COVENANT TO SURRENDER Remarks on dell. tracted and agreed with the said C. D. for the absolute one day, and the surrender is made on a subsequent day, the whole, in my opinion, must be taken as one assurance; as in the case where a deed of feoffment is executed on one day, and the livery of seisin is not made until a subsequent day. If that be so, the covenants in question will run with the land, and the persons who are the owners of the land can enforce them. But if they do not run with the land, then they are covenants in gross, and Morris must be considered as holding them for the benefit of the parties who claim by assignment under him. For, it is evident, from the form of the transaction, that the intention of the parties was, that the original covenants should either run with the land, or, if not, that they should remain with Morris for the benefit of his assignees. In my opinion, therefore, the finding of the master is right, for the covenants are capable of being enforced against Riddell's estate by the purchasers from Morris, either in their own names or in the name of their vendor." It will be observed, that, in the view which the Vice-Chancellor Riddell v. Rid- took of the case, it was unnecessary for him to decide whether Riddell's covenants did or did not run with the land; one way or the other, in equity, Billings was entitled to the benefit of them. And, it does appear, that the doctrine laid down by his Honor, is open to much remark. It is not easy to see the analogy between the covenant and surrender and the feoffment and livery; for the covenant has no legal effect on the land, the surrender alone is the legal assurance; while the feoffment and livery are only different parts of the same legal assurance. Suppose a covenant to make feoffment with livery, and that, in the deed of covenant, are contained the covenants for title; it would not then be maintained that they would run with the land; and, yet, the covenant in one case, is as much part of the assurance as in the other. Then, again, the Vice-Chancellor says, that the intention of the parties was, that the covenants should run with the land, but it cannot readily be admitted that the intention of the parties is to govern a purely legal question. If the intention of the parties is to determine whether covenants shall run with the land, there are very few which would not be made to do so. There is no question here about the estate of the parties as there was in Roach v. Wadham, (6 East, 289); it is clear that the covenantee had no legal estate when the covenants were entered into, and that the question as to whether covenants run with the land is a legal question. (See Whitton v. Peacock, 2 Bing. N. C. 411; S. C. 3 My. & Ke. 325). If the expression of opinion in Riddell v. Riddell is law, there is no objection to taking the covenants for title before the surrender; but as (it is submitted) the case cannot be relied on, the safer course, at present, is to make the surrender precede the deed of covenants, and to make the assurances bear even date with each other. COVENANT TO SURRENDER COPYHOLDS. sale to him of the messuages, pieces, or parcels of land, and other hereditaments hereinafter (b) [particularly] mentioned, [and covenanted to be] (c) surrendered, with their appurtenances, and the inheritance thereof, in possession, according to the custom of the manor of which the same are holden, free from all incumbrances, except the rents, fines, heriots, suits and services therefore due and of right accustomed, at or for the price or sum of £——— (d) : NOW THIS INDENTURE WITNESSETH, that, in (e) Witnesseth. pursuance of the said agreement and in consideration of Consideration. holds. The legal assurances of copyholds, the surrenders, admittances, Legal assurand other instruments, are usually prepared by the stewards of the ances of copymanors, who are generally the only persons acquainted with the peculiarities of their respective manors. Precedents of these assurances may be found in the works of Watkins and Scriven on Copyholds; a form of memorandum of a surrender for barring an estate tail will be given in another part of this work. It is usual in the deed accompanying the surrender to connect the description of the property surrendered, or intended to be surrendered, with the description on the court rolls, by some reference of the kind in the text. But this is merely done for convenience, and is not to be adhered to, if such a course would disclose on the deed any estates or incumbrances which it is undesirable to shew. (b) "described and" (c) "to have been" (d)" and upon the treaty for the said sale it was agreed, that the said A. B. should enter into such covenants as are hereinafter contained: AND WHEREAS, in pursuance of the said agreement, the said A. B., at a court baron and customary court, holden in and for the manor of in the county of surrendered into the hands of the lord of the said manor by his steward, and according to the custom of the said manor, ALL &c. [parcels], with their rights, easements, and appurtenances, to the use of the said C. D., his heirs and assigns, according to the custom of the said manor, and by and under the suits and services, rents, fines, and heriots therefore due and of right accustomed." (e) "further" Description of copyhold par cels. COVENANT TO SURRENDER Receipt. Covenant to surrender. Parcels. To the use of