Jurisdictions, Part 83 – Part 84
Limitation.
THE Statute of 32 H. 8. chap. 2. extends to copyholds, for the Statute is, that none ſhall make preſcription, Title, nor claim, &c. above forty yeares, &c. and that doth a copy-holder, and for that is within the Statute, 6 Ed 6. Brook Limitation 2.
38 H. 8. chap. 1. Copy-holder which is Tenant in common, is not compellable by this Statute to make partition, for the Statute gives remedy for one Tenant in common againſt another, by a Writ of (making partition) and it ſeems that a Copy-holder is not within the Statute of, 27 H. 8. chap. 10. of Joynture of Women, for that Statute bars Women which have Joyntures before Marriage to have Dower, that is of Lands given in Dower by the Law, and not by cuſtome.
Where a copy-holder by the cuſtome may ſurrender his Land out of the Court, into the hands of the Lord by the hands of two copy-holders, or one to the uſe of J.S. and a copy-holder ſo makes ſurrender to two and one dies, or both dye, before the next Court, and yet Homage findes it, this is good ſurrender, and J. S. ſhall be admitted.
Tenant by copy of Lands of the nature of Gavellkinde hath Iſſue two Sons, his eldeſt Son hath Iſſue a Son and dies ſeiſed, this Land ſhall deſcend to the youngeſt Son and to his Nephew, the ſame Law is if the Son have Iſſue a Daughter and dies ſeiſed, this Daughter and the youngeſt Son ſhall have this Land by diſcent, and yet the Statute of Prerog. Regis, chap. 16. is, that Women ſhall not ſhare with Men.
Tenant by copy ſurrenders to the uſe of one for life, the remainder to the uſe of one moſt neere in blood, and hath Iſſue two Sons, the eldeſt hath Iſſue and dies, the Tenant for life dies, the youngeſt Brother ſhal have the Land and not the Iſſue of the eldeſt Brother, for the youngeſt Brother is more neere of blood to his Father, then is the …on of his eldeſt Son, by wich, 30 Aſs. 47. but the youngeſt Son is not next Heire.
Where the copy-hold is of the nature of Borrough Engliſh, and this copy-holder having three Sons ſurrenders this to the uſe of his youngeſt Son in taile, the remainder to the uſe of the Heires of the Body of the Father ingendred, and for default of ſuch Iſſue to the uſe of the right Heirs of the Father, and the youngeſt Son dies without Iſſue of his Body, it is ſaid that the eldeſt Brother ſhall have this as Purchaſor.
Two Joyntenants of one copy-hold are, and one ſurrenders his part to his companion for life, this is a ſeverance of the Joynture, Lit f. 56.
Where the cuſtome of a Mannour is, that the youngeſt Son ſhall inherit by diſcent the copy-hold, and A. being a Villaine, purchaſe copy-hold there, and the Lord ſeiſes them, and grants them out of his hands by copy, the y…ngeſt Son of the Grantee ſhall have this by diſcent.
If the tenant by copy of Court-roll hath paid to his Lord more Rent then he ought, and the Lord of that Surpluſage of Rent was ſeiſed by the hands of his tenant, yet the tenant ſhall avoid that in Avowry, for he is but tenant at will by the courſe of the common Law, otherwiſe it is of very tenant of charter land.
Where a copy-holder in Fee ſurrenders into the hands of the Lord to the uſe of J. S. without more, all is in the hands of the Lord; and the Steward admits J. S. to have and to hold to him and his heirs, yet J. S. hath an Eſtate in Fee, and yet the admittance is but allowance of J. S. to be tenant of ſuch Eſtate which is ſurrendred; but the uſe is in moſt courts to enter, that it was ſurrendred to the uſe of J. S. without more, and the Steward enters, that the Lord hath granted to him Seiſin, to have to him and his heirs, and taken good: but it is better when one ſurrenders into the hands of the Lord, to ſay and enter, to the uſe and behoof of J. S. for life, or to the uſe and behoof of J. S. and his heirs: ſo that by (to the uſe and behoof) the Eſtate is limited, that J. S. ſhall have it, and that makes the admittance accordingly to be good without doubt, and yet the other is good, for by the ſurrender, all the intereſt is in the Lord.
If the Homagers gives falſe Verdict in the court of copy-hold, the party ſhall not be bound, but he ſhall traverſe that: but if ſuch a Verdict be found for the Lord, though the Verdict be falſe, yet the party cannot traverſe that there, but is put to his Petition, touching his land, or to ſue in the Chancery; for if the Verdict finde falſe, that waſte was made in the Tenements of the Grand-father, the Son of the Father ſhall looſe after his land, for that it is a forfeiture which runs with the land; but ſeek, for it is made by the perſon of the Father, and the Son hath no remedy if the Verdict be true, but if the Verdict be falſe, then his remedy is by Petition, and by no other remedy in this Court.
