The King against Dame Jane St. John Mildmay, Lady of the Manor of Marwell, in the Country of Southampton, and William Bray, Esquire, her Steward of the said Manor
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1833 |
| Date | 01 January 1833 |
| Court | Court of the King's Bench |
English Reports Citation: 110 E.R. 786
IN THE COURT OF KING'S BENCH
S. C. 2 N. & M. 778.
the king against dame jane st. john mildmay, Lady of the Manor of Marwell, in the County of Southampton, and william bray, esquire, her Steward of the said Manor. 1833. A copyholder in fee surrendered to the use of another person, and afterwards, and before the admittance of the surrenderee, committed and was convicted of simple felony : there being a custom in the manor that any tenant of customary tenements, who should commit and be convicted of felony, should forfeit his said tenements to the lord. Held, that the surrenderor, before admittance, was still tenant for the purpose of forfeiture ; and that his estate was forfeited to the lord, and the surrenderee not entitled to be admitted. [S. C. 2 N. & M. 778.] Mandamus, reciting that the manor of Marvell, from time immemorial, had been an ancient manor, within which there were various copyhold tenements granted by and held of the lord or lady of the manor, according to the custom of the manor, and demised and demiseable by copy of court roll, according to the custom of the manor, and that the lord or lady, and the steward for the time being, held customary courts for the manor, and accepted, and of right ought to accept, all such surrenders of any of the said custom-[255]-ary tenements as have been and are duly tendered for acceptance, according to the custom; and also of right ought to make re-grants of, and admittance to, such customary tenements as have been surrendered for that purpose, to persons entitled thereto, and to such intents as they might have required, and may require, according to the custom. It then stated that John Boyes, on or about the 4th of August 1830, then being one of the copyhold and customary tenants in fee of certain tenements of the manor according to the custom, did duly make a surrender in fee of the said tenements into the hands of the lady of the manor, to the use and behoof of H. Southwell and his heirs for ever, according to the custom of the manor, upon condition that, if Boyes should pay to Southwell the full sum of 5001. with 4J per cent, interest on the 4th of February then next, the surrender was to be void; that the surrender was taken out of court by the deputy steward, and duly enrolled at the next general court holden on the 26th of October 1830, and that Boyes did not pay to Southwell the sum of 5001. with interest, by reason whereof the same surrender remained in full force, and Southwell was entitled in pursuance thereof to be admitted as tenant in fee of the premises mentioned in the surrender; that application had been made to the defendants by Southwell to admit him, and that the defendants refused. It then commanded the defendants to admit him. The defendants by their return conceded generally the right of admission as stated in the mandamus, but alleged an immemorial custom within the manor " that, if any customary tenant of the said manor holding customary tenements in fee or otherwise, parcel of the manor, at the will of the lord or lady of [256] the said manor, according to the custom of the manor, should commit felony, and should be convicted thereof, 5 B. & AD 257. THE KING U DiAME JANS ST. JOHN MILDMAY 787 he should forfeit his said customary tenements within the said manor to the use and benefit of the lord or lady of the said manor for the time being, and his or her heirs or successors for ever ò that Boyes on the 4th of August 1830 duly made the surrender, and the same was presented; that after the said surrender and presentment thereof, Boyes committed and was convicted of felony, which conviction remained of record, and was not since reversed or set aside." It then set out the record of the conviction for feloniously stealing, taking and carrying away five sovereigns, and that the judgment of the Court was, that Boyes should be transported for seven years; that by reason of the commission of the felony aforesaid, and of the said conviction, the said copyhold tenements had escheated to the lady of the manor according to the custom, and, therefore, she seized into her hands the same, and could not admit Southwell to the same, as by the writ she was commanded. A. rule nisi was obtained for quashing this return as insufficient, and for issuing a peremptory mandamus. The Court ordered the case to be set down in the special paper for argument, and it was argued (a)1 in last Hilary term by Dampier, for the Crown. The lord cannot take advantage of a forfeiture between surrender and admittance, and a peremptory mandamus ought to issue. The surrenderor was possessed of an estate in fee. The return admits that the surrender was enrolled regularly, [257] arid made for valuable consideration. It was irrevocable