1816.

WAINEWRIGHT

0.

ELWELL.

of Elizabeth Elwell, upon the Trusts stated in her Will, can compel the Defendant to be admitted, and surrender this Copyhold. The Prayer of the Bill is, that he may be decreed to surrender; but as he has not been admitted, he must not only surrender, but be admitted. It is a new and important Question.

It appears from the Authorities, that a Surrenderee may, in some cases, before admission, and though there is no Surrender to the use of his Will, pass his equitable Interest; and, in other cases, he cannot. A Purchaser of a Copyhold, to whom a Surrender has been made, but who has not been admitted, may devise his equitable Interest, or, more properly speaking, his right to the Copyhold (c); and in King v. King (d) it was determined, that an Equity of Redemption of a Copyhold may be devised, without a Surrender to the use of the Will; and in many cases it has been held, that a Cestui que Trust of a Copyhold Estate may devise without a Surrender to the use of his Will (e); but an Heir at Law cannot, before Admittance, devise a Copyhold descended to him (f).

Elizabeth Elwell, the Testatrix, took merely as a volunteer, under her Father's Will, and not as Heir at Law, or as a Purchaser for a valuable consideration, and she, thus circumstanced, and not having been admitted, devises the Copyhold to strangers, mere

(c) Davies v. Beversham, 2 Freem. 157; S. C. Nels. 76, and in 3 Ch. Rep. 76; Greenhill v. Greenhill, 2 Vern. 679.

(d) 3 P. Wms. 358; and see

Macnamara v. Jones, 1 Bro.
C. C. 481.

(e) Carr v. Ellison, 3 Atk.

74.

(f) Smith v. Triggs, 1 Str.

487.

1816.

volunteers. It is not a Case, in which a Court of Equity will supply a Surrender, as in the Case of a Purchaser, a Wife, a Child, or Creditors; these Devisees WAINEWRIGHT are pure volunteers, who cannot be assisted against the Heir at Law.

It is clear, from Vernon v. Vernon (h), that this Testatrix, not having been admitted, could not, according to the opinion of the Judges in that Case, pass, by her Will, a legal Estate in the Copyhold, whatever might be the Relief which a Court of Equity would give.

The Testatrix, here, not having been admitted, took nothing under her Father's Will, though he surrendered to the use of his Will; for as Lord Coke says, " Admittance is the life and perfection of the Copyholder's Estate, and before Admittance the Tenant is not a perfect Copyholder (i)." Till Admittance the Title is in progress, inchoate and incomplete, like a Bargain and Sale without Enrolment, a Feoffment without Livery of Seisin, or a Presentation without Induction. In the Case of Miss Jefferies (k), a Copyhold in Fee was devised to her, by one who had surrendered the same to the use of his Will, and she not having been admitted, and attainted of Felony, and hanged, the question was, whether her Interest in the Copyhold was such as to entitle the Lord by Forfeiture, and the Court strongly inclined against the Lord, but did not absolutely decide the question.

An Heir at Law before Admittance may do many

(h) 7 East, 8.

(i) Suppl. to Coke's Copyh. sect. 4.

ELWELL.

1816.

WAINEWRIGHT

0.

ELWELL.

acts, which a Devisee before Admittance cannot do. A Devisee before Admittance has no Estate in the Copyhold; it remains in the Devisor; she has neither jus in re, or in rem, a phrase borrowed from the Civil Law, and importing, that there is no right to Possession, or any right of Action. A Devisee not admitted, having no Estate, she cannot give an Interest she has not. Not being recognized as Tenant on the Rolls of the Manor, by Admittance, she cannot do any valid act in the disposition of the Copyhold. This was the situation of Elizabeth Elwell when she made her Will; and therefore it is clear that nothing passed by Law under her Will. During her life she might at any time have been admitted under the Surrender made to the use of her Father's Will; but not being admitted, there was, after her Father's death, and during her life, no Tenant to the Lord, and no Fine paid him; and all this was owing to her negligence and laches in not perfecting her incipient, inchoate, right to the Copyhold. This is not the Case of a good Tenant to the Lord, actually admitted and clothed with a Trust; nor is it the Case of an Heir at Law, but of an individual having no Estate before Admittance, and only an incomplete legal Title.

It is quite clear that she had no equitable Title, distinct from her incomplete legal Title. It is not every one who has an incomplete legal Title that has therefore an equitable Title. A Purchaser not admitted has a right to the Estate; but this Testatrix had nothing to constitute an Equity, independent of her incomplete legal Title. Her will passed nothing,-it had nothing to operate upon-she had no Estate whatever in the

Copyhold. The Defendant, the Heir at Law, is entitled to be admitted either as Heir at Law of the Surrenderor, or as Heir at Law of the Surrenderee, in virtue of the devise to Eliza Elwell, and her Heirs. He is entitled to the full legal Title, and he takes it by Descent (1), from his Father. The Heir's Title being indefeasible at Law, on what ground are the Plaintiffs entitled to relief in Equity? If the Court were to give relief in this Case, it must in all Cases of a common-law Conveyance of the Equity give relief, as well as in every Case of a Devise; and the Lord might thus be deprived of his Fines, and the Party have all the privileges of a Tenant, without performing a Tenant's duties, or being liable to forfeiture.

If relief is to be given in Equity in this Case, why did not the Plaintiff in Vernon v. Vernon (a Case similarly circumstanced), prosecute his claim in this Court?

In a modern Publication, it is laid down, generally, that "a Surrenderee is now regarded as having such an Interest in the Premises as may be the object of a Devise, or Assignment (m)." He is right in saying, it may be assigned, but the Cases he cites do not warrant him in saying, generally, it may be devised; for Davis v. Beversham (n), there cited, was the Case of a Purchaser, who, dying before Admittance, might clearly Devise his equitable Interest, because, by the Contract, he instantly acquired a right to the Copyhold, and the Vendor became a Trustee for him of the Estate (o).

(1) 5 Burr. 2764.

(m) Watkins on Copyholds, p. 102.

and also in Nels. 76, and
3 Ch. Rep. 4.

(0) See Woolams v. Clap

1816.

WAINEWRIGHT

v.

ELWELL.

1816.

WAINEWRIGHT

v.

ELWELL.

There, the Lord had a Tenant on the Rolls. The same point was determined in Greenhill v. Greenhill (p). But, though a Purchaser to whom a Copyhold is surrendered, has an Equity which he may devise, it does not follow that every Surrenderee has an Equity which he can devise.

Smith v. Triggs (q), a Case much considered, has decided what I before mentioned, as to the Heir taking in this Case the legal Estate, by descent from his Father, the Will in favour of Elizabeth Elwell not having taken effect for want of Admittance. In that Case, Jane Day surrendered a Copyhold to the use of her Will, and devised it to her Daughter Jane Day, who, before Admittance, devised it to the Defendant Triggs, and died without any Surrender or Admittance; and it was held that Triggs had no Title for want of an Admittance by Jane Day, and also for want of a Surrender to the use of her Will.

In Wilson v. Weddall's Case (r), it was decided, that if a Copyhold be surrendered to J. S., it is of no effect until he is admitted Tenant; and if before Admittance J. S. surrenders to another, a Stranger, who is admitted, yet nothing passes to the Stranger by this Admittance.

In Shewen v. Wroot (s), it was determined, that until the Admittance of the Surrenderee of a Copyhold upon