Smith v Adams
| Jurisdiction | England & Wales |
| Judgment Date | 01 August 1854 |
| Date | 01 August 1854 |
| Court | High Court of Chancery |
English Reports Citation: 43 E.R. 1047
BEFORE THE LORDS JUSTICES.
S. C. 18 Beav. 499; 24 L. J. Ch. 258; 18 Jur. 968; 2 W. R. 698.
[712] smith v. adams. Before the Lords Justices. July 24, 25, August 1, 1854. [S. C. 18 Beav. 499; 24 L. J. Ch. 258; 18 Jur. 968; 2 W. R. 698.] The Dower Act does not apply to freebench. The purchaser of a copyhold held of a manor, the custom of which entitled widows of the copyholders to freebench in one moiety of the lands of which their husbands died seised, took a surrender, but died before admittance. Held, that his widow was not entitled to freebench at law or in equity. This was an appeal from a decision of the Master of the Rolls, holding, that the widow of an unadmitted surrenderee of copyholds had an equitable title to freebench. The case is reported below in the 18th Volume of Mr. Beavan's Reports (page 499). The following statement of the facts, which is transposed to this place from the judgment of Lord Justice Turner, will be sufficient for this report. By the custom of the manor of Weedon Beck, in the county of Northampton, the widow of a- copyhold tenant is entitled, for her freebench, to an estate for life in one moiety of the copyhold tenements of which her husband died seised. In the year 1845, Samuel Basaley was seised of some copyhold tenements holden of the manor, subject to the life-estate of Ann Baseley (who was the widow of a prior owner, and as such entitled to freebench), in a moiety thereof; and in the month of July 1845, Samuel Baseley sold the copyhold tenements of which he was seised to George Smith, subject to the estate of Ann. Samuel Baseley at this time stood admitted to these copyhold tenements, and, upon the com-[713]-pletion of the sale, he and his wife surrendered them out of Court, to the use of George Smith, hia heirs and assigns, according to the custom of the manor. This surrender was duly presented ; but no admission was then, or had at any time since been taken upon it. George Smith, however, entered into possession of the surrendered copyholds. He died on the 22d of February 1851, leaving both Samuel Baseley and Ann Baseley surviving him, and he left the Appellant John Smith his heir, according to the custom of the manor, and the Respondent Maria Smith his widow. In this state of circumstances, the Respondent Maria Smith claimed to be entitled to freebench of the entirety of the copyhold tenements; and the question having been brought before the Master of the Rolls, he decided that she was not entitled to freebench in respect of the moiety of the tenements to which Ann Baseley was entitled for life; but as to the other moiety of the tenements, he declared, that the Defendant (the heir) was, until admittance, a trustee of the rents and profits of one-half of such undivided moiety for the benefit of the widow, and directed him to account for such rents and profits, from the time of his taking possession thereof, and that upon the heir being admitted, the widow would become entitled to her freebench out of the said copyhold messuage and closes. Maria Smith, the widow, did not appeal from this decision so far as it was unfavourable to her, as to the moiety of Ann Baseley; but John Smith, the heir, appealed from the decision as to the other moiety. Mr. Lee and Mr. H. Wright, for the Appellant. The Dower Act does not apply to copyholds. The Master of the Rolls expressed his opinion in our favour in that respect. Copyholds are expressly mentioned in the Act [714] to amend the law of inheritance, and from their not being mentioned in the Dower Act, it must be inferred that they were not intended to be included in it. This inference is rendered conclusive by reference to the Report of the Real Property Commissioners, on which the Dower Act was founded. Considering then the question as unaffected by the Act, it was necessary, according to the custom, in order to entitle the widow to freebench, that her husband should have died seised of the copyholds. Now seisin must mean legal tenancy. This there could not be before admittance, which is, to 1048 SMITH V. ADAMS 6 DE 0. M. & 0. 715. use the expression of Lord Coke, "the life and perfection of the copyholder's estate." The title of a widow to freebench is a mere legal title, and to establish her right she must bring herself within the custom. Up to the admittance of the surrenderee, the surrenderor is tenant. The relation of admittance to the surrender on which the Respondent relies does not extend beyond a death. The argument on the part of the Eespondent assumes the contrary, and it must have been on this fallacious assumption, that the decision appealed from proceeded. The Master of the Rolls founded his judgment upon that of Lord Mansfield in Vauyhan v. Atkins (5 Burr. 2764), where it was said that the surrender was the substantial part of the conveyance of copyhold lands, and the admittance merely the form which completed it, and