COPYHOLD Nature of ment. 3. Of the Enfranchisement of Copyholds. ANOTHER means by which the copyhold interest may be destroyed or annihilated, is by enfranchisement; which, as ment is only a mean of information to the lord; if the circumstance be already known to him, any further mean of instruction must be needless: if he therefore is aware of the event of which a forfeiture would be the consequence, he may avail himself of it without a presentment;" and see Cro. Eliz. 499; 1 Watk. Copyh. 347; but quare whether the law will permit the lord to decide for himself in a case where he is so immediately interested; it seems, therefore, at any rate to be "prudent and advisable to present such event in open court, that the matter may be apparent to others, and for the satisfaction of the remaining tenants as well as a sanction to the lord ;" and hence it has been determined, that even in the case of treason or felony, the lord is not justified (unless by special custom) in seizing till attainder; 2 Hawk. P. C. 49, s. 7; and so, if after presentment of the crime and seizure by the lord, the tenant be acquitted in due course of law, the forfeiture shall be discharged; Paginton v. Huet, Godb. 267; Jowry v. Pawly, 2 Keb. 466; and so also it has been said, if after conviction the offender be allowed benefit of clergy, sed quare, and see 1 Watk. Copyh. 348 (z). But a pardon after attainder will not discharge the forfeiture, for upon attainder the forfeiture is complete, and the king cannot remit the claims of the lord. Benson v. Strode, ub. sup. The courts of equity will in some cases relieve against the rigour of the custom of a manor incurring a forfeiture of the copyhold, where the cause of forfeiture is attended by any circumstances of injustice or hardship to the tenant, and the lord may receive a compensation; as, where a copyholder committed waste, from inadvertency and misconception of his power to cut down timber, and offered satisfaction; Thomas v. Porter, 1 Ca. Ab. 95; Nash v. Earl of Derby, 2 Vern. 537. So the court has relieved against forfeiture, by a quaker neglecting to perform suit and service, contrary to the tenets of his religion; Cudmore v. Laven, 2 Vern. 664; and so against an excessive fine demanded by the lord; Cowper v. Clerk, 3 P. Wms. 155. But where the case is not attended with any equitable circumstances entitling the copyholder to relief, the court ESTATE. the term imports, is the emancipating, as it were, the COPYHOLD copyhold, and converting it from a base to an allodial, or free tenure. This may be effected by the lord's either conveying the freehold of the copyhold lands to the tenant, or by releasing to him the rights and privileges of the seigniory; for the copyholder being tenant at the will of his lord, there subsists a privity between them, and the release therefore operates to enlarge his estate to a freehold. In considering the cases to be found on the subject of enfranchisement, the student must be careful not to confound them with those which effect an extinguishment of the copyhold interest, before treated of, which differs materially from the present head of enfranchisement; an enfranchisement being a total annihilation of the copyhold tenure, by which the copyhold lands become absolutely free, and can never again be holden by copy; but an extinguishment is, in many cases, only a partial destruction of the copyhold interest, which may again be revived by a new grant. The first and essential requisite to the enfranchisement of copyholds is, that the freehold of the land be conveyed to the copyholder (1), for it is by the union of the freehold and copyhold interest, that the enfranchisement is effected; which being incompatible with each other, the base or less 11 Inst. 270, b. will not interfere, for per Macclesfield, Chanc. that would be to alter the nature of the tenure, by which copyholds subsist, copyholders being formerly but tenants at will, and though now so mended by time as to be in the nature of an inheritance, yet they hold subject to the law and custom of the manor, which are in the nature of limitations of estates, determinable upon the breach of them; Peachey v. Somerset, Prec. Ch. 568; 2 Eq. Ca. Abr. 227. (1) Hence, to enfranchise a copyhold, a feoffment, bargain and sale, or other conveyance calculated to pass the freehold of the copyhold, seems proper to be used. See an enfranchisement by bargain and sale, i Watk. Copyh. 