COPYHOLD the descent of the entail', as in the case of freeholds, and will go to the paternal or maternal line, accordingly as it came from the one or the other. ESTATE. But though copyholds are governed by the rules of common law, concerning descents, yet they have not simpliciter all the collateral qualities of estates in feesimple at the common law. Thus they are not assets in the hands of the heir, either for specialty debts, or even debts to the Crown'; neither shall a woman be endowed of them, nor a man be tenant by the curtesy, unless by special custom; nor shall a descent take away an entry'. The reason of which, says Gilbert, seems to be, that the estates of copyholders were originally only estates at will, and at the absolute disposal of the lord, and there has not since been any provision made for those particular cases ". Also, if a man, seised of copyhold lands in right of his wife, surrender to the use of another in fee, this is no discontinuance, but the wife may enter after the death of her husband; for this is not like a feoffment at common 'law, which by its notoriety takes away the entry of the wife for the benefit of strangers, that they may not be at a loss against whom to bring their præcipes; but in case of copyhold lands, as there is no such inconvenience, the nature of the conveyance will not admit of such exposition ". So if tenant for life surrender to the use of another in fee, it is no forfeiture; for it may be seen by the courtrolls who is tenant; and therefore the stranger is at no loss to sue *. * Crowv.Baldwere,5 Durn. 141; Supplement, 59; Cro. & E. 104. Eliz. 717, cont. and see 32 H. 8, c. 28, s. 6, husband 64. • 8 Ves. 394. t 4 Co. 23, a. 30b; 6 Mod. disabled from discontinuing wife's estate. "Gilb. Ten. 160. * Moor, 753; 4 Co. 23. Nor are copyholds forfeitable by outlawry. Nor can COPYHOLD an elegit be had of them 2. An estate-tail in copyhold lands shall not pass by implication. If, therefore, a copyholder in fee surrender to the use of A. and B. and the longer liver of them, and for want of issue of A. the lands to remain to the youngest son of J. S. in this case A. has but an estate for life. Again, a man may surrender a copyhold estate to the use of his wife; for she takes the estate from the lord, as an instrument to convey the estate to her: and so it comes not within the reason of other cases, that they being but one person cannot contract; for he gives the estate to the lord, and he admits the feme to it. But the lord cannot make a grant of a copyhold to his own wife; for the grant is immediate, and the wife can only take from the husband by the intervention of a third per son c. Further, there can be no general occupant of a copyhold estate, because of the prejudice it would do the lord; and the freehold always being in the lord. And neither the stat. 29 Car. II. c. 3, s. 12, nor 14 Geo. II. c. 20, s. 9, appropriating estates pur autre vie, where there is no special occupant, extend to copyholds; and therefore if a copyholder being tenant pur autre vie die, the lord shall enter*. But there may be a special occupant as to A. and his heirs during the life of B. f which is no prejudice to the lord. ESTATE. COPYHOLD Who may grant copyholds. II. WHO MAY GRANT LANDS, TO BE HOLDEN BY COPY EVERY lord of a manor having a lawful estate in the manor, whatever that estate be, whether in fee, in tail, for life, years, or at will, may make voluntary grants of such copyhold lands as come into his hands by escheat or otherwise; and such grants shall bind those who have the inheritance of the manor; and whatever imbecilities the lord of the manor may be under, who made the grant; as whether idiocy, lunacy, or the like; it will be good, provided the ancient rent, customs and services be reserved, and he be lord de facto at the time (1); for these estates and grants derive not their force and effect from the lord's interest, (for if so it would determine with his estate,) but from the custom of the manor of which they have been Co. Lit. 58, b, and authorities cited in notes (3) and (4) there; 4 Co. 23, b; Co. Copyh. 79, 107; Moor, 147; 1 Rol. Abr. 499. S. P.; 8 Co. 63, b; Noy, 41. (1) The reason that the ancient services must be reserved is, that there being nothing but custom to warrant the grant by copy, the custom ought to be strictly pursued, as to the estate, customs, services and tenure, or else it is not the estate which was demised before. For though if there be a copyholder in fee, the lord may release part of the services without prejudicially affecting the copyholder's estate; yet in such case there is an estate in being which appears to be the old estate; but when the lord grants a new estate by copy, this being against common right, and warranted only by the custom, such custom to bind the heir must be strictly pursued. Co. Copyh. 