Thomas Graham against Jeses Jackson
| Jurisdiction | England & Wales |
| Judgment Date | 24 January 1845 |
| Date | 24 January 1845 |
| Court | Court of the Queen's Bench |
English Reports Citation: 115 E.R. 306
QUEEN'S BENCH
S. C. 14 L. J. Q. B. 129; 9 Jur. 275.
[811] thomas graham against jesse jackson. Friday, January 24, 1845. In the manor of L. in Cumberland, the custom of tenure (called tenant-right) is that the freehold is in the lord, and the tenant holds of the lord, to him and hi heirs for ever, according to the custom of the manor, at fixed rents and services. A fine is paid on every admittance. On alienation, a deed of bargain and sale is executed by the alienor to the alienee, which the alienor brings into Court, whereupon the steward, by proclamation, calls upon any one to come forward who can say why the alienor shall not surrender into the hands of the lord ; he then says to the alienor, " You surrender into the hands of the lord, to the use of the alienee, his heirs and assigns; are you content to make this surrender?" On the-alienor assenting, the steward, by proclamation, calls on any one to come forward who can say why the alienee should not be admitted tenant. Then the steward says to the alienee, "In the name of the lord I admit you tenant, to hold to you, and your heirs and assigns, according to the custom." The jury then present the alienee as tenant on the alienation of the alienor, to hold to him, his heirs and assigns, according to the custom : the bargain and sale recites a licence from the lord to alien, which, after the admittance, is indorsed on the deed of bargain and sale; the licence is a matter of course, and a fixed sum is paid for it. When a married woman conveys, she and her husband execute the bargain and sale in court; the wife is then separately examined, and, after that, the proceedings go on as before stated : or the husband and wife may, out of court, execute the bargain and sale, and surrender, before the lord, his steward or deputy, who examines the wife separately. Surrenders out of court may be made by or to the parties themselves, or their attorneys: the surrender may be made to the lord himself, or his steward or deputy. In all cases the surrender is stated to be made to the lord : and the admittance afterwards may take place either in or out of court. The surrender and admittance are in all cases entered on the rolls. A married woman, who before her marriage had been admitted as tenant, executed, jointly with her husband, out of court, a bargain and sale, being previously examined by the deputy steward. By the deed, the husband and wife " granted, bargained, sold, aliened, surrendered, set over and confirmed " (with the lord's licence) to the alienee, according to custom; then followed a clause, by which the husband and wife " do, and each of them doth, hereby severally and respectively ordain, constitute and appoint" J. " their and each of their several and respective attorney, for them, and in each or either of their several names," at the next or other court, to surrender into the hands of the lord according to the custom. At a court, holden after the wife's death but in the life of the husband, J. surrendered to the lord ; and the alienee was admitted. The entry was, that the husband and wife, by J., surrendered to the lord to the use of the alienee. On a case stating the above facts, Held, 1. That the surrender to the lord was an essential part of the alienation; and that the bargain and (b) Wightraan J. was absent. (c) The above decision, on the effect to be given to the mother's maiden settle ment, was re-consirlerad and upheld by the Court in Regina v. The Inhabitants of Birmingham, argued in Hilary term 1846, and decided in the ensuing vacation, February 14th. 6Q. B. 812. GRAHAM V. JACKSON 307 sale, without such surrender, did not pass the estate. Per Lord Denman C.J. Especially as the case concluded by stating the question to be, whether the deed of bargain and sale, and the surrender and admittance, were sufficient, complete and valid, as against the heir. 2. That J., as attorney for the husband, had no power to surrender. 3. That, assuming J. to be lawfully constituted attorney for the wife (and, per Patteaon J. semble, he was not), the power expired by her death, and the surrender was therefore void. [S. C. 14 L. J. Q. B. 129; 9 Jur. 275.] Special case (a). In the manor of Linstock, in the county of Cumberland, which is the property of the See of Carlisle, the custom of tenure is that termed tenant-right. The freehold of the customary tenements is in the lord. The [812] tenant holds, to him and his heirs and assigns for ever, of the lord, according to the custom of the manor, under fixed customary rents, and performing certain customary duties and services, the tenements descending and being descendible from the ancestor to the heir, as of the hereditary right of the tenant, called tenant-right. A fine of a silver penny is paid on the admittance of every heir, purchaser or mortgagee. On the alienation of customary lands and tenements