369; and post, Appx. VOL. III. ESTATE. COPYHOLD Worthy tenure becomes absorbed or merged in the free or more worthy estate; and therefore it matters not whether the conveyance be immediately from the lord, or first to a stranger, and such stranger convey to the copyholder, for in either case it will be an enfranchisement on the union of the tenancies'. A second requisite to an absolute and entire enfranchisement is, that the fee-simple of such freehold be conveyed, for if a less estate of freehold than the fee be conveyed, the union, though complete for the time, can last no longer than during the continuance of the interest conveyed, after which the land may again be granted to be holden by copy; this, therefore, will operate only as an extinguishment, or temporary suspension of the copyhold interest, and not as an enfranchisement. But the copyholder, who takes such conveyance of the fee, having but a partial interest, as for life, &c. will not prevent the enfranchisement being absolute, because, though the extinction of the copyhold interest, as to him, can be for no longer time than that which he has, yet the grant of the freehold in fee-simple by the lord, renders the land for ever incapable of being again holden of him by copy, since his whole estate is gone by the grant in fee-simple; such conveyance, therefore, operating as a perpetual suspension of the copyhold interest, must necessarily affect an enfranchisement. The enfranchisement will however be for the benefit of those in remainder, who on payment of a due proportion of the consideration-money paid for the enfranchisement, will be entitled to call upon the heir of the particular tenant to convey' (1). Lane's case, 2 Co. 16, b • See Rushley v. Conesby, 2 Rol. Abr. 271; Cro. Eliz. 459, S. C. t Wynne v. Cookes, 1 Bro. Rep. 515, 2d ed. (1) But the enfranchisement, in this case, will be for the benefit of those who would have been entitled to the copyhold, after the determination of the particular estate, and not pass a fee-simple to the particular tenant; whose heir at law will, therefore, be compellable to execute a convey ance ESTATE. So an enfranchisement may be affected by the lord's re- COPYHOLD leasing to the copyholder the manorial rights, for by this the lands are severed from the manor, and the tenure between the lord and his tenant dissolved, and he must thenceforth hold of the lord above, by the same services as the releasor held before, which was held by tenure ". And the lands, by enfranchisement, being separated from the manor, and held of the lord above by frank fee, it follows, that all customs which attached upon them, whilst holden of the manor, as a particular mode of descent, or the like, are lost, and they acquire all the properties and qualities of freehold tenures; and so also will all rights and privileges annexed to the copyholder's estate, as right of common, or the like, be of course extinguished as soon as the copyhold to which they were annexed is no more * (1). A further consequence of the merger which takes place of the copyhold in the freehold interest by enfranchisement, and the consequent union of the interest of the lord with that of the copyholder is seen to be, that all charges, if any, upon the interest of the lord at the time, are let in upon that of the copyholder (2). "See Lit. s. 147; Co. Lit. * Bradshaw v. Lawson, 4 102, b; and see 1 Watk. T. Rep. 443. Copyh. 367. ance to the remainder-man, on his paying a proportionate part of the consideration, if any, paid for the enfranchisement; see Wynne v. Cookes, 1 Bro. Ch. Ca. 515; Challoner v. Murhal, 2 F. Ves. 524. (1) Hence, if it be intended that these rights should be preserved, an express grant of them to the grantee of the land, must be inserted in the deed of enfranchisement; see Fort v. Ward, Moore, 667; and see also Cro. Eliz. 570, 794; though equity will, in some cases, give relief. See Styant v. Staker, 2 Vern. 250. (2) This has led to the practice of the copyholder, previously to the enfranchisement, claiming a term of years by the licence of the lord, to guard against any latent incumbrances on the lord, falling upon the tenant's estate after the enfranchisement. CHAP. II. OF ESTATES HOLDEN IN ANCIENT DEMESNE. ANCIENT ANOTHER, but more exalted species of copyholds sub DEMESNE. sisting at this day, is the tenure in ANCIENT DEMESNE (1), to which, as partaking of the ancient state of villainage, in the original nature of its services, and the freedom of the soccage tenure, with respect to their certainty, Bracton has given a compound name out of both, and calls it villanum soccagium, or villain-soccage, and the tenants villani privilegiati (2). Ancient demesnes are all those lands which, though now perhaps granted out to private subjects, were in the possession of the crown in the time of Edward the Confessor, and afterwards came to William the Conqueror, and were by him, about the twentieth year of his reign, set down in a book, called Domesday, under the title de terra regis; these were exempt from any feudal servitude, and were let out to husbandmen to plough and cultivate for supplying provisions and necessaries for the king's household and family; and for this purpose the tenants enjoyed certain 2 Blac. Com. 98. Bracton, lib. 4, tr. 1, c. 28. (1) Lands, which are next or most convenient to the lord's mansion-house, and which he keeps in his own hands for the support of his family, and for hospitality, are frequently called his demesnes, but these have not the same properties with ancient demesne. Spelm. 12. (2) This tenure, Lord Ch. Just. Holt says, is as ancient as any other, though he supposes that the privileges annexed to it commenced by some act of parliament, for that it cannot be created by grant at this day. 1 Salk. 57. |