XXXIV. COVENANT to SURRENDER COPYHOLDS.- COPYHOLDS WITH RELEASE GEE. THIS INDENTURE, made &c. BETWEEN A. B., of Parties. &c. [vendor], of the first part; C. D., of &c. [mortgagee], of the second part; and E. F., of &c., [purchaser], of the render to vendor. third part: WHEREAS, at a court holden in (a) and for the Recital of surmanor of in the county of on the 4th day of May, 1800, the said A. B. was admitted, on the surrender (a) It is usual to recite that the court was holden in, as well as for, the manor, because a customary court cannot be held out of the manor, unless there be a custom to warrant it. (Doe d. Leach v. Whitaker, 5 B. & Ad. 409, 433). A lord may grant to, or admit, a copyhold tenant out of court, and also out of the manor; and a steward may take a surrender, but cannot admit out of the manor. (Doe d. Leach v. Whitaker, ubi supra). A steward may, however, by special authority from the lord, admit out of the manor. (Ibid.) See, too, the authorities cited in the judgment and arguments. It is very common in instruments relating to copyholds, to speak of the court as the "Court Baron and Customary Court." The Court Baron is the court of the freeholders of the manor, of which they, being suitors, are judges; the Customary Court is the court of the copyholders, and of that the lord or steward is judge. (Co. Lit. 58. a.; Scriven on Copyholds, part 3, ch. xvii.) When a manor has a Customary Court, as well as a Court Baron, the proceedings of both may, and generally are, entered on he same roll. (Co. Lit. 58. a.; Com. Dig. Cop. R. 2; Burton's Law of Real Property, p. 418, arts. 1261, 1262). In preparing drafts, it seems quite sufficient to mention the "court" simply, as the proper court will be intended to be meant; or, if the draftsman please, Customary Court." To say, as sometimes is done, "Court Baron, or Customary Court," or "Court Baron" alone, is incorrect, as the copyholds are dealt with at the Customary Court; the phrase Court Baron and Customary Court is not objectionable, if, in truth, there were a Court Baron held with the Customary Court. Customary held within the manor. Distinction be- Baron and COPYHOLDS WITH RELEASE BY MORTGA GEE. of surrender by vendor to mortgagee. to vendor of another tene ment. of M. N., to ALL THAT [parcels from the court rolls] (b), TO HOLD the same unto the said A. B., his heirs and assigns, according to the custom of the said manor, and by and under the suits, services, rents, fines, and heriots therefore due and of right accustomed: AND WHEREAS, at a court holden in and for the said manor, on the 3rd of January, 1801, the said A. B. surrendered the said messuages or tenements, lands, hereditaments, and premises, to which he was so admitted as aforesaid, into the hands of the lord of the said manor; to the use of the said C.D., his heirs and assigns, subject to a condition for making void the said surrender on payment by the said A. B., his heirs, executors, administrators, or assigns, unto the said C. D., his executors, administrators, or assigns, of the sum of £3,000 on the day of, with interest for the same, after the rate, and at the times, and in manner in the copy of the said surrender now in recital mentioned: -of surrender AND WHEREAS at a court holden in and for the said manor, on the 5th day of February, 1802, the said A. B. was admitted on the surrender of P. Q. to [parcels from the court of rolls], TO HOLD the same to the said C. D., his heirs and assigns, according to the custom of the said manor, and by and under the suits, services, rents, fines, and heriots, therefore due and of right accustomed: AND WHEREAS, by an indenture bearing date the 1st day of July, 1802, and made, or expressed to be made, between [parties], -of vendor's Covenant to surrender to mortgagee. (b) The parcels are often mentioned in the recitals of the surrenders or admittances, the description being of course taken from the court rolls, and the modern description is added in the witnessing part. For the purchaser contracts to buy by the modern description, and there is sometimes a difficulty in making the reference from the description in the recited surrenders or admittances (if more than one) to the modern description. The object may generally be accomplished by referring from the recitals to the "hereditaments, firstly, secondly, &c., hereinafter described," and subjoining the modern description; but nothing is gained by this, and there is no objection in respect to copyhold property to mention the parcels in the recitals, there being no lease for a year. When the parcels are comprised in the recitals, the identification of them with the purchased property is made, it will be seen, in the recital of the contract for sale, and in the witnessing part. See further, ante, p. 67, n. (b), and p. 