The freehold is in the lord.
(k) 1 Watk. Cop. 331; 1 Scriv. Cop. 526. See Doe d. Grubb v. Earl of Burlington, 5 Burn. & Adol. 507.
(l) Britt. 164 b, l65a. See ante, p. 125.
(m) 2 Scriv. Cop. 665.
(n) Stephenson v. Hill, 3Burr. 1278; Doe d. Reay v. Huntington, 1 East, 271; Doe d. Cook v. Danvers, 7 East, 299; Burrell v.
Dodd, 3 Bos. & Pul. 378; Thompson v. Harding, 1 C. B. 940.
(o) See Bract, lib. 4, fol. 208 b, 209 a; Co. Cop. s. 32, Tr. p. 57. In Stephenson v. Hill,3 Burr. 1278, Lord Mansfield says, that copyholders bad acquired a permanent estate in their lands before these persons bad done so. But he docs not state where he obtained his information.
Freehold in the tenant.
(p) Doe d. Reay v. Huntington, 4 East, 271, 273; Stephenson, v. Hill, 3 Burr. 1277, arguendo; Duke of Portland v. Hill, V.-C. W., Law Rep. 2 Eq. 765.
(q) Doe v. Danvers, 7 East, 299, 301, 314.
(r) Burrel v. Dodd, 3 Bos. & Pul. 378, 381; Doe v. Dancers, 7 East, 320, 321.
(s) Sir Edward Coke, Co. Litt. 59 b; Sir Matthew Hale, Co. Litt.
59 b, n. (1); Sir W. Blackstone, Considerations on the Question, etc.; Sir John Leach, Bingham v. Woodgate, 1 Russ. & Mylne, 32, 1 Tamlyn, 138. Tenements within the limits of the ancient borough of Kirby-in-Kendal, in Westmoreland, appear to be an instance; Busher, app., Thompson, resp., 4 C. B. 48. The freehold is in the tenants, and the customary mode of conveyance to show that the question, whether the freehold is in the lord or in the tenant, is to be answered, not by an appeal to learned dicta or conflicting decisions, but by ascertaining in each case whether the well-known rights of freeholders, such as to cut timber and dig mines, are vested in the lord or in the tenant.
It appears then that, with regard to the lord, a copyholder is only a tenant at will. But a copyholder, who has been admitted tenant on the court rolls of a manor, stands, with respect to other copyholders, in a similar position to a freeholder who has the seisin. The legal estate in the copyholds is said to be in such a person in the same manner as the legal estate of freeholds belongs to the person who is seised. The necessary changes which are constantly occurring of the persons who from time to time are tenants on the rolls, form occasionally a source of considerable profit to the lords. For by the customs of manors, on every change of tenancy, whether by death or alienation, fines of more or less amount become payable to the lord. By the customs of some manors the fine payable was anciently arbitrary; but in modern times, fines, even when arbitrary by custom, are restrained to two years' improved value of the land after deducting quit rents (t). Occasionally a fine is due on the change of the lord; but, in this case, the change must be by the act of God and not by any act of the party (u). The tenants on the rolls, when once admitted, hold customary estates analogous to the estates which may be holden in freeholds. These estates of copyholders are only quasi freeholds;• but as nearly as the rights of the lord and the custom of each manor will allow, such estates possess the same incidents as the freehold estates of which we have already spoken. Thus there may be a copyhold estate for life; and some manors admit of no other estates, the lives being continually renewed as they drop. And in those manors in which estates of inheritance, as in fee simple and fee tail, are allowed, a grant to a man simply, without mentioning his heirs, will confer only a customary estate for his life (v). But as the customs of manors, having frequently originated in mere caprice, are very various, in some manors the words "to him and his," or "to him and his assigns," or "to him and his sequels in right," will create a customary estate in fee simple, although the word heirs may not be used (x).
Copyholders, when admitted, in a similar position to freeholders having the seisin.
