Good right to convey.

lingly suffered to the contrary, they the said [mortgagor] and [mortgagee] are, or one of them, at the time of the sealing and delivery of these presents, is lawfully, rightfully, and absolutely seised of and in, or well and sufficiently entitled to the said messuages or tenements, lands, and other hereditaments herein-before granted and released, or expressed and intended so to be, and every part thereof, with their appurtenances, for a good, sure, sole, perfect, absolute, and indefeasible estate of inheritance in fee-simple, without any manner of condition, use, trust, power of revocation, equity of redemption, remainder or limitation of any use or uses, or other restraint, cause, matter, or thing whatsoever, to alter, change, defeat, incumber, revoke, or make void the same: And that for and notwithstanding any such act, deed, matter, or thing as aforesaid, they the said [mortgagor] and [mortgagee], or one of them, now have or hath in themselves or himself good right, full power, and lawful and absolute authority to grant, bargain, sell, release and confirm the said messuages or tenements, lands, and other hereditaments, herein-before granted and released, or expressed and intended so to be, with the appurtenances thereunto belonging, unto the said [purchaser] and his heirs, To the uses, and for the intents and purposes herein-before limited, expressed, and declared, and in manner aforesaid, according to the true intent and meaning of these presents; For quiet enjoy- And that the said messuages or tenements, lands, and other hereditaments, herein-before granted and released, or expressed and intended so to be, with their appurtenances, shall and may, from time to time and all times hereafter, go and remain To the uses herein-before limited, expressed, and declared, and be peaceably and quietly entered into and upon, and be held, occupied, possessed, and enjoyed, and the rents, issues, and profits thereof, and of every part thereof, had, received, and taken accordingly, without the lawful let, suit, trouble, denial, eviction, interruption, claim, or demand whatsoever, of and by them the said [mortgagor] and [mortgagee], or their heirs, or any person or persons whomsoever lawfully or equitably claiming or to claim by, from, or under or in Free from in- trust for them, or any of them; And that free and clear, and freely and clearly and absolutely acquitted, exonerated, released, and for ever discharged, or otherwise by the said

ment.

cumbrances.

assurance.

[mortgagor], his heirs, executors, and administrators, well and sufficiently saved, defended, kept harmless, and indemnified of, from, and against all and all manner of former and other gifts, grants, bargains, sales, jointures, dowers, right and title of dower, uses, trusts, entails, wills, statutes merchant or of the staple, recognizances, judgments, executions, rents, arrears of rent, annuities, legacies, sums of money, yearly payments, forfeitures, re-entries, cause and causes of forfeiture and re-entry, debts of record, debts due to the Queen's Majesty, and of, from, and against all other estates, titles, troubles, charges, debts, and incumbrances whatsoever, either already had, made, executed, occasioned, or suffered, or hereafter to be had, made, executed, occasioned, or suffered by the said [mortgagor] or [mortgagee], or either of them, their or either of their heirs, or any person or persons lawfully or equitably claiming or to claim by, from, or under or in trust for him, them, or any of them: And further that he the said [mort- And for further gagor] and his heirs, and all and every other person and persons having or claiming, or who shall or may have or claim any estate, right, title, interest, inheritance, use, trust, property, claim, or demand whatsoever, either at law or in equity, of, in, to, or out of the said messuages or tenements, lands, and hereditaments, herein-before granted and released, or expressed and intended so to be, or any of them, or any part thereof, by, from, or under or in trust for them the said [mortgagor] and [mortgagee], or their heirs, or either of them, shall and will, from time to time and at all times hereafter, upon every reasonable request to be made for that purpose, by and at the proper costs and charges in the law of the said [purchaser], his heirs, appointees, or assigns, make, do, acknowledge, and execute, or cause and procure to be made, done, acknowledged, and executed, all and every such further and other lawful and reasonable acts, deeds, things, devices, conveyances, and assurances in the law whatsoever, for the further, better, more perfectly and absolutely granting, releasing, and assuring the said messuages or tenements, lands, and other hereditaments herein-before granted and released, or expressed and intended so to be, and every part thereof, with their appurtenances, unto the said [purchaser], his heirs, appointees, and assigns, as by the said [purchaser],

F

his heirs, appointees, or assigns, or his or their counsel in the law, shall be reasonably devised, or advised and required (d). IN WITNESS, &c.

(d) It used, formerly, to be customary in a conveyance such as that above, for the mortgagee to release the mortgagor from the mortgage debt; but this is wholly unnecessary, as the deed will quite sufficiently prove that the money has been paid,

Parties.

mission of devisor.

VI.

COVENANT TO SURRENDER COPYHOLD Lands, &c. Vendor (Devisee under Will made before 1st of January, 1838) to a Purchaser.

THIS INDENTURE, made the day of, in the year of our Lord 1838, BETWEEN [vendor], of &c., the eldest son and devisee named in the last will and testament of W. R., late of, in the county of, esquire, deceased, of the Recital of ad- one part, and [purchaser], of &c., of the other part: WHEREAS at a Court Baron or Customary Court holden for the manor of on the day of 1809, the said W. R. was admitted, on the surrender of J. B. of, in the county of -, yeoman, to the copyhold lands, tenements, and hereditaments herein-after particularly mentioned and described, and herein-after covenanted to be surrendered, To hold the same unto the said W. R., his heirs and assigns, according to the custom of the said manor, and by the rents and services Surrender to use therefore due and of right accustomed: AND WHEREAS (a)

of his will.

