24. So strict is the law in this respect, says the Ten. 199. same author, that if the rent be reserved in silver, where it anciently was in gold; or payable at two feasts, where anciently it was payable at one; or if two copyholds escheat, one usually demised for 20 shillings and the other for 10 shillings, and the lord demises both for 30 shillings; it is not good. 25. With respect to the estate which the lord may 1 Inst. 52 b. grant, it has been resolved in many cases, that a custom enabling the lord to grant greater estates, v. Tedd, will also enable him to grant lesser ones. Thus Gravenor where the custom of the manor was that copyholds 4 Rep. 23 a. might be granted in fee simple; a grant to one and his heirs of his body was held to be good. For whether it was a fee simple conditional, or an estate tail; it was within the custom. So the lord might grant for life, or for years, by the same custom; for an estate in fee simple included all. Barnes, 1 Roll. Ab. 26. The custom of a manor was to grant copyholds Stanton v. in fee or for life solummodo ea capienti extra manus Cro. Eliz. domini. A grant was made to one for life, remainder 373. in tail, remainder in fee. It was objected, that it 511. ought to be an immediate taking, therefore the remainder was void; also that the custom did not warrant any estate but for life, and in fee. The Court resolved, that the grant was good enough; and that the custom that it should be granted solummodo ea capienti was void. 27. If customary land has been always granted in Kemp v. Carter, fee, and upon an escheat the lord grants it for life, 1 Leon. 55. it will be good; for the custom which enables him to grant in fee, will enable him to grant for life. After the death of the grantee for life, the lord may grant the same in fee; for the grant for life was no interruption of the custom. Ven v. 1 Roll. Ab. 511. Downs v. Smartle v. 6 Mod. 63. 28. If the custom of the manor be, that copyholds may be granted for three lives, an estate may be granted to three persons, for the lives of two; for this is not a greater estate than for three lives. 29. It was found by special verdict, that the land was ancient copyhold, demisable for one or two lives; that it was granted by copy to J. Downes, the husband of the plaintiff, habendum to him for life, and to the plaintiff durante viduitate sua. The question was, if this were warranted by the custom, for the wife's estate, for it was no absolute, but a limited estate. All the justices held, without any argument, that it was good; for when the custom warranted the greater estate for life to be made, it warranted the lesser estate; especially here, because this was also an estate for life, but limited, and as it were conditional. 30. By the custom of the manor of Tregoar in Cornwall, customary lands are demisable by copy of court-roll, to two or three persons, for term of their lives, and the life of the longest liver of them, habendum successive sicut nominantur in charta, &c. et non aliter and the person first named in the grant enjoys the tenements to him alone during his life, and so does the second and third; and the lord is entitled to a heriot of every such person succesively dying seised. The lord granted the tenements in question to one Thomas Norton and his assigns, habendum to him and his assigns, for the lives of J. P., W. W., and of the said T. Norton, and of the longer liver of them successive. The question was, whether this grant was warranted by the custom. It was contended that it was void in toto, not being pursuant to the custom; for the grant was to Thomas Norton and his assigns, habendum for his own life, and the lives of J. P. and W. W., which varied from the custom; and though the grant was of an inferior interest than was allowed by the custom, yet it being prejudicial to the lord, in respect of his tenure, and of his services, the custom would not warrant it. In this case T. Norton was tenant for his own life, and the lives of J. P. and W. W.; for they were not named to take an interest, but only added by way of limitation of estate; so that upon the death of T. Norton, if either of the two other lives were in being, there would be an occupant of the copyhold, which would be an injury to the lord, when a stranger would have power to come in without his consent. Lord Chief Justice Holt said, the custom consisted of three parts; 1. As to the constitution of the estate granted, which must be by copy of court-roll. 2. As to the extent of the estate, which must not be above three lives. 3. As to the manner of the estate, which was different from the constitution of the law, by the operation of the custom; viz. to two or three, habendum succesivè sicut nominantur. When a custom enabled the lord to grant for three lives, he could grant for one life, for it was within the custom. The cases cited in support of the grant were in point. Where the custom was to grant in fee, yet the lord might grant to one for life, with a remainder to another in tail, as in the case of Stanton v. Barnes; and it was good, ante § 26. though the custom was to grant an entire estate in fee simple. So where the custom was to grant for life, a grant durante viduitate was good; as in the case of Downes v. Hopkins, though it had a different ante § 29. determination; because it was a lesser estate, and so within the custom. Here the grant was only to T. Norton during his own life, and the lives of the other two; the consequence of which was, that if'T. N. died living the cestuis que vie, since there could be no oc Copyhold Grants take place of many other Estates. Cham v. 1 Leon. 16. 4 Rep. 24 a. 8 Rep. 63 b. Co. Cop. $34. I Inst. 58 b. n. 6. Sands v. 2 Leon. 109. cupant of a copyhold estate, the lord upon his death would have his heriot custom, and also the land. So that it would be no inconvenience, though the lord had no heriot upon the death of the other two, because he would have the land itself. The Court was unanimously of opinion that the grant was good. 31. As copyhold grants derive their effect from the custom of the manor, and not from the estate of the lord, they are considered as paramount to, and will take place of, many other titles, which are prior to them in point of time. 32. A lord of a manor granted copyhold lands for three lives, and afterwards married. The lives determined during the coverture. The lord entered upon those lands, and kept them in his own hands. for some time; he then granted them out again by copy, and died. The wife of the lord claimed dower. It was resolved that the copyholder should hold the lands discharged of dower; because he was in by the custom, which was paramount to the title of dower. 33. Lord Coke says, if the heir, after the death of the ancestor, and before an assignment of dower to the widow, had granted lands by copy, the widow might avoid these grants; because instantly upon the death of the husband, her title to dower was complete, and nothing more was wanting to the confirmation of her interest. 34. Voluntary grants of copyholds will also take place of any prior charges or incumbrances created by the lord, who makes such grants. 35. The Earl of Westmoreland being seised in fee of the manor of Kennington, granted a rent-charge to Sir W. Cordell for life. He afterwards made a feoffment of the manor to Sir John Clifton, who made a voluntary grant of a copyhold to one Sands for life, according to the custom of the manor, the same being an ancient copyhold. The rent-charge being in arrear, a distress was made on the copyhold granted to Sands. After great difference of opinion, it seems 3 Leon. 59. to have been finally settled that the copyhold was Dyer, 270. not chargeable; because the estate of the copyholder 208. was derived from the custom, which was paramount 202. to the charge. 36. The same point is laid down by Lord Coke, who says, if the lord of a manor acknowledges a statute, and then grants lands by copy, and after the manor is delivered to the cognizee in extent, the grant by copy cannot by this be impeached. 37. Although, by an entry for a condition broken, prior estates and incumbrances are in general defeated; yet, copyhold grants form an exception, of which an account will be given hereafter. 2 Brown. Gilb. Ten. Co. Cop. § 34. VOL. I. Y ? |