If Tenant by copy makes a Leaſe for years by licenſe of the Lord, and after in the ſame Court the Tenant will releaſe to his Leſſee by ſuch words (to remiſe and releaſe) ſuch releaſe ſeems void, for that that it ought to be a Surrender into the hands of the Lord, &c. as he hath ſurrendred and releaſed, &c.
Uſe may be of Copy-holds, as well as of Free-hold, but the Statute of 27 H. 8. for uniting the poſſeſſion to the uſe, doth not extend to ſuch tenures: Nor (he to whoſe uſe) cannot forfeit the Land by cutting Trees, if it were not by the conſent and commandement of the Copy-holder. If the Lord let ſeverall Copies for one intire Rent and ſervice, and the Tenant makes waſte in any parcell of them, and that be preſented in his Court, he ſhall ſeiſe all the Copy as it was intirely let.
A Rent of a Copy-holder may be apportioned, as well as another Rent.
Tenant by copy of Court-Roll in the Court (ſold and bargained) his copy-hold to J. S. and his heires, J. S. was admitted, to have to him and his heires according to the cuſtome; this is not good, for that it wants this word (Surrendred.)
Tenant in taile by copy, the remainder over to I. S. in Fee, ſurrender his Lands into the hands of two Tenants, to the uſe of I.N. and his heirs, and dyes before that be preſented, and after that was preſented, and I. N. admitted, this is not good, but contrary Law, if Tenant in Fee had made that ſurrender, and dyed as above: Seek.
By the cuſtome of a Mannor, ſome Lands are copy-hold for three lives, and ſome to them and their heires, and the Lord grants by copy that which was for three lives, after thoſe three lives ended, to one and his heires, this is not good; but the cuſtome of the Mannor is good, though there be ſeverall copy-holders of ſeverall cuſtomes.
The Lord of a Mannor within which are copy-holders, and the Lord grants over the Demeſnes to I. S. in Fee, ſo that he hath no Court; yet it is ſaid, that the copy-holders may ſurrender as before they did: And that the Lord by his Grant cannot deſtroy their ſurrender, and Copies.
The Lord may avow for Rent of his Copy-holder before admittance, where it deſcends to a copy-holder; but he ſhall not be ſworn of the Homage before admittance.
If the cuſtome of copy-hold be, that the Lord may grant for three lives if all dye, and then when the land is come into the hands of the Lord he is bound in a Statute, and after he grants that over according to the cuſtome, this Land ſhall not be extended upon the Statute.
And if a copy-holder be bound in a Statute, his copyhold land ſhall not be extended, and if the Lord be bound in a Statute, the land of the copy-holder ſhall not be extended.
If an Infant be a Lord, and admits a copy-holder to him and to his Heires, this is good, and he cannot avoid that by his Infancy, for he is but an inſtrument to convey that according to the cuſtome, and departs with no Eſtate.
If a copy-holder will exchange, this is not good, unleſſe there be a ſurrender and admittance.
If a Villaine purchaſe copy-hold, and the Lord of the Villaine enter, he ſhall not have poſſeſſion of the copyhold till he be admitted.
Copy-hold ſhall not be forfeit by attainder of Hereſie, for …he blood is not corrupted, for the Statute of, 5 H. 5. is not to be intended of copy-hold Lands, for it is ſaid by the Statute, that he ſhall forfeit his Lands, Tenements, and Hereditaments, and that the Lord of whom the Lands are held ſhall have the Lands after the King hath (yeare day and waſte) and this is intended of free-hold and not of Copy-hold, but if a Copy-holder be attaint of Treaſon or Felony, as it is aforeſaid, there the Lord ſhall have the Land, for that that the blood is corrupt, and ſo there is none to inherit, but by attainder in Hereſie is no corruption of blood.
If a copy-hold be furrendred to my uſe ſimply, and the Lord admit me upon condition, this condition is void, for the Lord gives nothing, but is an inſtrument to convey that according to the ſurrender; ſo if it be ſurrendred to me for life and the Lord admits me to have to me and my Heires, it is not good.
If a copy-holder of a Mannour takes a Leaſe for yeares of this Mannour, ſeek if his copy-hold be extinct.
But if a copy-holder makes a Leaſe of his copy-hold to his Lord, this was held no extinguiſhment of his copy, but a ſuſpenſion.
But if the Lord by Indenture make a leaſe for yeares of copy-hold land to his copy-holder of that, the copy-hold is there held to be extinct, ſo if the Lord make a feoffment to his copy-holder of all his Mannour upon condition, and after enter for the condition, the copy-hold is extinct, and if a copy-holder take a leaſe for years of the Mannour, with a remainder over by Indenture, this extincts the Copyhold.