107, 108; Bro. Tenant by Copy, 27; Gilb. Ten. 198. A person, therefore, who has but a particular estate in the manor, cannot grant a copyhold by parcels, or demise part, and retain the residue himself. Per Popham, in Gray v. Kay, Cro. Eliz. 662. Sed quære; and vide 1 Watk. Copyh. 18. ESTATE. demised, and demisable, time out of mind (1). No estate COPYHOLD therefore is required to be in the lord, but only that the copyhold lands have been immemorially demised, or demisable, by the lord for the time being. The lord must, however, be in possession at the time of the granth, and must possess a lawful estate, at least primâ facie, and not as a disseisor1, or tenant at sufferance only; for grants made by such persons will not be made by the lawful owners'. If, therefore, a husband seised of a copyhold manor, in the right of his wife, grant a copyhold, this shall bind the wife and her heirs, notwithstanding her coverture (2), for the copyholder is in by custom, without regard to the estate or person of the grantor". So a grant made by an infant", non compos mentis, bishop, prebend, parson (3), &c. is good, and in the case of a bishop will bind the king on a vacancy of the fee. So if the queen Calth. Read. 48, 49. m " 4 S. P. n Co. Copyh. s. 125; Gilb. Ten. 196, 316. °4 Co. 21, b; 22, a. 23,b; 8 Co. 63; Noy, 41, S. P. adjudged. (1) It is one of the pillars of a copyhold estate, that it hath been demised, or demisable, time out of mind. 4 Co. 24, b; Co. Lit. 58, b; 1 Leon. 56; 3 Leon. 107-8; 2 Wils. 125. (2) But the grant must be made in the name of both husband and wife. Cro. Ja. 99. (3) As Coke says, that the successors of bishops, prebends, vicars, &c. are bound by such grants, it is evident that ecclesiastical persons being lords, are not restrained by the statute 13 Eliz. for granting by Copy. 4 Co. 21, b. Co. Copyh. s. 34; and see Gilb. Ten. 180, and 197. And it seems though such grant be made without the consent of the Dean and Chapter, it will be good; for as he has a lawful estate, no defect can vitiate the grant. Gilb. Ten. 197. But grants by a parson before inducticn, has been holden not good; so though after institution and induction if he read not the articles. Co. Copyh. 89, s. 34. Sed quære; but the committee of a lunatic cannot make grants, he having no kind of estate in the manor. Ley, 47. ESTATE. COPYHOLD be tenant for life of a manor, and a copyhold of inheritance escheat, she may grant it by copy, and such grant by the custom of the manor shall bind the king himself; for she was domina pro tempore. And so of other persons. And if there be two joint-tenants of a manor, and a copyhold escheat, one may grant the whole; for he is dominus pro tempore, being seised per my et per tout. And though the lord have only a particular interest in the manor, as tenant for life only, he may grant by copy, to hold in fee; and that, though the estate so granted by him may not only continue longer than his own estate in the manor, but even though the estate granted be in reversion, and may not come into possession during the existence of his own estates. Thus tenant in dower of a copyhold may grant not only in possession, but also in reversion, and it shall bind the heir after her death, although no services of the freeholders, but only the demesnes and services of the copyhold tenants, were assigned to her. So guardian in soccage may grant copyhold in reversion, and it shall bind the ward, though it come not in possession during his infancy". So lessee for years of a manor may grant lands by copy1; this however has by some opinions' been held void, unless the reversion happen before his estate for years is ended (1), P 4 Co. 23. T Gilb. Ten. 197. Gray and Kay, 1 Rol. 11 Hen.7, c. 20, as to alien-. ations by wife of the lands of her husband being void. "Godb. 143; Cro. Jac. 55, 98; Owen, 115; 1 Rol. Abr. 499; 2 Rol. Abr. 41, S. C.; 2 P. Wms. 122. * Neale v. Jackson, 4 Co. 26, b; Cro. Eliz. 895. y Owen, 115; Co. Copyh. 87. (1) That there ought to be a custom to enable a lord of a manor to grant copyholds in reversion, see March, 6, pl. 13. Vide Gouls. 102, 103; 3 Leon. 227; Godb. 140. Sed vid. Gilb. Ten. 322; and Watk. Copyh. 39. |