(a) Copyhold property was not by common law devisable, but only passed by surrender and admittance. In order to render valid a disposition of such property by will, the owner must have surrendered to the use of his will, which surrender alone gave effect to the limitations contained in the will. The recital of the surrender to the use of the will, contained in the above form, is of a surrender made before the statute 55 Geo. 3. c. 192. came into operation (1815). By that statute it was enacted, that all future devises of copyhold lands shall be valid, although there shall not have been a surrender to the use of the will, in the same manner, to all intents and purposes, as if such surrender had been made. Doubts, however, were entertained, as to whether the act applied to cases where there was no custom in the manor to devise, or surrender to

at a Court Baron or Customary Court holden for the said manor of day of, 1810, the said

on the

the use of a will; and the customs of those manors in which copyhold lands would not pass although surrendered to the use of a will, were clearly unaffected by its enactments.

By the law as it recently stood, a surrenderee or devisee of copyhold could not devise the property before he had himself been admitted, nor would his admittance subsequent to the will have rendered the devise good: hence the chain of recitals in the text; namely, 1st, the admittance of the devisor; 2d, his surrender to the use of his will; and 3d, his will devising the lands to the present vendor; and then the recital of the admittance of the vendor makes the title on the face of the instrument complete.

These points, so far as they relate to the title depending upon surrender to the use of a will, are now set entirely at rest by the recent statute 1 Vict. c. 26. which (after repealing the 57 Geo. 3. c. 192.), enacts (sect. 3.) that all persons may in manner therein mentioned devise real estates, "and that the power hereby given shall extend to all real estate of the nature of customary freehold or tenant right, or customary or copyhold, notwithstanding that the testator may not have surrendered the same to the use of his will; or notwithstanding that, being entitled as heir, devisee, or otherwise to be admitted thereto, he shall not have been admitted thereto; or notwithstanding that the same, in consequence of the want of a custom to devise or surrender to the use of a will or otherwise, could not at law have been disposed of by will if this act had not been made; or notwithstanding that the same, in consequence of there being a custom that a will or a surrender to the use of a will should continue in force for a limited time only, or any other special custom, could not have been disposed of by will according to the power contained in this act, if this act had not been made."

The following rapid glance of the law of copyholds is extracted from Mr. Hayes's Introduction to Conveyancing, 3d edit. pp. 95, 96.:—“We may shortly observe that by custom controlling the will of the lord, the copyhold tenant-originally a mere slave bound to toil and to obeyhad acquired an interest sure and reputable, though not, indeed, in all respects so highly privileged as the freehold; that copyholds were unaffected by the Statute of Uses; that a copyhold tenement could be transferred at law only though the medium of a surrender into the hands of the lord of the manor, to the intent that the lord might admit into the tenancy the person in whose favour the surrender was expressed to be made, both the surrender and admittance being entered upon the court roll; that uses declared upon a surrender of copyholds were merely directions to the lord whom he should admit; that such directions to the lord, though once received or rejected at pleasure, as the humble petitions of the serf, were now recognised and enforced by the judicature as mandates of the lawful proprietor; that (notwithstanding some grave doubts (Walk, Cop. 99. 197. 208.) whether uses of copyholds must not conform to the rules of the common law) it was clear, upon principle and authority (Sand. on Sur. of Cop.; Boddington v. Abernethy,

W. R. surrendered the said copyhold lands, tenements, and hereditaments, to which he was so admitted as aforesaid, to such uses, and for such intents and purposes as he the said W. R. should by his last will and testament direct or appoint: Will of devisor. AND WHEREAS the said W. R. duly made, signed, and published (b) his last will and testament in writing, bearing date on or about the 1st day of December, 1837, and thereby gave and devised unto his son the said [vendor], his heirs and assigns, all his copyhold tenements and hereditaments holden of the said manor of To hold the same unto the said

visor.

[vendor], his heirs and assigns, for ever: AND WHEREAS the said W. R. departed this life on or about the

day of

last, without having revoked or altered his said will : Admittance of AND WHEREAS at a Court Baron or Customary Court, holden for the said manor of

vendor.

Contract for purchase.

Witness, ven

dor covenants to surrender.

on the day of last, the

said [vendor] was, in pursuance of the said will of the said W. R., admitted to all the said hereditaments to which the said W. R. was so admitted as aforesaid, To hold the same unto the said [vendor], his heirs and assigns, for ever, according to the custom of the said manor, and by the rents and services therefore due and of right accustomed: AND WHEREAS the said [purchaser] hath contracted and agreed with the said [vendor] for the absolute purchase of the customary or copyhold messuages, lands, tenements, and hereditaments herein-after particularly mentioned and covenanted to be surrendered, with the appurtenances thereunto belonging, at or for the price or sum of 10007.: Now THIS INDENTURE WITNESSETH, that for and in consideration of the sum of 10007. of lawful money of the United Kingdom of Great Britain

5 B. & C. 776.), that such directions might assume all the forms of future and shifting destinations (including powers of appointment, Rex v. Oundle, 1 A. & E. 283.; 3 Nev. & Mann. 484.), into which the freehold use was convertible; that the legal tenant might, as in the instance of freehold and leasehold property, be a trustee for the benefit of other persons, whose equitable rights, however, being incapable of tenure, were not cognizable by the lord (Lewis v. Lane, 2 M. & K. 449.), nor, therefore, necessarily apparent on the recorded proceedings of the manor."

(b) Publication of the will is no longer necessary, for the stat. 1 Vict. c. 26. enacts, "that every will executed in manner herein-before required shall be valid, without any publication thereof."