, unless by special custom; yet in some other respects the title evidenced by the court rolls is more secure, and the expense of transfer is less than in freehold conveyance, and the heir and devisee may take it free from liability for debts of the last owner. It may be worthy of notice that copyholds are excepted out of the registry act. (k) We may here observe, that it has been held, that as the generality and vagueness of descriptions of copyhold property on the court rolls are so well known, a vendor of lands of copyhold tenure is not bound to show how the description on the court rolls is to be applied to the present state of the property, and that it suffices if he prove that the property as described has actually been enjoyed and passed under that description for upwards of sixty years. (1) CHAP. IV. I. RIGHTS TO REAL In case of copyhold as well as in freehold tenure, strips of Wastes adjoinland outside of old inclosures, and between them and an high- ing inclosures. way, are to be presumed to belong to the copyholder, although where such land forms part of a large open waste or common it might be otherwise. (m) It is treated as an unsettled point, whether an incroachment upon a waste, adjoining to the demised premises, by a lessee, without permission of the lord of the manor, or of the landlord, and uninterrupted possession thereof by such lessee for twenty years, shall give the lessee a possessory right thereto, or whether he shall be deemed to have inclosed the waste in right of the demised premises for the benefit of his landlord after the expiration of the term. (n) (h) 8 Co. 63 ; 1 Tho. Co. Lit. 657. (i) Gilb. Ten. 328, 329; 1 Tho. Co. Lit. 657, note D. (k) For Middlesex, 7 Ann, c. 20, s. 17. (1) 4 Russ. R. 267; and see Doe v. Pearsey, 7 B. & Cres. 304, which appears to establish that in copyhold tenure, land outside the external fence, and between the same and an high road, may be presumed to belong to the copyholder, and not to the lord. (m) 7 B. & Cres. 304; ante, 195. (n) Adams on Ejectm. 3d ed. 51, 52; 1 Esp. R. 460, 461; 2 Taunt. 160; 1 Taunt. 208; semble, that if such land CHAP. IV. quantities and Property. line of these. III. The Extent of Interest in these several things. We now arrive at the consideration of what are termed in law the estates, or quantities of interests which a person may have in the seveIII. The differ- ral kinds of real things before enumerated, of whatever tenure ent ESTATES or the same may be. The term "estate," we have seen, (o) is used in natures of INTE- two senses, the one of locality, and merely referring to the thing, RESTS in Real the other, (the sense now used,) importing the degree or extent of the interests which a person hath in lands, or in any other 1 General out- subject of property, and to this term (at least in conveyances by deed) some adjunct or expression should be added, in order to show the degree or extent of such estate or interest, or in other words, the time for which the grantee's estate is to continue, "to him and his heirs and assigns for ever," or, "to him and the heirs of his body;" or more specially when an estate tail special, "to him and the heirs of his body, by E. his wife, for ever;" or "to him and his assigns for the term of his natural life;" or "to him and his executors, administrators, and assigns for the term of 21 years," &c. by which words respectively an estate in fee simple, or in fee tail, or an estate tail special, or for life, or for years, may be created, and the grantee is said to have an estate in fee, or in tail, or for life, or for years, or on condition, &c., according to the adjunct words. (p) Frequently, though untechnically, the word "estate" is used merely as a local description, as "all my estate at Ashton," and in a will this would convey the fee to the devisee, unless expressly restrained by other words, (q) though it would be otherwise in a conveyance by deed. (r) With reference to the extent of interest, the term "real estate" imports that a party's interest is not less than for the term of his life; for a term of years, even for 1000 years, perpetually renewable, is a mere personal estate; (s) and so is any interest carved out of or created by the owner of such term, though it import to be an estate of freehold in point of duration. (t) A license, in strictness, creates no estate or interest whatever in real property, and therefore is not within the statute against frauds, (u) for which reason also a party having it can maintain no action of trespass. (r) The consideration of estates, in the legal sense, meaning the interest, as we now intend to use it, is divisible under several heads, as 1st. Whether the owner has an estate or interest of inheritance to him and his heirs generally for ever, or to him and particular heirs, as to him and the heirs of his body, either generally, not specifying any wife, or by a particular wife, termed in tail: or 2dly. A freehold interest, but only for life, or whether for his own life, or that of another, or as tenant in dower, or by the curtesy; or 3dly. A still less interest and estate, less than freehold, as only for a term of years, or the most inferior, as at will or by sufferance, which, however, are not real estates, but