(d) Sect. 3.
(e) Stat. 4 & 5 Vict. c. 35, ss. 88, 89, 90.
Provision in favour of infants, married women, lunatics and idiots.
(f) 1 Watk. Cop. 234; 1 Scriv. Cop. 355; Doe d. Bover v. True-man, 1 Barn. & Adol. 736.
(g) Stats. 11 Geo. IV. & 1 Will. IV. c. 65; and 16 & 17 Vict. c. 70, s. 108 et seq.
(h) Stats 11 Geo. IV. & 1 Will. IV. c. 65, ss. 3, 4; 16 & 17 Vict. c. 70, s. 108.
(i) Stats. 11 Geo. IV. & 1 Will.
IV. c. 65, s. 5; 16 & 17 Vict. c. 70, s. 108, 109.
(k) Stats. 11 Geo. IV. & 1 Will. IV. c. 65, ss. 6,7; 16 & 17 Vict. c. 70, s. 110.
(l) Stats. 11 Geo. IV. & 1 Will. IV. c. 65, s. 8; 16 & 17 Vict. c. 70, s. 111.
(m) Stats. 11 Geo. IV. & 1 Will. IV. c. 65, s. 9; 16 & 17 Vict. c.
Although mention has been made of surrenders to the use of the surrenderee, it must not, therefore, be supposed that the Statute of Uses (n) has any application to copyhold lands. This statute relates exclusively to freeholds. The seisin or feudal possession of all copyhold land ever remains, as we have seen (o), vested in the lord of the manor. Notwithstanding that custom has given to the copyholder the enjoyment of the lands, they still remain, in contemplation of law, the lord's freehold. The copyholder cannot, therefore, simply by means of a surrender to his use from a former copyholder, be deemed, in the words of the Statute of Uses, in lawful seisin for such estate as he has in the use; for the estate of the surrenderor is customary only, and the estate of the surrenderee cannot, consequently, be greater. Custom, however, has now rendered the title of the copyholder quite independent of that of his lord. When a surrender of copyholds is made into the hands of the lord, to the use of any person, the lord is now merely an instrument for carrying the intended alienation into effect; and the title of the lord, so that he be lord de facto, is quite immaterial to the validity either of the surrender or of the subsequent admittance of the surrenderee (p). But if a surrender should be made by one person to the use of another, upon trust for a third, the Court of Chancery would exercise the same jurisdiction over the surrenderee, in compelling him to perform the trust, as it would in the case of freeholds vested in a trustee. And when copyhold lands form the subject of settlement, the usual plan is to surrender them to the use of trustees, as joint tenants of a customary estate in fee simple, upon such trusts as will effect, in equity, the settlement intended. The trustees thus become the legal copyhold tenants of the lord, and account for the rents and profits to the persons beneficially entitled. The equitable estates which are thus created are of a similar nature to the equitable estates in freeholds, of which we have already spoken (q); and a trust for the separate use of a married woman may be created as well out of copyhold as out of freehold lands (r). An equitable estate tail in copyholds may be barred by deed, in the same manner in every respect as if the lands had been of freehold tenure (s). But the deed, instead of being inroiled in the Court of Chancery (t), must be entered on the court rolls of the manor (u). And if there be a protector, and he consent to the disposition by a distinct deed, such deed must be executed by him either on, or any time before, the day on which the deed barring the entail is executed; and the deed of consent must also be entered on the court rolls (x).
Statute of Uses does not apply to copy holds.
70, s. 112. See Doe d. Twining v. Musott, 12 Mee. & Wels. s:!2, 842, Dimes v. Grand Junction Carnal Company, 9 Q. B. 469, 510.
(n) Stat. 27 Hen. VIII. c. 10; ante, p. L63.
(o) Ante, p. 387.
(p) 1 Watk. Cop. 74.
As the owner of an equitable estate has, from the nature of his estate, no legal right to the lands, he is not himself a copyholder. He is not a tenant to the lord: this position is filled by his trustee. The trustee, therefore, is admitted, and may surrender; but the cestui que trust cannot adopt these means of disposing of his equitable interest (y). To this general rule, however, there have been admitted, for convenience sake, two exceptions. The first is that of a tenant in tail whose estate is merely equitable: by the act for the abolition of fines and recoveries (z), the tenant of a merely equitable estate tail is empowered to bar the entail, either by deed in the manner above described, or by surrender in the same manner as if his estate were legal (a). The second exception relates to married women, it being provided by the same act (b) that, whenever a husband and wife shall surrender any copyhold lands in which she alone, or she and her husband in her right, may have any equitable estate or interest, the wife shall be separately examined in the same manner as she would have been, had her estate or interest been at law instead of in equity merely (c); and every such surrender, when such examination shall be taken, shall be binding on the married woman and all persons claiming under her; and all surrenders previously made of lands similarly circumstanced, where the wife shall have been separately examined by the person taking the surrender, are thereby declared to be good and valid. But these methods of conveyance, though tolerated by the law, are not in accordance with principle; for an equitable estate is, strictly speaking, an estate in the contemplation of equity only, and has no existence anywhere else. As, therefore, an equitable estate tail in copyholds may properly be barred by a deed entered on the court rolls of the manor, so an equitable estate or interest in copyholds belonging to a married woman is more properly conveyed by a deed, executed with her husband's concurrence, and acknowledged by her in the same manner as if the lands were freehold (d ). And the act for the abolition of fines and recoveries, by which this mode of conveyance is authorized, does not require that such a deed should be entered on the court rolls.