is an express authority to shew, that until admittance of the surrenderee of a copyhold on mortgage, the surrenderor continues the legal tenant. Dampier, in reply. Southwell was not guilty of laches; he would not, were he to apply, as he might, to equity, be unassisted. Equity will assist a mortgagor who has let pass the day of repayment. The argument for the lord must go all lengths. It must extend to this: that as some interval must take place between surrender and admittance, an act of the surrenderor, in that interval, shall prejudice the surrenderee. A surrender is a charge in this Court as well as in equity. Many cases cited shew that this Court notices real liens; and the cases of vendor and vendee, mortgagor and mortgagee, disseisor and disseisee, apply, as they shew that a tenant may be substituted, on the lord claiming by escheat. No argument arises from illusory surrenders. The lord may refuse admittance on such; and no Court, either by injunction or mandamus, will compel him. A heriot, it is true, is due on Boyes's death; for a heriot is a fruit of service, and he is tenant for service. Suppose Southwell had been admitted, and died; a heriot would have been due from him, yet Boyes (supposing he had committed no felony) could claim from the lord: in truth, all the inconveniences that can be suggested on the part of the defendant apply in cases where the mortgagee has been admitted; but that does not hinder the mortgagor's claim to admittance, on payment of the mortgage money. They are nothing in comparison with the inconveniences set up by the defendant's claim, viz. that in every mortgage, in order to secure the mortgagee, there must be two admittances where 1833. The KING against Lady JANE ST. JOHN MILDMAY 1833. The KING against Lady JANE ST. JOHN MILDMAY. where now none are made, two fines where now none are due. The dictum in Hurst v. Morgan (a), "that the estate does not pass by the surrender," means only that it does not pass to the surrenderee. The question now is, whether, to some purpose, it does not pass from the surrenderor? The surrenderor's estate at will does pass, but he has a new resulting estate at will till the admittance. The surrenderee claims the first estate surrendered to the lord. The latter estate is created by the lord's will for a limited and temporary purpose; it vanishes on admittance, and the admitted is in of the old estate at will unaffected by any intermediate act of the surrenderor done while he held the new and temporary estate. The surrenderor cannot contradict such acts, but the surrenderee can. If the surrender and admittance be two conveyances, then the first has taken the estate from the surrenderor; he cannot affect it- he is a stranger. If they be one conveyance, there must be relation, else there will be a division of what is one and intire. f Cur. adv. vult. LITTLEDALE J., in the course of this term, delivered the judgment of the Court. After stating the mandamus and return, his Lordship proceeded as follows: The question is, Whether if a copyhold tenant surrender his estate to the use of another, and afterwards commits and is convicted of felony before admittance of the surrenderee, the estate is by the custom forfeited to the lord? The case was argued before us very elaborately, and (a) Serjt. Hill's MS. all all the authorities were fully entered into. The Court did not at the time feel greatly pressed by the weight of. those authorities; but, as they were numerous, and the argument was chiefly from analogy, we wished to look into them. After a careful examination of them, we are of opinion that the estate is by the custom forfeited to the lord, and that a peremptory mandamus ought not to issue. It is conceded that as between the surrenderor and surrenderee, the latter cannot be prejudiced by any act done by the former subsequent to the surrender, but is entitled to be admitted to the estate free from all mesne incumbrances. It is conceded also, that the surrenderor, until the admittance of the surrenderee, continues tenant to the lord for all purposes of service. The estate, therefore, does not by the surrender vest in the lord. It is conceded also, that the surrenderee before admittance takes nothing, but that on admittance he is in by relation from the time of the surrender, as between him and the surrenderor, yet he has not been tenant in the mean time; for it is distinctly held, in Doe dem. Jefferies v. Hicks (a), that if he be attainted in the mean time, the lord will not take by forfeiture. If, then, no act of the surrenderee before admittance will work a forfeiture, and if it were held that the surrenderor after surrender, although he be tenant, cannot by any act of his work a forfeiture, it would follow that a considerable time might elapse, during which the lord's right of escheat is suspended, and that not by any act of his own, but by the acts of others, which he cannot prevent; for he can neither refuse to accept a (a) 2 Wils. 13. 1833. The KING against Lady JANE ST. JOHN MILDMAY. surrender, 1833. The KING against Lady JANE ST. JOHN MILDMAY. surrender, nor compel a surrenderee to come in and be admitted. We do not find any authority for such a proposition. On the contrary, it is laid down by Lord Chancellor Macclesfield, in Peachey v. Duke of Somerset (a), that the lord must always have such a tenant upon his lands as may be sufficient to answer all demands, and capable of committing forfeitures. There are many authorities relating to freehold estates, and some relating to copyholds, which shew that the tenant shall forfeit only that which he has; and therefore, in Pawlett v. The Attorney-General (b) (which was a case of freehold), it was held, that a mortgagor had a right to redeem against the crown, where the mortgagee in possession had been attainted; but it is plain that, in that case, Lord C. B. Hale sitting in equity treated the mortgagee's interest in the land as a mere pledge and security for money. It is no authority whatever for saying, that the estate was not forfeited to the lord at law. It was argued that the Court, in cases of mandamus to admit to copyhold estates, frequently looks to equitable interests; but, without at all denying that this may be so in some instances, it seems clear that this Court cannot, in such a case as the present, enter into a question of trust or adjust the equitable rights of the parties. Upon the whole, without minutely examining all the cases cited by the learned counsel for the surrenderee, we are of opinion, that as the surrenderor is conceded to be tenant for all purposes of service until the admittance of the surrenderee, so he is also tenant for the purpose of forfeiting. (a) 1 Str. 454. (b) Hardr. 465. One One point more remains. Mr. Dampier argued, that the custom here stated could not apply to such a case as the present, because the custom, to be valid, must have existed before time of legal memory, at which remote period, the surrender and admittance were not one conveyance as now, but by the surrender the estate vested in the lord, and was regranted by him at the time of admittance; so that, in the interval between surrender and admittance, there was then no tenant at all, but the estate was in the lord. But this argument proves too much; for it shews, that whenever there was a tenant, such tenant might by the custom commit a forfeiture, and as soon as ever a surrenderor before admittance came to be considered as tenant, and the estate was no longer held to vest in the lord, the custom as to forfeiture immediately attached on such tenant. If it did not, neither would any other of the customs, and the lord would, at this day, have no tenant at all between surrender and admittance. It is conceded, however, that he has a tenant for the purpose of services, why not also for the purpose of forfeiture? The consequence is, that this rule must be discharged. Rule discharged. |