that, therefore, the admittance would have its operation by relation back to the date of the surrender. His Honour observed, that Vaucjhan v. Atkins was not disputed by the counsel for the Appellant. Now it was not necessary for them to dispute the authority of that case, because there the heir of the surrenderee had been admitted, and Lord Mansfield's reasoning in his judgment proceeds on the admittance having relation back to the surrender. If, how-[715]-ever, Vau-ghan v. Atkins should be considered applicable to the present case, then we say, that it was not correctly decided, because it contradicted a fact by a fiction; and although fictions of law may be adduced to support facts, they cannot be used to alter, lessen or contravene them. In Rex v. Mil (may (5 B. & Ad. 254), Faughan v. Atkins was much relied on among other cases, and Littledale, J., said, that he did not consider the cases cited as of much weight. They also referred to Farder v. Wade (4 Bro. C. C. 521); Selwyn v. Sehm/n (2 Bum 1131; 1 Wm. Black. 222 and 251); Dixon v. Saville (1 Bro. C. C.-326); 'Lucas v. Commerford (3 Bro. C. C. 166); Rex v. Rennett (2 T. R. 197); Gale v. Gale (2 Cox, 136); Edwards v. Champion, (2 De G. M. & G. 202); Parke on Dower, p. 30; Co. Litt. 59 b.; Sir W. D. Evans's General View of the Decisions of Lord Mansfield (page 187). Mr. Swanston and Mr. Jolliffe, for the Respondent. The Master of the Rolls thought, that the heir could not avail himself of the principle of relation for one purpose, that of coming in as heir, and refuse to give effect to it as regards the right of the widow to freebench. If the heir had applied for admittance generally, that admittance would have related back to the surrender for all purposes. Faughan v. Atkins (5 Burr. 2764) is decisive as to this. That case has never been overruled. Rex v. Mildmay (5 B. & Ad. 254) merely decided, that admission has no effect beyond, but was defined, as to its extent, by the terms of the surrender. The husband was. fully seised as against everyone but the lord. In some manors, freebench extends, to the entirety of the land. If that had been so here, the widow would have been entitled to [716] admission, arid her admission would have related back to the surrender. It can make no difference in principle, that the freebench is here confined to a moiety of the land. They referred to 4 Co. 29 a.; Holdfast v. Clapham (1 T. R. 600); Right v. Banks (3 R & Ad. 664); Doe d. Bennington v. Hall (16 East, 208); King v. Turner (\ Myl. & K. 456); 1 Roper's Husband and Wife, 352; 1 Scriven on Copyholds (4th edit.), 72, and Sugden on Real Property Statutes, 261. Mr. Lee, in reply, referred to Pen-in v. Blake (4 Burr. 2579). [In the course of the argument the Lords Justices referred to Bacon's Abridgment, title "Bargain and Sale (E.)," p. 471, where it is aaid,-"So if a man bargains and sells lands by indenture, and then takes a wife and dies ; and, after, the deed is enrolled, the wife shall not be endowed;" citing in the margin And. 161; Cro. Car. 569. Their Lordships said that they could not admit that proposition to be law, although laid down in a work entitled to great respect, and that the authorities cited did not support it. At the conclusion of the argument judgment was reserved.] August 1. the lord justice knight bruce. The argument upon this appeal was so conducted, that, notwithstanding the frame of the bill and the language of the answer of the Defendant John Smith (the Appellant), I assumed then, and still assume, all parties to have been well content that the decree under appeal should not extend to any other subject than the claim of the Plaintiff to freebench in the tenements comprised in the surrender and deed dated respectively the 14th of [717] July 1845 (of which there are among the papers what I understand to be admitted 5D1G.K.S0.718. SMITH '(?. ADAMS 1049 copies), nor do I suppose that any one of the parties wishes our attention to be addressed to anything else. This I mention, because, on the face of the pleadings, it would seem that the decree ought to have extended to other matters. I shall confine myself, however, as I have intimated, to the question whether legally or equitably the Plaintiff, as the widow of George Smith, is entitled to free-bench in the tenements comprised in the surrender and deed that I have mentioned, a question which (to omit Ann Baseley now dead, and the debts, now, as I collect, paid off, omissions that do no injustice to the Plaintiff) may be thus stated, namely, whether where a copyholder, seised of tenements, to him and his heirs, at the will of the lord, according to the custom of the manor, has sold them, and having received the whole or the greater part of...
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...lands are made subject to the provisions of the statute ; and it is the more important to bear this in mind, because, in Smith v. Adams (18 Beav. 499; and on appeal, 5 De G. M. & G. 712), and in Powdnll v. Jones (2 Sm. & G. 407), it has been held that the Act does not apply to copyhold land......