« ForrigeFortsett »
nises in the count}' of York, other than such estate or 1805
interest as she was entitled to (if any,) in the aforesaid ■ .
customary tenements, under and by virtue of the afore- ^J'*
First; That a sum of 4l. Us. (3d. was annually paid by William Earl of Strafford, as customary or lord's rerrt for these customary lands, held of the manor of Wakefield, from the death of his father, Earl Thomai, until the same was discontinued as hereinafter men
lioned. The amount of such renls in the lord's books 'is4l. 18s. l-yd. but Earl /I illiam never paid more than the above sum of 4l. 14s. (Jd. The receipts of the customary or lord's rent are entered in a book distinct from the'couit rolls, and never appear upon the rolls. Second; That Earl II illiam docs not appear by the court rolls to have been ever admitted, but was frequently applied to by the lord, and by his steward to come in and be admitted, which he did not do; but in the year 177!) the lord insisting upon the said Earl liil/iuins coming in to be admitted, and to pay his fines, the payment of the above sum, 41. 14s. Gd. was discontinued, and in 1701 the lord filed his bill in Chancery against Tre/leric Thomas, Earl of Strafford, k> whom the estate had then descended, and the customary heirs of William Earl of Strafford, to compel the party entitled to the lands to come in and be admitted thereto, and that the lord's fines should be paid, which suit is still depending. Third ; The surrender of Earl Thomas to the uses of his will was presented in court in 1741, after his death, according to the custom of the manor, but his will was never enrolled until the year 1S02, when Mr. Conolli/ was admitted tenant to the compounded part of the customary tenements under a writ of mandamus.
Watkins, for the plaintiff', made two questions; first, whether Lady Harriet Fcrnon, at the time of making her will, and also at the time of her death, had such an interest in the premises in question, as she could have devised by her will, without a previous surrender to the use of her will. And secondly, whether, if she had such an interest, she made use of such words in her will as were sufficient to pass it. As to the surrender of a copyhold, the surrenderee is not invested with the tenancy, but by the admission of the lord. No one is tenant until admission, except an heir npon a desceat.* And if a copyholder surrenders to 1805. the use of the surrenderee and his heirs, the estate re- ' ~"7 mams in the surrenderor till admittance.+ bo in case Vf«»oh of a devise.* Itis staled in tliis ruse, that Thomas Earl of Vi»n»!i. Strafford surrendered to the us.; of his will, and there was no admission by the devisee under his will, till after the death of Lady Harriet Vernon. Therefore, on the death of Thomas Earl of Strafford the estate must have descended to his customary heir; and as Earl William, one of the devisees, survived Lady Harriet Vernon, the legal estate in the premises was not in her ladyship, and she Lad only an equitable interest. A legal estate in a copyhold is not devisable at all, but by means of a surrender to the use of the will, but such surrender cannot be made by a person who has not the legal estate by admission; and therefore such a person may without a surrender, devise the equitable estate. Afi, where there is a mortgage, the mortgagor not having the legal estate in him, has no estate that he can surrender, and therefore may devise the copyhold premises without a surrender.§
IMS. Lord Ellen Borough, C. J. "Are there any r '. cases where this court or anv ceurt of law has taken Vmnow notice of an equitable estate t"
Y»rxo*. Watkins. n As by the admission of the lessor of the plaintiff, the equitable estate is now become a legal estate, a court of law may take notice of it."
Lawrence, J. "The legal estate may, perhaps, be in the heir at law of Tlnomas, Earl of Strafford, and he may be a trustee for the lieir at law of Lady Harriet Vornon.Then must nothe go into a court ofequity i In what a state of confusion would copyhold titles be, if, when it appears that there is an admission on a surrender to one person, there should be a legal estate set up under a will of which nothing appears:"
Lord Eli.enborouoh, C. J. "Really as a quession of law there is nothing in it. Here is a devise by Lady Harriet Vernon, which Lady Harriet Vernon was never admitted, and there is a negative custom that the devisee cannot be admitted under the will till after a surrender to the use of the will. We are then to be hunting after an equitable interest, when, we have nothing to do with the equity."
Watkins. "The custom goes only to the legal estate. When she devised it, she had only an equitable interest, to which the custom therefore could not apply. She would also be entitled to admittance as surrenderee."
Lord Ellen Borough, C. J. "It only clothes her with a formal legal title, and no more. Now nobody, as her heir, can be in a better situation than she would be hetself, and she was never in fact admitted. It would only be oversetting all the copyhold law as it stands at present, to hold the legal estate to be in the lessor of the plaintiff. And how could the admittance of the devisee of Lady Harriet Vernon connect itself with the surrender of Earl Thomas, whose will directed the Usps 18i15. of that surrender. The only surrender is under the , ■
will of Earl Thomas. Surely, the proper view of the Veumow case is, that the heir at law of Earl Thomas is a trustee v*'"1", for the heir at law of Lady Harriet, and a court of equity will direct that the heir at law shall make a surrender. I caunot think that the admittance of the devisee under the will of Lady Harriet can be connected with the surrender to the use of Earl Thomas's will. Assuming that you have equity (walton, for the defendant, said he should contend that there was no equitable interest in the lessor of the plaintiff,) we cannot take notice of it."
Le Blanc, J. "The ground of argument which the defendant's counsel is to take, namely, that there is no equity, shews that we ought not to entertain the question."
Judgment Foe The Defendant.
The King agaimt the Inhabitants of Etwall.— 'i2d June.*
Where fart of a farm lay in the tozcnih'ip of W. and part in Settlement b+ the parish of D. a poor-rate fur the parish of JJ.for the impart in B. teas held good; though, previously, the tenant" had paid only poor-rale to A. butheluid paid tithes mid church-rate to li. •
^PPEALby William Orme, against the charge of The Ki»«
'one pound eighteen shillings and one halfpenny, u,c iuhabimnt* on him, in relief of the poor of the parUh of Etwall, ot Il"Mt' • whereupon the rate was confirmed subject to the opinion of this court upon the following case: viz." William Orme, the appellant, is occupier of a messuage, farm, and lands of considerable extent, as tenant to Mr. William Fozcler; the farm is situate in two parishes, the dwel
* Omitted by accident in Vol. IT.