1833. Dog dem. against to the intent that the lords farmers, might regrant the same to W. H. Leach and J. W. Wickham, to hold to them, Leach and Wickham, for their natural lives, and the life of the longest liver of them successively, WHITAKER. at the wills of the lords, according to the custom of the said manor; to which said W. H. Leach and J. W. Wickham, the lords farmers, by their said steward, granted seisin by the rod, to have and to hold the premises in question unto the said W. H. Leach and J. W. Wickham, for their natural lives, and the life of the longest liver of them successively, at the will of the lords, according to the custom of the said manor, at the yearly rents of 26s. 4d., and 7s., payable as therein mentioned, and all burthens, customs, and services therefore due and of right accustomed, and a heriot for each of the said tenements when it should happen, according to the custom of the said manor; and for such estate, so to be had, the said W. H. Leach and J. W. Wickham gave to the lords farmers 5s., and by the said W. Higgins, their attorney for this purpose appointed, were admitted tenants, but their fealty was respited, until, &c. W. H. Leach and J. W. Wickham were the lessors of the plaintiff. The question for the opinion of the Court was, whether they were entitled to the possession of the premises sought to be recovered: and, if the Court should be of opinion that they were so entitled, the verdict was to be entered for the plaintiff; if the Court should be of a contrary opinion, then a nonsuit. The case was argued in Hilary term 1832, before Lord Tenterden C. J., Littledale, Taunton, and Patteson Js., and, by direction of the Court, re-argued (a) in last Easter term, by (a) Before Denman C. J., Littledale and Parke Js. 1833. Dor dem. LEACH against WHITAKER. Preston for the lessor of the plaintiff. It may be objected to the grant of May 1825, that it was made at a court held out of the manor; and, therefore, that the court being void, all the acts done at it were so. Where an act must necessarily be done in court, as a customary recovery, the validity of the court is essential to the validity of the act; but the lord may make a grant of or admittance to a copyhold in or out of court, or in or out of the manor, at what place he pleases. The grant is his act, and binds him alone. The common law as to surrenders of freehold is thus stated in Sheppard's Touchstone, 306: "It is further, also, required in every good surrender, that if it be made by word and without deed, that then it be made in the same county where the land to be surrendered doth lie; but by writing a man may make a surrender of lands that do lie in any other county, and in what place soever it doth lie." So livery of seisin must be made in the land or in sight of it, so that the jury of the county may be able to try it. Here the homage is to try the validity of the grant. Now, what difference does it make to them or the public whether the grant be made in or out of court? The homage may try the validity of the grant equally well in either case. But it may be said that, although the lord might make such a grant out of the court, or even out of the manor, the steward cannot: and the fourth resolution in Melwich's case (a) will be cited, to shew that the steward of the court of a manor cannot, at any court held out of the manor, make grants or admittances. Clifton v. Molineux (b) may also be cited, to shew that the court, and all the grants and admittances made at (a) 4 Coke, 26 b. (b) 4 Rep. 27 a. such such a court, are void, because the court of the manor ought to be held within it. But the decision there was a more sweeping one than the case required; and Melwich's case (a) was relied upon. Now, in that case (which is also reported in Cro. Eliz. 102.) the Court were not called upon to consider what would be the effect of a grant made at a void court, when the grant would be good even though it were made out of court. The point necessary to be decided there was, whether the lord could, at his manor of Harbridge, make a valid grant of tenements in Eastworth, they having been severed from the manor of which they had formed part. In Lord Dacre's case (b) (cited by Lord Holt in Parker v. Kett (c)), it was said in argument, and assented to by the whole Court, that a customary court may be held out of the manor. In Bro. Abr., tit. Court Baron, pl. 23., it is said, "If an under-steward hold a court baron and grant copyholds to the tenants without authority from the lord or the chief-steward, it is good, because it is done in full court; but it is otherwise where it is done out of court without such authority: " and Bro. Abr., tit. Tenant per Copy of Court Roll, pl. 26., is to the same effect. That shews that an authority to make the grant will be implied where the under-steward appointed by the lord makes it in full court; but where he makes it out of court, no such authority will be implied. In Watkins on Copyholds, tit. Grants, p. 29., it is said, "In order to enable the steward to grant, it is not enough that he be steward de facto, he must have a lawful authority;" and in page 30., "The bailiff of a manor cannot, as such, 1833. Doɛ dem. against WHITAKER. (a) 4 Rep. 26 b. (b) 1 Leon. 289. (c) 12 Mod. 472. 1833. Doz dem. LEACH against WHITAKER. make a grant by copy; for such a power does not appertain to his office, which was instituted for other purposes;" and he then says, "It is said that an under-steward cannot grant out of court, without a special authority or custom enabling him so to do." But these dicta shew that, if there be a special authority or custom, it is sufficient. The whole question is, as to the authority. A steward, as incident to his office, may take a surrender out of court, or even out of the manor. What difference is there, whether it be a surrender or admittance? The court, merely as such, adds no efficacy to the grant: the efficient part is the delivery of seisin. But, further, if the lord may make a grant out of court, and out of the manor, he may authorise his steward to do so: and here the lords farmers, by the deed of September 1823, gave C. Leake a special authority to make grants, either in or out of court, as fully as they could do. He therefore had power to grant in or out of court, or in or out of the manor; and the grant, when made, enures, and may be pleaded as a grant by the lord; not merely, as it imports, by the steward. In early times instruments could operate only in the precise way pointed out by the parties; but now, where a deed cannot operate in the way contemplated by the parties, it will be construed so as to effectuate the intention, if possible, in some other way. Osborn v. Churchman (a), Marshall v. Frank (b), Goodtitle v. Bailey (c). So, here, the grant made by the steward at a void court may operate and (a) Cro. Jac. 127. (b) Gilbert's Eq. Rep. 143. enure onure as a grant made by the lord. The objection, that two rents are reserved, without distinguishing how much is payable for each tenement, cannot prevail, for the same rents were reserved in the grant of 1771; and it may, therefore, be intended that such distinct rents have always been reserved. Then, as to the heriots : by the grant, a heriot is reserved for each tenement, when it shall happen, according to the custom. If a heriot is not due for each tenement by such custom, it cannot be claimed. Scriven Serjt. 'contrà. The grant of the 2d of May 1825 is void for the following reasons: First, because it was made on the surrender of John Francis, the survivor named in the grant of the 15th of October 1812, and it does not appear that he ever was admitted the lord's tenant. Secondly, because the court at which it was made was void, inasmuch as it was held out of the manor, and therefore all the acts done at it were void. Thirdly, a steward, even though he has a special authority to make grants out of court, cannot make a grant out of the manor. Fourthly, no authority was given to the steward, beyond that of doing the acts usually done by a steward in court and out of court. Fifthly, the grant, even if it could be considered an act done out of court, was void and inoperative for want of presentment and enrolment of it at a subsequent court, legally holden within the manor.. And, sixthly, it is void for want of reservation of the usual services. As to the first point, the grant is void because it is made on the surrender of John Francis, who had no title to the copyhold, never having been admitted. 1833. Dox dem. against WHITAKER. |