devise, although the will was not re-published. Therefore, where a copyhold estate has been surrendered to the use of a will, and the purchaser is buying of the heir-at-law, who claims in the absence of any devise subsequently to the purchase by his ancestor (the case not falling within the late act), he must be satisfied that the estate did not pass under any general devise in a will prior to the purchase. The act for rendering a surrender to a will unnecessary (55 G. 3, c. 192), rendered it unlikely that this point should again arise, and now the doctrine is wholly confined to wills or codicils made before the 1st of January, 1838; for, by the late statute, whatever copyholds a man may have at his death, whether there is a custom to devise them or not, and whether he has been admitted or not, and of course, therefore, although not surrendered to the will, will pass by it." The power of devising land, Mr. Powell says,-1 Pow. Dev. by Jarman, p. 1.,-existed among the Saxons to the fullest extent. [Maule, J. It existed, I believe, from a little while after the invasion by Julius Cæsar, down to about the middle of the fourth century, while the civil law prevailed in this country. But, was land devisable a little before the statute 34 H. 8, c. 5?] Probably not. In Jones v. Roe d. Perry, 3 T. R. 88, 94, Lord Kenyon says: "I will not cite all the cases that may be mentioned on the subject, but will confine myself to two or three which have been determined by great authorities, after much consideration. The first I take from the argument in Selwin v. Selwin, by Mr. Norton, 1 W. Blac. 225; it is that of Goodtitle d. Gurnel v. Wood, T. 14 G. 2, C. B. In that case, there was a devise to A., and, if he dies before twentyone, then to B. and his heirs. B. died, and then the contingency happened by the death of A. before twentyone. Willes, C. J., said,―The question is, whether an executory devise be transmissible. Most of the old cases 1853. MATTHEW v. OSBORNE. 1853. MATTHEW v. OSBORNE. which hold that they are not devisable, were before executory devises were well established; but that doctrine is now exploded. Executory devises are not naked possibilities, but are in the nature of contingent remainders; and there is no doubt but that such estates are transmissible and consequently devisable.' Here, then, the chief justice gave a clear opinion that a possibility was devisable, That it is also transmissible, appears from the cases of King v. Withers, Rep. Temp. Talbot, 117, and Marks v. Marks, 1 Stra. 132. And the case of Selwin v. Selwin is a very strong authority on the question in this case," Roe d. Perry v. Jones, 1 H. Blac, 30, is the same in principle as Goodtitle d. Gurnel v. Wood. Before the late statute of wills, 7 W. 4 & 1 Vict. c. 26, a right of entry was not devisable, because it was supposed to be obnoxious to the law against maintenance and champerty. The interest in this case is similar to that which was held devisable in Cully v. Doe d. Taylerson, 11 Ad. & E. 1008, 3 P. & D. 539. The cases of Doe d. Vernon v. Vernon, 7 East, 8, and Doe d. Tofield v. Tofield, 11 East, 246, which will be relied on by the other side, are clearly distinguishable. In both those cases, it was necessary for the party dealing with his interest, to have recourse to the lord's court: the copyhold assurance was required to give effect to it. In both, the party devising had been tenant on the roll. [Jervis, C. J. Not in Doe d. Vernon v. Vernon. Lady Harriet there was precisely in the position of Gaitskell here, only Gaitskell was a surrenderee for a valuable consideration.] The court there were evidently addressing themselves to a case where there had been no antecedent surrender. A party cannot surrender, who has not himself been admitted. [Maule, J. The argument, in truth, amounts to this, that the interest which Gaitskell had was devisable because descendable.] That certainly is so. [Williams, J., referred to the note to Duppa v. Mayo, 1 Wms. Saund. 277 h, where it is said, 1853. MATTHEW v. OSBORNE. "It is not necessary in equity that the devisor should be seised of the legal estate in the lands at the time of making his will. If he have such an equitable interest in them at the time that he may call for a conveyance of the legal estate, it is sufficient, and the lands will pass by the will, if it appears to have been the testator's intent to devise them, although the legal estate be not conveyed to the testator until a subsequent period, or even not conveyed to him at all. This rule applies as well where the contract is for the purchase of copyhold, as of freehold estates: Davie v. Beardsham, 1 Chan. Cas. 39; Greenhill v. Greenhill, Pre. Chan. 320, 2 Vern. 679; Acherley v. Vernon, 9 Mod. 78; Potter v. Potter, 1 Ves. sen. 437; Rose v. Cunynghame, 11 Ves. 554. This shews that it is only an equitable right that passes.] Upon the evidence here, an admittance of Gaitskell Admittance may be premay be presumed. The