Customary estates analogous to freehold.
(t) 1 Scriv. Cop. 384.
(u) 1 Watk. Cop. 285.
It will be remembered that, anciently, if a grant had been made of freehold lands to B. simply, without mentioning his heirs, during the life of A., and B. had died first, the first person who entered after the decease of B. might lawfully hold the lands during the residue of the life of A. (y) And this general occupancy was abolished by the Statute of Frauds. But copyhold lands were never subject to any such law (z). For the seisin or feudal possession of all such lands belongs, as we have seen (a), to the lord of the manor, subject to the customary rights of occupation belonging to his tenants. In the case of copyholds, therefore, the lord of the manor after the decease of B. would, until lately, have been entitled to hold the lands during the residue of A.'s life; and the Statute of Frauds had no application to such a case (b). But now, by the act for the amendment of the laws with respect to wills (c), the testamentary power is extended to copyhold or customary estates pur autre vie (d); and the same provision, as to the application of the estate by the executors or administrators of the grantee, as is contained with reference to freeholds (e), is extended also to customary and copyhold estates (f). The grant of an estate pur autre vie, in copyholds, may, however, be extended, by express words, to the heirs of the grantee (g). And in this event the heir will, in case of intestacy, be entitled to hold during the residue of the life of the cestui que vie, subject to the debts of his ancestor the grantee (h).
Estate for life.
Estate pur autre vie.
(v) Co. Cop. s. 49, Tr. p. 114. See ante, pp. 18, 140. (x) 1 Watk. Cop. 109. (y) Ante, p. 20.
(z) Doe d. Foster v. Scott, 4 Barn. & Cress. 706; 7 Dow. & Ryl. 190.
(a) Ante, p. 337.
An estate tail in copyholds stands upon a peculiar footing, and has a history of its own, which we shall now endeavour to give (i). This estate, it will be remembered, is an estate given to a man and the heirs of his body. With regard to freeholds, we have seen (k) that an estate given to a man and the heirs of his body was, like all other estates, at first inalienable; so that no act which the tenant could do could bar his issue, or expectant heirs, of their inheritance. But, in an early period of our history, a right of alienation appears gradually to have grown up, empowering every freeholder to whose estate there was an expectant heir to disinherit such heir, by gift or sale of the lands. A man, to whom lands had been granted to hold to him and the heirs of his body, was accordingly enabled to alien the moment a child or expectant heir of his body was born to him; and this right of alienation at last extended to the possibility of reverter belonging to the lord, as well as to the expectancy of the heir (l); till at length it was so well established as to require an act of parliament for its abolition. The statute De donis (m) accordingly restrained all alienation by tenants of lands which had been granted to themselves and the heirs of their bodies; so that the lands might not fail to descend to their issue after their death, or to revert to the donors or their heirs if issue should fail. This statute was passed avowedly to restrain that right of alienation, of the prior existence of which the statute itself is the best proof. And this right, in respect of fee simple estates, was soon afterwards acknowledged and confirmed by the statute of Quia emptores (n). But during all this period copyholders were in a very different state from the freemen, who were the objects of the above statutes (o). Copyholders were most of them mere slaves, tilling the soil of their lord's demesne, and holding their little tenements at his will. The right of an ancestor to bind his heir(p), with which right, as Ave have seen (q), the power to alienate freeholds commenced, never belonged to a copyholder (r). And, until the year 1833, copyhold lands in fee simple descended to the customary heir, quite unaffected by any bond debts of his ancestor by which the heir of his freehold estates might have been bound (s). It would be absurd, therefore, to suppose that the right of alienation of copyhold estates arose in connexion with the right of freeholders. The two classes were then quite distinct. The one were poor and neglected, the other powerful and consequently protected (t). The one held their tenements at the will of their lords; the other alienated in spite of them. The one were subject to the whims and caprices of their individual masters; the other were governed only by the general laws and customs of the realm.