If a Diſſeiſor be of a Mannor, whereof there are copyholders for three lives, and he grant copies for three lives, and after the Diſſeiſee re-enter, this ſhall avoid the grant of the copies by the Diſſeiſor.
But if the Lord of that Mannor make a feoffment in fee upon condition, and the Feoffee grants copies for three lives, and after the Feoffor enter for the condition broken, he cannot avoid the copies.
If Tenant in taile or in fee of a Mannour will grant Lands by copy, which were no copy-hold Lands before, and that hath contiuned by divers admittances after as copy-hold, and was never interrupted at any time by the Iſſue in taile, but hath been allowed for him, ſo that, that hath continued by ſixty or eighty yeares, this is very good, and ſhall not be ever after avoided, but if it may be ſhewed to have been an Interruptation, then it is otherwiſe.
15 Eliz. If a copy-holder ſurrender to the uſe of his Wife for life, the remainder to him and his Heires, and after the Husband ſurrender to J. D. and his Heires and dies, the Wife may enter by Dyer and Mounſon Juſtices, and ſhall hold for life, but the Heires of the Husband are bound; otherwiſe it is, if the remainder were to the right Heires of the Husband, for they are purchaſors of this remainder, and may enter after the death of the Wife.
A Copy-holder hath a Son and a Daughter by one Belly, and a Son by another Belly, and ſurrenders to the uſe of his Wife for yeares, and conveyes after her death the remainder to his Son of the firſt venter, his Heires and Aſſignes and dies, the Tenant for years is admitted, the remainder in form aforeſaid, the Son of the firſt Belly dies without Iſſue, before admittance, and during the Tearme: and Dyer ſaith, that the poſſeſſion of the Wife of the Termor or of the Guardion is a ſufficient poſſeſſion to make (a Brothers poſſeſſion.)
16 Eliz. Mounſon ſaith, Copy-holders are within all ſtatutes which ſpeake of Tenants, for if a copy-holder had not been excepetd in the Stat of diſſolution of Monaſtries, the King had had them, which Geffrey and Bendlowes granted.
The Husband by ſurrender diſcontinues the copy-hold which he hath in right of his Wife, the Wife is put to her (Cui in vita) and ſhe is not aided by the Statute of, 32 H. 8.
24 Eliz. A copy-holder ſurrenders to the uſe of his laſt will, and deviſeth that his Executors ſhall ſell the Land to J. S. and makes two Executors and dies, and one Executor takes a Wife and ſurrenders to the uſe of J. S. the Deviſee, and was ſaid that by the admittance of J. S. that he was copy-holder, though that the ſurrender be made by both the Executors.
Taile of Copy-hold.
EState taile may be of a copy-hold, and Formedon in deſcender may lye of that, that is to ſay, may ſue plaint, and make proteſtation in nature of a Formedon in diſcender at the common Law, and good by all the Juſtices, for though a (Formedon in diſcender) were not given but by Starute, yet this Writ now lieth at the common Law, and it ſhall be intended that that hath been the cuſtome time out of minde, &c. See Littleton fol. 14. Plaint in nature of Formedon in diſcender, and alſo Littleton ſaith, that copy-holder is, where within the Mannour the Tenants within the ſame Mannour, have uſed time out of minde, to have Lands or Tenements to them, and to their Heires in Fee ſimple or ſee Taile, and though that the Statute of Weſtminſter 2 chap. 1. is, That the will of the giver in writing ſhould be obſerved (ſo that copy-hold is not within the Statute) yet in theſe Mannors, within which, time out of minde, they have been uſed to have Eſtates in taile in this Mannor, and not in others are Eſtates taile of copy-holds, 15. H. 8. tit. 24.
And now it is common uſage, to cut of the Taile of copy-holdes within ſuch Mannors where there is an Eſtate taile of copy-hold, by common recovery in the nature of a Writ of entry in the (Poſt) which after followes, and alſo by recovery in nature of a Writ of Right, and joyne the Miſe as followes afterwards, and another way is to cut of the intaile, and that is by preſentment, that the copy-holder hath made a Leaſe by Indenture for divers years, or other forfeiture, and then the Lord to ſeiſe for that, and to ſurrender to the Purchaſor; and theſe two waies are allowed for good.
It is ſaid that five grounds of Law in England is and hath been in diverſe particuler cuſtomes, the which cuſtomes, though they are againſt the generall cuſtomes of Law, yet they are in effect and are taken for Law; and ſo I intend that this cuſtome of copy-hold Eſtate (for that, that it hath continuance by preſcription) is good by the Law, that the copy-holder hath an Eſtate by cuſtome and Law alſo, and that of that may be an Eſtate taile where that hath been uſed by preſcription. Doctor and Student fol. 20.