Roe v. Jeffrey, 2 Man. & Selw. 92. Carr v. Tit. 38. c. 4. A Custom to bar by Sur leaving B. his son, and M. his daughter. B. surrendered the copyhold for payment of his debts. Lord Harcourt was of opinion, that the copyhold being entailed by the articles, could not afterwards, by a bare surrender, be defeated, without a particular custom had been found to warrant it. But this decree was reversed by Lord Cowper, who said, that prima facie it must be taken that a surrender by such tenant in tail will bind his issue, unless a particular custom were found that there ought to have been a recovery. 29. In a subsequent case, three Judges against Lord Ch. J. Willes held, that where copyholds were entailable, and the custom did not prescribe any mode of barring the entail, it might be done by surrender. But the Lord Ch. Justice thought, that in such a case a recovery was the proper mode. 30. A surrender to the use of a will not only effectuates the will, but also operates as a bar to an estate tail, of which an account will be given in the next Title. 31. A custom of barring estates tail in copyholds render or by by surrender, may subsist concurrently with a custom Recovery, is to bar such estates by a recovery in the lord's court. good. Everall v. 1 Wils. 26. 2 Stra. 1197. 32. In ejectment for a copyhold estate, a case was made for the opinion of the Court, wherein it was stated, that within the manor of Collingham, where the lands lay, there were two customs of barring estates tail, which had been used within the said manor time out of mind; one was by common recovery, other by a surrender in fee to a purchaser. That Edward Smalley, on the marriage of his son Robert, surrendered the premises to his son, and Susannah his wife, and their heirs in general tail. They had issue the Edward Smalley, their son and heir, who after their deaths became tenant in tail, and surrendered the premises, according to the custom of the manor, to John Mills and his heirs in fee, who dying, left Robert Mills his heir, and plaintiff's lessor. The defendant was Henry Smalley, son and heir of Edward Smalley, who surrendered the premises to John Mills as aforesaid. And whether the defendant Edward Smalley, the heir in tail, was barred by the surrender in fee, where there was also a custom within the same manor of barring by recovery, was the question. After two arguments, it was unanimously resolved by the Court, that the heir in tail was barred. Lord Ch. J. Lee." It has been said at the bar, that a custom in a manor to bar a tail by surrender, ought only to be allowed ex necessitate, i. e. when in the same manor there is no usage to bar by a recovery. There is, indeed, great diversity in the books as to barring copyhold entails, but in none of them can I find any case to warrant the distinction. The latter opinion of Judges is, that in manor courts, where a real action can be brought, a recovery in such court will be a good bar. I own I can see no reason why the custom to bar by surrender should not be good. But it is objected to barring entailed copyholds by recovery; for recompence in value does not extend to copyholds, the issue in tail of copyholds not being barred in respect of the recovery in value; but to prevent the inconvenience of perpetuities, these two customs may well stand together, and are but different ways of barring the entail; and I think the surrender the best." Chapple, Just. to the same effect." And the customs must be taken to be both coeval; we cannot say which is prior; they seem equally convenient, to prevent perpetuities." Wright, Just." It seems to be agreed by the counsel on both sides, that an entail of a copyhold may be barred by a recovery, or by a surrender in fee, within a manor, where there is no custom for barring by recovery; but it is 'insisted on one side, that these two customs cannot stand together. It has been a controverted question, since I attended this bar, whether copyholds could be entailed; it is now at this day said they may, by custom co-operating with the statute De donis; but this is quite new to me. The statute De donis created no new estate. Copyholders are no more than tenants at will; and it is by the will of the lord, and his mere consent only, that they are permitted to limit their copyholds in this or that way, either by surrender, or as the custom happens to be. And surely the lord, who of his mere will permits a limitation to I. S. and the heirs of his body, may permit I. S. to alien the same by surrender. Nobody ever thought that copyholds were within the statute De donis. Barring entails in copyholds has been much talked of, but I think there is no such thing: it is only a way invented and permitted by the lord, to get rid of the entail; the true reason of the issue in tail being barred is the recovery over in value; now there can be no such thing in a copyhold. I think the surrender is the better way, if the lord permits it, because cheaper." Denison, Just.-"Nothing more clear than that tenant in tail of a copyhold may bar his issue by surrender; and where there may be a real action, there 1 Inst. 60 b. may be a recovery. These are only two different conveyances: and it might as well be said that at common law, where there is a fine, that will bar the issue as well as the recovery, therefore one of them must be void. A surrender, I think, is a more natural way of conveying copyholds than a recovery, Doe v. and I cannot see any use a recovery is of, but only Truby, to create greater expence." 33. A grant of the freehold of a copyhold estate, A Grant of to a person having an estate tail in such copyhold, will destroy will operate so as to extinguish and destroy the estate an Estate tail. 2 Black. R. 944. S. P. the Freehold Tail. Turner, 174. 34. A person being tenant in tail male of a copy- Parker v. hold estate, remainder to himself in fee, purchased 1Vern. 393the freehold of the copyhold from the lord, and then 458. sold the land. The Court was of opinion, that the 2 Ca. in Cha. purchaser of the freehold should attract the other estate, which was but at will. And after taking time to consider of it, decreed accordingly, that the purchaser should enjoy against the issue in tail. Green, 35. A copyholder in tail accepted a grant from Dunn v. the lord of the manor of the freehold and fee simple gr. Wms. 9. of the land, to him and his heirs, and died indebted by bond, wherein his heirs were bound. On a bill brought by the bond creditor. for satisfaction out of the assets left by the obligor, the question was, whether the premises were assets by descent, and liable to the bond? Lord Macclesfield, after time taken to consider of it, thus delivered his opinion: "Unless it be expressly found that the custom of the manor allows of entails, then this is a fee conditional, and plainly merged by the grant of the freehold in fee: but supposing the custom of the manor does warrant entails, yet the copyhold is extinguished, because in the eye of the law that is but an estate at will, and must be merged by the grant of the freeVOL. V. Rr Vide Blake v. Blake, Tit. 3. c. 1. § 13. Challoner v. 2 Ves. Jun. hold. The premises by such grant are severed from the manor, consequently the custom of the manor cannot corroborate the legal estate at will. The copyholder cannot hold of himself, and the copyhold, though entailed, is swallowed up in the greater estate of the freehold: and as the tenant, after such time as he took the grant, did not himself continue a copyholder, so his son, on the descent of the freehold, is likewise no copyholder; which may be said from son to son, ad infinitum. Moreover, if the entail of the copyhold be not extinguished, it will be a perpetuity; since the only proper way of barring the entail of a copyhold is, by recovery in the lord's court: but after such severance as in the present case, no recovery can be suffered in the lord's court." 36. At the end of the above case there is a note, in which it is said: "If A. be copyholder in tail, remainder to B. in fee, and A. takes a grant of the freehold from the lord, to him and his heirs, and dies without issue, is not B., in whom there was once a vested remainder in fee of the copyhold premises, entitled to the same ?" In answer to this Mr. Cox says: "With respect to the quere made in the note above, it seems that the remainder-man could have no equity against the tenant in tail, who had power to bar the remainder, one way or other, upon the principles of Cann v. Cann, 1 Vern. 480." 37. This doctrine has been confirmed in the following modern case. W. Murhall surrendered a copyhold to the use of himself and his wife for their lives, and the life of the survivor, remainder to the use of William, their eldest son in tail, remainder to John, their second son in tail, remainder to his third and other sons in tail. W. Murhall, the eldest son, died without issue; John |