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conveyance to the uses, upon the trusts, and subject to the power hereOF FREEHOLDS inafter limited, declared, and contained : AND THIS INAND ENFRAN- DENTURE ALSO WITNESSETH, that, in further CHISEMENT OF
pursuance of the said agreements and for the considerations
aforesaid, he the said A. B. hath enfranchised, and for Witnesseth, secondly, that purpose granted, released, and confirmed, and by these Enfranchise- presents doth enfranchise, grant, release, and confirm (6),
and the said E. B. &c., [ut supra), unto the said C. D. Parcels.
(in his actual possession &c., (see Precedent XVI. p. 198]), General words. and his heirs, ALL THOSE messuages, lands, tenements, and
ment of copy
tion. (Fryer v. Johnson, 2 Wils. 28; Ex parte Blackmore, 1 B. & Ad. 122). And if the claim be by a faculty to bury in the church, it would seem, that the parson as well as the ordinary must have concurred. (Frances v. Ley, Cro. Jac. 366; Gibson's Codex, 542; Bryan v. Whistler, ubi supra).
The right to a vault is an easement; and in case of disturbance, an action on the case and not of trespass, is the remedy. (Comyn's Dig. (Cemetery), B.; 8 B. & C. 294).
With respect to the law of tombs and monuments. (See Comyn's Dig. (Cemetery), C.; Co. Lit. 18. b.; Spooner v. Brewster, 3 Bing. 136; S. C. 10 J. B. Moore, 494; 2 C. & P. 34; Beckwith v. Harding, 1 B. & Ald. 508).
(6) An enfranchisement is the conversion of copyhold into freehold tenure, and is effected by the lord either conveying the fee simple to the copyholder, or releasing to him the seignorial rights. (Scriven on Copyholds, ch. xiv.; Burton's Law of Real Property, art. 1351; Cru. Dig. tit. x. ch. vi. s. 12, 19; ante, Vol. I. p. 169). The lord must either be seised of the fee simple of the manor, or have a power to enfranchise; but it is not necessary for the copyholder to have the whole copyhold estate in him. (See the authorities above cited).
The practice of conveyancers, when the lord is seised in fee, is, to make the enfranchisement by lease and release of the fee--not simply by release of the seignorial rights; when the enfranchisement is under a power, the terms of the power must be complied with. (See the Precedent of such an enfranchisement, infra). The word enfranchise does not seem to have any technical operation; it is used to express the intention of the conveyance. As the copyholder, by accepting an enfranchisement, takes the title to the manor, subject to all rights and incumbrances affecting it, the wife of the lord joins in the enfranchisement, for the purpose of releasing her right of dower. (See ante, Vol. I. p. 170; 1 Prest. Ab. 302).
co, Paya nure and ser
hereditainents, comprised and mentioned in the said second CONVEYANCE schedule hereunder written, or hereunto annexed, [gene- °F ral words-inserting immediately before “ and the rever- AND ENPRANsion"_" and all heriots, quit-rents, duties, suit and service of court, and all other customs and services due and payable for or in respect of the same premises, or any of them”]: TO HAVE AND TO hold the said messuages, lands, Habendum. tenements, hereditaments, and all and singular other the premises hereinbefore enfranchised, granted, and released, or expressed and intended so to be, unto the said C. D. and his heirs, (freed and absolutely discharged from the copy- –freed from hold tenure thereof, and of and from all rents, fines, pay
copyhold te ments, heriots, suits, customs, and services incident thereto, vices, or by custom, prescription, or otherwise howsoever, to be paid, rendered, or performed to the lord or lady, lords or ladies of the said manor of D. for the time being, for or in respect of the same premises, or any of them) (c), to the uses To uses. &c., [ut supra): AND THIS INDENTURE ALSO Witnesseth,
:, thirdly, WITNESSETH, that, in further pursuance of the said agreements, and for the considerations aforesaid, he the said A. B. hath granted and confirmed, and by these presents doth grant and confirm, and the said E. B. &c., [ut supra), unto the said C. D. and his heirs, ALL Such COMMONAGE Grant of comand right or title to common, of what nature or kind whatsoever, in, upon, and over all or any of the wastes, commons, and commonable lands of or belonging to the said manor of D., as the said C. D., or any of his ancestors, or any
(c) The words in the parenthesis are, perhaps, properly retained, as putting the meaning of the parties beyond a doubt; but they cannot be deemed essential, for it is clear, that the effect of an enfranchisement per se, is, to free the lands from the ancient rents and services, and that they could not, by reason of the statute quia emptores, be saved even by an express reservation. (Bradshaw v. Lawton, 4 T. R. 443).