by the surrenderor: it was an actual conveyance of the property, not a mere agreement to convey: and, that being so, the surrenderee, who was always ready to be admitted, has a right to call on the lord to perfect the conveyance. The lord's claim to forfeiture accrued after the surrender, by escheat. No case is to be found of an escheat intermediate between surrender and admittance. There is one case, however, which may direct the Court. Suppose a testator, seised in fee, surrenders to the use of his will: he dies without heirs, and with a will. The lord must admit the appointee. He cannot set up the escheat intermediate by the death of the tenant without heirs. It is true that, in that case, he might again surrender the estate in fee, if he chose, and it would pass by such surrender: Fttch v. Hockley (Cro. Eliz. 442. 4 Rep. 23 a.), Southcote v. Adams (1 Roll. Rep. 256). The testator, in this supposed case, having surrendered to the use of his will, might, during his life, forfeit or re-surrender: the reason is, because the cestui que use is unknown; but, as soon as he is known, his right to admission enures, and cannot be defeated by escheat. The knowledge and the valuable consideration of and by the cestui que use are important. In the present case, at the time of the surrender, both existed. The appointee's claim is weaker than the cestui que use's; for to the former is required a will and an admittance; to the latter only admittance. It is necessary, in the absence of all precedents as to copyholds, to refer to analogous cases as to freeholds. A devise, though it takes effect [258] after the testator's death, will prevent an escheat (a)2. In Goodcheap's case (&), a feme covert, seised of lands in London, devised them to be sold by her executors, and died without heirs; and the question was, if the land should escheat, or if the executors might sell. But it seems the executors might sell, for the land is bound by this devise, and cannot escheat. There, the testatrix dying without heirs, the King, as lord, would have taken by escheat, had not the vendee of the executor taken by a species of relation; for an immediate devise has a sufficient inception in the lifetime of the testator to prevent an escheat. Thus, in 31 H. 8, 45 b., it is said, if a man devise land to another, and die without heir, the land will not escheat, because the devise prevents the escheat by inception in his life(c). So the judgment in this ease ought to be against the lord, on the ground of relation, which has a very wide operation in cases of copyhold. The admittance relates to the surrender, and the surrenderee's title begins from the date of it. Several instances of relation are put in a note to Grantham v. Copley (2 Saund. 422 e., n. 2). One is from Co. Litt. 59 b.: -" If two joint tenants be of copyhold lands in fee, and the one out of Court, according to the custom, surrender his part to the lord's hands to the use of his last will, and by his will deviseth his part to a stranger in fee, and dieth, and at the next Court the surrender is presented, by the surrender and presentment the jointure was (a)1 Before Littledale, Taunton, and Patteson Js. (a)2 Co. Litt. 236 a., u. (1); and see 3 Cruise Dig. 456. (5) 49 Ed. 3, fo. 16, abridged in Brooke's Abr. tit. Devise, pi. 10. (c) Cited in 1 Rolle, 214. 788 THE KING V. DAME JANE ST. JOHN MILDMAY 5B&AD.259. severed, and the devisee ought to be admitted to the moiety of the lands; for [259] now by relation the state of the land was bound by the surrender." After the surrenderee has been admitted, he may lay his demise in ejectment to recover the copyhold premises, on the day of the surrender, or any day between that and the admittance; Holdfast v. Clapham (1 T. R. 600). Can- v. Singer (2 Ves. sen. 603), shews that, where there is no custom prescribing the mode of barring an entail of copyhold, it may be barred by surrender to the use of a will. In that case, Willes C.J. says,- " When there is a will and admittance, that has a retrospect to the surrender to all intents, and it is therefore a bar from the time of the surrender, not from the death of the testator." But it will be said, that the doctrine of relation applies only as between the parties, or those claiming under them, and that here the lord is a stranger to the surrenderor, and as he claims an interest, and is not merely an instrument of conveyance, he is not barred. First, it is a universal rule, in all conveyances where there are several times and acts, that there should be a relation of all the subordinate parts to the most essential part. Secondly, a joint tenant, by whose surrender the right of survivor is barred, Co. Litt. 59 b., and an issue in tails whose estate is barred, Carr v. Singer (2 Ves. sen. 603), are strangers to the surrenderor. Thirdly, the lord did not at one time (i.e. before the forfeiture) claim an interest, the interest was then in the surrenderee, Faughan v. Atkins (5 Burr. 2764): and one who has undertaken to hold as...
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