chattel interests in realty, though for a term of 2000 years. (y) It is essential, concisely to consider each of these; for though the full study of them constitute more peculiarly the learning and science of conveyancing, yet a practical knowledge of the leading rules is absolutely essential to all concerned in the administration of the poor laws, and many branches of the criminal law, and to every branch of the legal profession. We must also keep in view the highly important distinctions between legal and equitable interests, which will presently be more particularly examined. CHAP IV. I. RIGHTS TO REAL PROPERTY. tween an interest and a mere distinction be real property. authority over It is essential first to distinguish between what is an actual 2. Important interest in real property, and what is a mere power or authority to exercise a jurisdiction, or do some act upon, over, or to the same. This is a distinction in various respects of most extensive importance, for although persons may have full power and jurisdiction over land, yet if they have no legal interest therein, they cannot be considered as the occupiers thereof, and they are not rateable to the poor, nor would be entitled to vote in respect thereof; nor could support any action of trespass for any injury; nor would there be any implied right to compensation for the use of the land. (2) Thus where a statute authorized certain persons to make the river Avon navigable, and to maintain such navigation, and for those purposes to clear, scour and cleanse the same, and to dig and cut banks, and to build bridges, sluices, locks, &c. and to do all other necessary things, it was held that they could not be deemed the occupiers of the land covered with water, nor rateable to the poor in respect thereof, but had a mere easement in the watercourse, though they were liable to be rated in respect of a certain cut and lock, which they had made for the purposes of the navigation upon lands purchased by them. (a) So although commissioners of sewers have a very extensive jurisdiction over sewers and the banks of the adjacent lands and works relating to the same, yet it does not follow that they in legal contemplation have any (y) Ante, 84, note (a). (*) See in general Rex v. Thomas, 9 B. & Cres. 114; and the several cases there quoted, and Newcastle, Duke of, v. Clark, 2 J. B. Moore, 616; Rex v. Aire Naviga- (a) Rex v. Thomas, 9 B. & Cres. 114. CHAP. IV. interest in, or even actual or constructive possession of, the property over which they have jurisdiction; therefore commissioners of sewers cannot maintain an action of trespass against the commissioners of a harbour for breaking down a wall or drain erected by the former, as such commissioners, across a navigable river; because the authority to be exercised by such commissioners of sewers on behalf of the public does not vest in them such a property, or even possessory interest, as will enable them to maintain such action even against a wrongdoer: (b) and the same principle has been applied to persons authorized by statute to make and maintain a navigable river, and it was held that the proprietors of such navigation did not necessarily acquire such an interest in the soil in a bank excavated from a new channel made by them, for the first time, under the act, as would enable them to maintain trespass. (c) For the same reason, although the owners of a mere navigation have jurisdiction, to a limited extent, in the bed of the canal, and its banks, and locks, and drains, it was recently held that they have no interest in the soil, or any thing corporeal, therefore are not rateable to the relief of the poor, as occupiers of land; (d) and where an act, incorporating the Hull Dock Company, authorized them to make a dock, quays, wharfs, &c., and which were to be vested in them for certain public purposes, and giving them right to certain wharfage for goods landed or discharged upon such quays or wharfs, it was held, that as the premises were only vested in the company for the purposes of the act, they had no common law right to a compensation for the use of them, and that as the statute gave them no right to claim wharfage for goods shipped off from other quays, they could not maintain any action upon a supposed contract to pay wharfage for such use of the wharfs, though, if they had had a common law interest in the wharfs, such a contract would have been implied. (e) So, where it appeared that the plaintiff in an action was a person who had assigned over all his effects under an insolvent act, and that his wife continued to reside in his house, retaining some of the furniture, and that the wife having been absent for two days, and no one being in the house, the defendant committed a trespass in an attempt to distrain for rent; it was held that the wife had not a sufficient possession to enable her husband to sue in trespass, he neither having any legal interest, nor any actual or constructive possession; (f) and where the plaintiff, having built a chapel, conveyed the same to the (b) Newcastle, Duke of, v. Clark, 2 J. B. Moore, 666. (c) Hollis v. Goldfinch, 1 B. & Cres. 205; 2 Dowl. & R. 316, S. C. (d) Rex v. Aire Navigation, 3 B. & Adolph. 139. (e) 8 B. & Cres. 42. (f)6 Bing. 515. |