transaction in question occurred sumed. seventeen years ago; since when, there have been three surrenders and two admittances. In Watkins on Copyholds, p. 268, it is said: "An admittance need not be in any particular form of words: for, if we look to the reason of the thing, we may conclude, says Chief Baron Gilbert,-Gilbert's Tenures, 282, 283,-that anything that expresses the lord's consent to the surrender should amount to an admittance; for, it is his consent only that is requisite after the surrender, to make the surrenderee a tenant; and, what matter is it whether that be done by dominus concessit, et admittus est, or by an act that amounts to as much?" [Jervis, C. J. If any presumption is to be made, the question should have been submitted to the jury. Maule, J. The agreement entered into at the trial, was, that, if Gaitskell's non-admittance was a ground of nonsuit, a nonsuit should be entered; otherwise the verdict should stand.] The defendant was in possession by his tenants, and therefore liable in trespass for the mesne profits: Hunter 1853. MATTHEW v. OSBORNE. Estoppel As to the want of admittance of Gaitskel!. v. Britts, 3 Campb. 454; Doe v. Harlow, 12 Ad. & E. 40; and notes to Aslin v. Parkin (2 Burr. 665), 1 Smith's Leading Cases, 269. No demand of possession, or entry, could be necessary, the parties standing in the position of mortgagor and mortgagee: Thunder d. Weaver v. Belcher, 3 East, 4-19; Doe d. Roby v. Maisey, 8 B. & C. 767, 3 M. & R. 107; Doe d. Fisher v. Giles, 5 Bingh. 421, 2 M. & P. 749. And, supposing a demand was necessary, the writ of possession was a sufficient demand. Then, the judgments by default in the ejectments were binding on all who had notice, and who might have come in and defended, and operates as an estoppel, and so entitles the plaintiff to retain the verdict for so much of the profits as have accrued since the date of the demise laid in the ejectment: Aslin v. Parkin, 2 Burr. 665. [Maule, J. That is where the action is brought against the party served with the ejectment. Jervis, C. J. If you proceed against one who has not been served, you must prove your title.] In Doe v. Huddart, 2 C. M. & R. 316, the estoppel was held not to be conclusive unless pleaded. [Jervis, C. J. In Doe v. Wright, 10 Ad. & E. 763, 2 P. & D. 672, the estoppel was replied.] Here, the plea concludes to the country, and therefore the estoppel could not be replied. [Willes. Sanderson v. Collman, 4 M. & G. 209, 4 Scott, N. R. 638, shews that an estoppel may be replied to a traverse concluding to the country.] Willes (with whom was Bramwell) was desired to confine himself to the main point, as to the necessity of an admittance of Gaitskell. It is not denied that a man having an interest in a copyhold may devise it: but, as a general rule, it is submitted that the legal title to a copyhold can only be acquired by surrender and admittance. All the writers who treat upon copyhold law so lay it down in plain and precise terms. The lord looks only to the legal title, and pays no regard whatever to trust estates. Blackstone says,-Vol. II, c. 22, p. 366, -"The fief, being of a base nature and tenure, is unalienable without the knowledge and consent of the lord. For this purpose it is resigned up, or surrendered into his hands. Custom and the indulgence of the law, which favours liberty, has now given the tenant a right to name his successor; but formerly it was far otherwise. And I am apt to suspect that this right is of much the same antiquity with the introduction of uses with respect to freehold lands; for, the alienee of a copyhold had merely jus fiduciarum, for which there was no remedy at law, but only by subpoena in Chancery. When, therefore, the lord had accepted a surrender of his tenant's interest, upon confidence to re-grant the estate to another person, either then expressly named, or to be afterwards named in the tenant's will, the Chancery enforced this trust as a matter of conscience; which jurisdiction, though seemingly new in the time of Edward IV (a), was generally acquiesced in, as it opened the way for the alienation of copyholds, as well as of freehold estates, and as it rendered the use of them both equally devisable by testament. Yet, even to this day, the new tenant cannot be admitted but by composition with the lord, and paying him a fine by way of acknowledgment for the licence of alienation." And see 1 Scriven on Copyhold, 216. Copyholds clearly are not within the statute 34 H. 8, c. 5. In Wagstaff v. Wagstaff, 2 P. Wms. 261, it was held, that, where a copyhold is surrendered to the use of a will, there need not be three witnesses to such will, because the copyhold passes by surrender, and not by the will; yet a trust or equity of redemption of a copyhold cannot pass by a will, unless attested by three witnesses. But, in a note to the 6th edit. it is said (a) See Bro. Abr. tit. Tenant per Copy de Court Roll, 10. P P P 2 : 1853. MATTHEW v. OSBORNE. |