within this manor, a deed of bargain and sale is executed by the parties, stamped with an ad valorem stamp. This deed of bargain and sale is in one form. The alienor appears with this deed of bargain and sale in court. Proclamation is then made by the steward in the following words. "If any one can aught say why he" (the alienor) " should not surrender into the bands of the lord the customary tenements " (describing them as on the roll), " let him come forward, and he shall be heard." The steward then says to the alienor, "You" (alienor) "surrender into the hands of the lord of this manor the premises " (specifying them as on the roll), " to the use and behoof of" (the alienee), " hia heirs and assigns, according to the custom. Are you content to make this surrender1?" The surrenderor (alienor) says, "Yes." Proclamation is then made by the steward in the following words. " If any one can aught say why" (the alienee) "ought not to be admitted tenant of the premises surrendered to his use by" (the alienor), " let him come forward, and he shall be heard." The alienee is then called up. The steward says : "In the name of the lord of this manor, I admit you tenant of all these premises" (describing them as in the roll), " to hold to you and your heirs and assigns, according to [813] the custom; and you are admitted tenant accordingly." A memorandum is then made in the court paper of the day : "We present and find " C. D. " tenant, on the alienation of " A. B,, " of all these premises " (describing them as on the roll), " to hold to him, hia heirs and assigns, according to the custom." The jury sign this paper. A form of this verdict paper was annexed to the case. The material parts were as follows. " Manor of Linstock.-At a court leet and view of frankpledge, with a court baron, of the Right Eeverened," &c. " held at," &c., "on," &c. (1st May, 1767). "The names of the jurors sworn," &c. (fourteen names): "all sworn." "Which jurors, being all duly sworn, do say upon their oaths as followeth. "We find Jane Reed, spinster, tenant by mortgage from William Sturdy and John Robinson, of all that the freehold lands in," &c., "of the yearly free rent of," &c. " We find Thomas Little, of Derby, right heir to his father, Thomas Little, late of Brewstock, deceased, of all that his customary lands in Brewstock," &c. " they all being of the yearly customary and apportioned rent of Is. 2d." " We find Thomas Dalton, clerk, tenant, by purchase from Thomas Little, of Derby, of two closes," &c., "of the yearly apportioned rent of Is. 2d." The deed of bargain and sale recites a licence from the lord to alienate: and, after the alienee has been admitted as above, the licence of the lord to alienate is indorsed on the deed of bargain and sale as follows. [814] "On behalf of the Right Reverend Father in God, Hugh Bishop of Carlisle, I do hereby license and allow of the within deed, provided the same be no way prejudicial to the lord bishop, or his successors, (a) It was understood that the case was drawn by an arbitrator. 308 GRAHAM V. JACKSON 6 ft. B. 8W. lord of the manor, with regard to the rents, fines, duea, duties and services accustomed for the within mentioned premises." If all the requisites of the custom have been complied with, the licence is matter of course, for which 5s. 3d. is paid, although the deed may comprehend more than one copyhold tenement. There is no instance of a licence being refused. The licence generally bears date the day of the surrender and admittance. The deed of bargain and sale is never mentioned or referred to on the rolls of the court in an alienation, excepting in case of mortgage; in which case it is referred to as follows. " To hold," &c., " subject to redemption by the said " A. B., " his heirs or assigns, on repayment by him to the said " C. D., " his executors, administrators or assigns, of the principal sum of" (mentioning the mortgage money), "with interest for the same, after the rate and at a time mentioned in a certain indenture of customary bargain and sale, bearing date," &c., "made between," &c. "of the one part," and, &c. "of the other part." Before the recent Statute of Wills, 7 W. 4 & 1 Viet. c. 26, lands in this manor were not devisable. In cases of a customary tenant wishing to dispose of his customary lands after death, he conveys to a third person, a trustee, in the same manner in every respect as upon an ordinary alienation. The trusts are declared by a separate instrument, which does not appear upon the court rolls. The trusts are generally declared to be in trust for the alienor during his life, and, after his death, [815] on trust to convey to such persons, in such manner, as the alienor shall by deed or will appoint. The alienee, after the death of the alienor, makes another alienation in the ordinary customary manner, according to the trusts which had been declared by the separate instrument. Neither the lord nor his steward is informed of the trust, or that the alienation is in conformity with any trust. When a...
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