purchaser. Covenants by vendor, -for title; the sum of £——, at or [immediately] before the sealing day of admitted as the heir of M. N., deceased; and also, ALL &c. [ parcels], to which said last-mentioned hereditaments the said A. B. was, at a court holden in and for the said manor on the day of, admitted on the surrender of X. Y. [general words]; To THE USE of the said C. D., his heirs and assigns, to be holden according to the custom of the said manor, and by and under the suits and services, rents, fines, and heriots therefore due and of right accustomed: AND THE SAID A. B. doth hereby for himself, his heirs, executors, and administrators, covenant with the said C. D., his heirs and assigns] in manner following; (that is to say), that for and notwithstanding any act, deed, matter, or thing whatsoever by him the said A. B., or any of his ancestors, made, done, committed, or executed, or knowingly or willingly suffered to the contrary, he the said A. B., at the time of the [sealing and delivery of these presents, is] (ƒ), lawfully, rightfully, and absolutely seised of and in, or well and sufficiently entitled to the said hereditaments and premises hereinbefore [covenanted to be] (g) surrendered, and every part thereof, for a COVENANT TO SURRENDER good, sure, perfect, absolute, and indefeasible estate of inheritance to him and his heirs in possession, according to the custom of the said manor, and by and under the suits and services, rents, fines, and heriots therefore due and of right accustomed, without any manner of condition, use, trust, property, power of revocation, equity of redemption, or any limitation of any use or uses, or other restraint, cause, matter, or thing whatsoever, to alter, charge, defeat, incumber, revoke, or make void the same: AND THAT for -for right to and notwithstanding any such act, deed, matter, or thing whatsoever, as aforesaid, he the said A, B. [now hath] (h) in himself good right, full power, and lawful and absolute authority to surrender the said hereditaments and premises herein before [covenanted to be] (i) surrendered to the use of the said C. D., his heirs and assigns, according to the custom of the said manor, and in manner aforesaid, [according to the true intent and meaning of these presents]: surrender; AND THAT it shall be lawful for the said C. D., his heirs for quiet enand assigns, from time to time, and at all times hereafter, joyment; peaceably and quietly to enter into, upon, and to have, hold, occupy, possess, and enjoy the said hereditaments and premises, and to receive and take the rents, issues, and profits thereof, and of every part thereof, to and for his and their own use and benefit, without the lawful let, suit, trouble, denial, eviction, interruption, claim, or demand whatsoever of or by the said A. B., or his heirs, or of or by any other person or persons lawfully or equitably claiming or to claim by, from, or under, or in trust for him, them, or any of them, or his or any of his ancestors, but, nevertheless, under and subject to the rents, fines, heriots, suits and services therefore due and of right accustomed: AND THAT free and clear, and freely and clearly, and ab- free from insolutely acquitted, exonerated, released, or otherwise by cumbrances; him the said A. B., his heirs, executors, or administrators, well and sufficiently saved, defended, kept harmless, and COVENANT TO SURRENDER --for further assurance. indemnified of, from, and against all and all manner of former and other estates, titles, troubles, charges, debts, and incumbrances whatsoever, either already had, made, executed, occasioned, or suffered, or hereafter to be had, made, executed, occasioned, or suffered by the said A. B., or his heirs, or any person or persons lawfully or equitably claiming or to claim by, from, or under, or in trust for him, them, or any of them, or his or any of his ancestors: AND FURTHER, THAT he the said A. B., and his heirs, and all and every other person or persons having or claiming, or who shall or may have or claim any estate, right, title, interest, inheritance, use, trust, property, claim, or demand whatsoever, either at law or in equity, of, in, to, or out of the said hereditaments and premises herein before [covenanted to be] (k) surrendered, or any of them or any part thereof, from, or under, or in trust for him the said A. B., or his heirs, or any of his ancestors, shall and will, from time to time, and at all times hereafter, upon every reasonable request to be made for that purpose, by and at the proper costs and charges in the law of the said C. D., his heirs and assigns, make, do, acknowledge, and execute, or cause and procure to be made, done, acknowledged, and executed, all and every such further and other lawful acts, deeds, things, devices, surrenders, and assurances in the law whatsoever, for the further, better, and more perfectly and absolutely surrendering and assuring of the said hereditaments and premises hereinbefore [covenanted to be] (k) surrendered, and every part thereof, to the use of the said C. D., his heirs and assigns, according to the custom of the said manor, and under and subject to the rents, fines, heriots, suits and services therefore due and of right accustomed, as by the said C. D., his heirs or assigns, or his or their counsel in the law shall be reasonably devised or advised and required. IN WITNESS &c. (k) "mentioned to have been" |