(b) 1 Scriv. Cop. 63, 108; 1 Watk. Cop. 802.
(c) Stat. 7 Will. IV. & 1 Vict, c. 26.
(d) Sect. 3.
(e) Ante, p. 21. (f) Sect. 6.
(g) 1 Scriv. Cop. 64; 1 Watk. Cop. 303.
(h) Stat. 7 Will. IV. & 1 Vict, c. 26, s. 6.
(i) The attempt here made to explain this subject is grounded on the authorities and reasoning of Mr. Serjt. Scriven. (1 Scriv. Corp. 67 et seq) Mr. Watkins sets out with right principles, but seems strangely to stumble on the wrong conclusion. (1 Watk. Cop. chap. 4.)
(k) Ante, p. 35 et seq.
The statute De donis.
Copyholders anciently in a very different state from freeholders.
(l) Ante, p. 41.
(m) 13 Edw. I. c. 1; ante, p. 42.
(n) 18 Edw. I. c. 1.
(0) In the preamble of the statute De donis, the tenants are spoken of as feoffees, and as able by deed and feoffment to bar their donors, showing that freeholders only were intended. And in the statute of Quia emptores freemen are expressly mentioned.
(p) Ante, p. 77.
(q) Ante, pp. 37 - 39.
(r) Eylet v. Lane and Pers, Cro. Eliz. 380.
Now, with regard to an estate given to a copyholder and the heirs of his body, the lords of different manors appear to have acted differently, - some of them permitting alienation on issue being born, and others forbidding it altogether. And from this difference appears to have arisen the division of manors, in regard to estates tail, into two classes, namely, those in which there is no custom to entail, and those in which such a custom exists. In manors in which there is no custom to entail, a gift of copyholds, to a man and the heirs of his body, will give him an estate analogous to the fee simple conditional which a freeholder would have acquired under such a gift before the passing of the statute De donis (u). Before he has issue, he will not be able to alien; but after issue arc born to him, he may alienate at his pleasure (v). In this case the right of alienation appears to be of a very ancient origin, having arisen from the liberality of the lord in permitting his tenants to stand on the same footing in this respect as freeholders then stood.
As to manors where there is no custom to entail.
(s) 4 Rep. 22 a.
(t) The famous provision of Magna Charta, c. 20, - "Nullus liber homo capiatur vel imprisone-tur aut dissesiatur de aliquo libero tenemento suo, etc., nisi per legale judicium parium suorum vel per legem terra. Nulli vendemus, nulli negabimus, aut differemus rectum vel justiciam," - whatever classes of persons it may have been subsequently construed to include - plainly points to a distinction then existing between free and not free. Why else should the word liber have been used at all?
(u) Ante, pp. 36, 42; Doe d. Blesard v. Simpson, I Newt':' 333; 3 Man. & Gran. 929.
But, as to those manors in which the alienation of the estate in question was not allowed, the history appears somewhat different. The estate, being inalienable, descended, of course, from father to son, according to the customary line of descent. A perpetual entail was thus set up, and a custom to entail established in the manor. But in process of time the original strictness of the lord defeated his own end. For, the evils of such an entail, which had been felt as to freeholds, after the passing of the statute De donis (x), became felt also as to copyholds (y). And, as the copyholder advanced in importance, different devices were resorted to for the purpose of effecting a bar to the entail; and, in different manors, different means were held sufficient for this purpose. In some, a customary recovery was suffered, in analogy to the common recovery, by which an entail of freeholds had been cut off (z). In others, the same effect was produced by a preconcerted forfeiture of the lands by the tenant, followed by a re-grant from the lord of an estate in fee simple. And in others a conveyance by surrender, the ordinary means, became sufficient for the purpose; and the presumption was, that a surrender would bar the estate tail until a contrary custom was shown (a). Thus it happened that in all manors, in which there existed a custom to entail, a right grew up, empowering the tenant in tail, by some means or other, at once to alienate the lands. He thus ultimately became placed in a better position than the tenant to him and the heirs of his body in a manor where alienation was originally permitted. For, such a tenant can now only alienate after he has had issue. But a tenant in tail, where the custom to entail exists, need not wait for any issue, but may at once destroy the fetters by winch his estate has been attempted to be bound.
Alienation was anciently allowed.
When alienation was not allowed.
A custom to entail was established.
Forfeiture and re-grant.
(v) Doe d. Spencer v. Clark, 5 Barn. & Aid. 458. (x) Ante, p. 42. (y) 1 Scriv. Cop. 70.
(z) Ante, p. 45. (a) Goold v. White, 1 Kay, 683.
The beneficial enactment before referred to (b), by which fines and common recoveries of freeholds were abolished, also contains provisions applicable to entails of copyholds. Instead of the cumbrous machinery of a customary recovery or a forfeiture and re-grant, it substitutes, in every case, a simple conveyance by surrender (c), the ordinary means for conveying a customary estate in fee simple. When the estate tail is in remainder, the necessary consent of the protector (d) may be given, either by deed, to be entered on the court rolls of the manor (e), or by the concurrence of the protector in the surrender, in which case the memorandum or entry of the surrender must expressly state that such consent has been given (f).
The same free and ample power of alienation, which belongs to an estate in fee simple in freehold lands, appertains also to the like estate in copyholds. The liberty of alienation inter vivos appears, as to copyholds, to have had little if any precedence, in point of time, over the liberty of alienation by will. Both were, no doubt, at first an indulgence, which subse-(quently ripened into a right. And these rights of voluntary alienation long; outstripped the liability to involuntary alienation for the payment of the debts of the tenants; for, till the year 1833, copyhold lands of deceased debtors were under no liability to their creditors, even where the heirs of the debtor were expressly bound (g). And the crown had no further privilege than any other creditor. But now, all estates in fee simple, whether freehold, customary or copyhold, are rendered liable to the payment of all the just debts of the deceased tenant (h). Creditors who had obtained judgments against their debtors were also, till the year 1838, unable to take any part of the copyhold lands of their debtors under the writ of elegit (i). But the act, by which the remedies of judgment creditors were extended (j), enables the sheriff, under the writ of elegit, to deliver execution of copyhold or customary, as well as of freehold lands; and purchasers of copyholds thus became bound by all judgments which had been entered up against their vendors. But if any purchaser should have had no notice of any judgment, it would seem that he was protected by the clause in a subsequent act (k), which provided, that as to purchasers without notice, no judgment should bind any lands, otherwise than it would have bound such purchasers under the old law. By a later act, even if the purchaser had notice of a judgment, he was not bound unless a writ of execution on the judgment should have been issued and registered before the execution of his conveyance and the payment of his purchase-money; nor even then unless the execution should have been put in force within three calendar months from the time when it was registered (l). And now, as we have seen, the lien of all judgments of a date subsequent to the 29th of July, 1864, has been abolished altogether (m).