Wood v Lambirth
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1840 |
| Date | 01 January 1840 |
| Court | High Court of Chancery |
English Reports Citation: 41 E.R. 534
HIGH COURT OF CHANCERY
S. C. 5 Jur. 741.
534 WOOD V. LAMBIRTH 1 PH. 9. wood it. lambirth. Nov. 1840; Jan. 25, June 28, 29, Awjmt 11, 1841. [S. C. 5 Jur. 741.] A surrender by the wife of a copyholder with ;his consent, and after having been separately examined, to the use of a purchaser from the assignees of the husband, who had become bankrupt, held effectual to bar her right of freebench, if any such existed by special custom, although at the time of such surrender, the purchase not having been completed, the purchaser had not any legal estate in the premises. Doctrine as to the operation of fictitious forms of conveyance. At a sale of the property of Isaac Biightwen, a bankrupt, by his assignees, in the month of February 1829, the Defendant Henry Lambirth became the purchaser of Lot 19, comprising a copyhold messuage and premises of which the bankrupt was at the time of his bankruptcy seised to him and his heirs, according to the custom of the manor of the rectory of Tollesbury, having been admitted tenant upon the surrender of one John Carrington in the year 1806. It appeared from the abstract of title delivered to the purchaser, and which commenced with the year 1734, that in the year 1787 the wife of one James Lufkin, who was then seised of the estate in his own [9] right, had joined with her husband in a surrender of it by way of mortgage ; and that subsequently, on the occasion of the admittance of a party after the death of the same James Lufkin, under a surrender made by him during his lifetime to the use of his will, his widow " came and in open Court remised and released to the purchaser all and all manner of dower and thirds, and other customary estate, right, and title to dower and thirds, and all arrears thereof which she might, should, or of right could or ought to have or claim of, in, to, or out of the said premises." Those entries were the only instances appealing upon the abstract, in which the wife or widow of a copyholder had taken part in any surrender of the estate. The purchaser, however, conceived that they afforded presumptive evidence of a special custom in the manor, entitling the widow of a copyholder to freebench out of all copyhold lands of which her husband might have been seised at any time during the coverture; and as the bankrupt had a wife at the time of his bankruptcy, who was still living, the purchaser objected to the title as being liable to her freebench. He also objected that there was no evidence that Carrington had not a wife when he surrendered the estate to the use of the bankrupt in the year 180G. No attempt was made by the assignees to remove the latter objection ; but for the purpose of removing the former, they procured the wife of the bankrupt to make a surrender, which was entered on the Court rolls as follows : - "Be it remembered, that on the llth day of July 1829, Mary Brightwen, the wife of Isaac Brightwen (the said Isaac Brightwen being a customary or copyhold tenant of the said manor), came, &c. ; and she being first...
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