Honywood v Forster
| Jurisdiction | England & Wales |
| Judgment Date | 08 June 1861 |
| Date | 08 June 1861 |
| Court | High Court of Chancery |
English Reports Citation: 54 E.R. 788
ROLLS COURT
S. C. 30 L. J. Ch. 930; 4 L. T. 785; 7 Jur. (N. S.) 1264; 9 W. R. 855. Followed, Green v. Paterson, 1886, 32 Ch. D. 95.
Reports of CASES in CHANCERY ARGUED and DETERMINED in the ROLLS COURT during the time of the Right Honorable Sir JOHN ROMILLY, Knight, Master of the Rolls. 1801, 1862. By CHARLES BEAVAN, Esqr., M.A., Barrister-at-Law. Vol. XXX. 1863. [1] honywood v. forster (No. 1). June 6, 7, 8, 1861. [S. C. 30 L. J. Ch. 9:-U); 4 L. T. 785 ; 7 Jur. (N. S.) 1264 ; 9 W. R. 855. Followed, Green v. I'atersan., 1886, 32 Ch. D. 95.] A deed to bar an equitable estate tail of copybolds must be entered on the court rolls of the manor within six months after the execution thereof, or otherwise it will have no operation under the 3 & 4 Will. 4, c. 74. In 1840 William Philip Hollywood was tenant in tail in possession of certain freehold hereditaments in Essex and Kent, with remainder to his brother Robert Honywood in tail. William Philip Honywood was also equitable tenant in tail in possession of certain copyhold hereditaments in Essex, with like remainder to his brother Robert Honywood in tail. By an indenture, dated the 9th of May 1846, William Philip Honywood disentailed all his hereditaments, &c., in Essex and Kent, by conveying them to uses to bar dower. This deed was duly inrolled in Chancery, and it effectually barred the entail as to the freeholds ; but it was never entered in the court rolls of the manors in the life of William Philip Honywood. [2] William Philip Honywood died without issue on the 20th of February 1859, having devised his real estates to some of the Defendants. After his death, and in November 1859, Robert Hollywood executed deeds by which he purported to bar his entail in the copyholds, and these deeds were, in the same month, duly entered on the court rolls pursuant to the Statute for the Abolition of Fines and Recoveries (3 & 4 Will. 4, c. 74). On the 8th of May 1860 Robert Honywood instituted this suit against the persons claiming the copyholds under the will of William Philip Honywood, and against the trustees in whom the legal estate in the copyholds was vested, to obtain a declaration of his right to the copyholds and a surrender of them by the trustees, and for an account of the rents. After this, and on the 12th of May I860, the disentailing deed of the 9th of May 1856 was inrolled in the copyhold manors. Under these circumstances the following questions arose :-1st. Whether upon the terms of the deed of 1846 the copyholds were comprised in it. 2d. Whether, under the Fines and Recoveries Abolition Act (3 & 4 Will. 4, c. 74) it was essential that the disentailing deed of copyholds should be entered on the rolls within six months after its execution ; and 3d. Whether it could be effectually inrolled after the death of the tenant in tail. 788 30BEAV. 3. HONYWOOD v. FORSTER 789 Mr. Selwyn, Mr. Hardy and Mr. Karslake, for the Plaintiffs. [3] Firstr the deed of the 9th of May 1846 does riot include, and was not intended to include, the copyholds. A deed only passes that which its character and formalities shew it was intended to pass. Here the character and formalities of the deed, and the terms used in it, such as aclvowsons, &c., are applicable only to freeholds, and the general words must be limited to hereditaments ejusdem generis, especially as the usual words " of whatsoever tenure " are omitted. The limitation to uses and without impeachment of waste, and the declaration that the widow shall not be dowerable, are inapplicable to copyholds, and to hold that they were included in the deed would be to hold that a forfeiture of the copyholds had been incurred; such a construction must be, therefore, placed on the instrument as to avoid that consequence; Coke's Copyholder (sect. 58); Sheppard's Touchstone {p. 88); Burton's Compendium (sect. 1332). Secondly. But if the deed of 1846 operated upon the copyholds, it ought, under the .'! & 4 Will. 4, c. 74, to have been entered on the court rolls within six months, and not having been so entered it was ineffectual to bar the remainder-man. There is no authority on the point, and the words of the Act are perhaps not express, but such is clearly its spirit and object. The Legislature intended to insure publicity of the Act by which a tenant in tail was enabled to defeat vested estates and to afford speedy means of ascertaining the fact. As to freeholds, the Act directs that the disentailing deed shall be inrolled in Chancery within six months; and if copyholds be not within the very words, still a careful examination of the clauses of the Act will [4] shew that, by analogy, the same limitation as to time ought to be applied to them, for the provisions as to freeholds are, mutatis miitcm/lii, to be applied to copyholds " so far as circumstances and the different tenures will admit." The 40th section enacts that the disposition of freeholds by a tenant in tail is to be by deed, and it declares that every disposition resting in contract shall be null. The 41st section declares that every disposition shall be inoperative unless it be inrolled in Chancery within six months after its execution. The 50th section, then, takes up the case of copyholds, and enacts, " that all the previous clauses in this Act, so far as circumstances and the different tenures will admit, shall apply to lands held by a copy of court roll;" but the disposition by a legal tenant in tail is to be made by surrender, and by an equitable tenant in tail by surrender or deed. Therefore the 41st section is made applicable to copyholds, "so far as circumstances and the different tenures will admit," and consequently includes the limitation as to time. By the 51st section the consent of the protector is to be produced to the steward of the manor, who is, by indorsement on the deed, to acknowledge " that the same toas produced within the time limited." This is to be noticed on the rolls and is " to be primA facie evidence that the deed was produced within the time limited." This section, therefore, distinctly states that some time is limited, and none other can be suggested than the six months. By the 53d section an equitable tenant in tail of copyholds may dispose of the land by deed, " in the same manner in every respect as he could have done if they had been of freehold tenure, and all the previous [5] clauses in this Act shall, so far as circumstances will admit, apply to the lands in...
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