A deed of enfranchisement should be inrolled on the court rolls, or where (as in the case in the text) the inrolment would be inconvenient and expensive, from the length of the deed; a notice of it should be entered on the rolls. Not that an inrolment or notice on the rolls is essential, but that it is a convenient mode of preserving evidence of the enfranchisement.
conveyance person or persons through whom the said C. D., or any
of his ancestors, claim, held, possessed, or enjoyed in reAND ENPRAN- spect of, and as appurtenant or belonging to, all or any COPYholds. part of the messuages, lands, hereditaments, and premises
hereinbefore enfranchised, or expressed and intended so to be, and the freehold and inheritance of all such commonable rights as aforesaid, in as large, ample, and beneficial manner, to all intents and purposes, as the said C. D., or any of his ancestors, or any person or persons through whom the said C. D., or any of his ancestors, claim, hath or have heretofore used and exercised all or any of the said rights and privileges, or as he or his customary heirs could or might have used or exercised the same if the aforesaid messuages,
lands, hereditaments, and premises had not been enfranHabendum. chised (d): TO HAVE AND TO hold the said right of com
mon, and all and singular other the premises lastly herein
before granted, or intended so to be, unto the said C. D. To uses. and his heirs, to the uses &c., [ut supra] (e): AND THIS
(d) The right of common in the waste of the lord within the manor is lost by enfranchisement, even though the conveyance of the copyhold be with all appurtenances. (Scriven on Copyholds, ch. xiv., and cases there cited). But a re-grant of the common may be made by sufficient words; (Worledge v. Kingswell, Cro. Eliz. 794); and is always inserted as a usual part of a deed of enfranchisement.
Even if the right of common were not re-granted, it would subsist in equity. (Styant v. Staker, 2 Vern. 250).
A right of common in the waste of the lord without the manor, or a right of way over another tenement, or any other easement which belongs to the land, and not to the copyhold estate, is not extinguished by enfranchisement. (Scriven, ubi supra).
(e) When the copyholder holds any other lands than those which are intended to be enfranchised, it has been usual to insert in the enfranchisement deed a proviso, “that nothing herein contained shall enfranchise, acquit, or discharge any tenements or hereditaments, held of the lord of the said manor, other than and except the tenements and other hereditaments hereinbefore particularly mentioned, and hereby released, or expressed and intended so to be, of and from the copyhold, or customary tenure thereof, or of or from any rents, payments, heriots, suits, customs, or services incident thereto, or to be paid, rendered, or performed in respect thereof.” But the proviso is clearly superfluous, and should be omitted.
INDENTURE ALSO WITNESSETH, that, in further conveyance pursuance of the said agreements and for the considerations of aforesaid, he the said A. B. hath remised, released, and AND ENFRANquit claimed, and by these presents doth remise, release, COPYHOLDS. and quit claim, and the said E. B. &c., (ut supra), unto Witnesseth, the said C. D. and his heirs, All those, the quit-rents or fourthly, re
lease of quitchief-rents, or other rents or payments whatsoever, payable rents. to the said A. B., out of or chargeable upon all or any of the messuages, land, and other hereditaments, comprised in the said first (f ) schedule to these presents, or any of them, TO THE END and intent, that the said last-mentioned hereditaments and premises may be held freed and discharged from the said quit-rents, chief-rents, and other rents and payments, and every of them : AND IT IS HEREBY Declaration of agreed and declared, between and by the parties to these uses. presents, that the several grants, releases, enfranchisements, confirmations, and dispositions hereinbefore made, shall, as to the hereditaments and premises hereinbefore granted, released, enfranchised, and disposed of respectively, or expressed and intended so to be, operate and enure to such uses, &c., [uses to bar dower with declaration as in Precedent XVII. p. 214), (covenants by A. B. for title, “ of or Covenants for to the said manor of D., with the appurtenances, and of or " to the said hereditaments and premises hereinbefore granted
There must be a covenant to produce the title deeds of the manor, which should, however, according to the usual practice, be taken by a separate deed.
(f) The rents expressed to be released, are said to be issuing out of the lands in the first schedule, but as these lands belonged to the vendor, and have, by a previous witnessing part, been conveyed by him to the purchaser, the necessity of the separate release of quitrents does not appear. The form, however, has been retained, as it will serve for a Precedent. Probably, the lands conveyed were demesne lands of the manor, which had formerly been granted, under certain rents, and had, afterwards, come again into the hands of the lord; although, even if that were the case, the release in the text would hardly be necessary.
Chief-rents are the rents paid by the freeholders of manors; quitrents those paid by the copyholders. (Cru. Dig. tit. xxviii. ch. 1, 8. 12; 2 Inst. 19).
conveyance and released, or expressed and intended so to be, and every
part thereof, (subject as to such of the said hereditaments AND ENFRANS as are hereinbefore enfranchised, or expressed and intended
so to be, to the copyhold or customary estate subsisting therein), for a good &c.," for quiet enjoyment-free from incumbrances- for further assurance, see Precedents XVI. and XVII. pp. 201, 216]. IN WITNESS &c.
FIRST SCHEDULE above referred to, or, referred to in the annexed Indenture.
SECOND SCHEDULE above referred to, or, referred to in the annexed Indenture.
CONVEYANCE TO USES OF A SETTLEMENT.
CONVEYANCE to the Uses of a SETTLEMENT,
on a Purchase by the Trustees.
THIS INDENTURE, made &c., Between A. B., of &c., [vendor], of the first part; C. B. of &c., widow, [a party consenting to the purchase), of the second part; and E. F., of &c., and G. H., of &c., (trustees of the settlement], of the third part: WHEREAS, by indentures of lease and release, bearing date respectively the 5th and 6th days of February, 1837, the release being made, or expressed to be made, between the said C. B., of the first part; the said A. B., of the second part; E. B., (then E. C., spinster, and now the wife of the said A. B.), of the third part; H. C., of the fourth part; the said E. F. and G. H., of the fifth part; H. W. and H. H., of the sixth part; and G. D. and S. H., of the seventh part; (being the settlement made previously to, and in consideration of the marriage then intended, and shortly after had and solemnised between the said A. B. and E. B.); the manors, messuages, lands, and other here