209, n. (c). COPYHOLDS WITH RELEASE GEE. for the consideration therein mentioned (amongst other things) the said A. B. did covenant with the said C. D., that he the said A. B., his heirs or assigns, would surrender into the hands of the lord of the said manor, the several pieces or parcels of land, messuages, hereditaments, and premises, to which the said A. B. was admitted on the said 5th day of February, 1802, to the use of the said C. D., his heirs and assigns, subject to a condition in the said indenture mentioned, for making void the said surrender thereby covenanted to be made on payment by the said A. B., his heirs, executors, administrators, or assigns, unto the said C. D., his executors, administrators, or assigns, of the sum of £1,000, on the day therein mentioned, with interest for the same, after the rate, and at the times, and in manner therein mentioned: AND WHEREAS the said A. B., in pursuance of of surrender the said covenants in the said indenture contained, did, on accordingly. the 2nd day of July, 1802, surrender into the hands of the lord of the said manor, the said hereditaments and premises by the said indenture covenanted to be surrendered to the use of the said C. D., his heirs and assigns, subject nevertheless to the condition in the said indenture mentioned: AND WHEREAS, by a deed poll bearing date the said 2nd day of July, 1802, and under the hand and seal of the said A. B.; the said A. B. charged all the said messuages, or after-purchased tenements, hereditaments, and premises, comprised in the property. said surrender of the 3rd day of January, 1801, as well with the payment of the said sum of £1,000 and interest, as with the payment of the aforesaid sum of £3,000, and the interest of charging the first mort gage on the to accrue due thereon as aforesaid (c): AND WHEREAS the of the mort day of (c) If the mortgagee has been admitted insert here— "And whereas, at a court holden in and for the said manor, on the the said A. B. was admitted, in pursuance of the said surrenders of the 3rd day of January, 1801, and the 2nd day of July, 1802, respectively, to the said premises therein respectively comprised." Of course, it is assumed that this is the correct place for the introduction of this recital, according to its date; if otherwise, or if there be more than one admittance, the recital or recitals must be inserted in their order of date. gage debts Variation. COPYHOLDS WITH RELEASE repayment of the said sums of £3,000 and £1,000, and interest for the same respectively, was secured to the said C. D., his executors, administrators, and asssigns, as well by the being otherwise mortgages aforesaid, as by mortgage of other hereditaments BY MORTGA- secured. -of surrender to vendor of another tene ment. -of state of mortgage debts. -of contract for sale. belonging to the said A. B. (d): AND WHEREAS, at a court holden in and for the said manor on the 7th day of November, 1802, the said A. B. was admitted on the surrender of X. Y. to [parcels from the court rolls], TO HOLD the same unto the said A. B., his heirs and assigns, according to the custom of the said manor, and by and under the suits, services, rents, fines, and heriots, therefore due and of right accustomed: AND WHEREAS the said principal sums of £3,000 and £1,000, remain due and owing on the aforesaid securities for the same respectively, but all interest on the same respectively has been paid up to the last day appointed for payment of interest on the same respectively: AND WHEREAS the said A. B., with the privity and consent of the said C. D., hath contracted and agreed with the said E. F. for the absolute sale to him of the said several messuages or tenements, and hereditaments, hereinafter particularly mentioned and covenanted to be surrendered, being the said hereditaments and premises to which the said A. B. was admitted on the 4th day of May, 1800, the 5th day of February, 1802, and the 7th day of November, 1802 respectively, as hereinbefore is mentioned, with their appurtenances, and the inheritance thereof in possession, according to the custom of the said manor, free from all incumbrances, except the rents, fines, heriots, suits, and services therefore due and of right accustomed, at or for the of agreement price or sum of £5,000: AND WHEREAS, upon the treaty for that mortgagee the said sale, it was agreed that the sum of £2,000, part of should receive Recitals in text not all essential. (d) This recital, and the subsequent one respecting the state of the mortgage debt, are not absolutely essential, but they serve to render the narrative more intelligible. They are not essential, because, if C. D. chooses to release the purchased estate, it is of no consequence whether his debt be otherwise secured or not; and because, if A. B. and C. D. agree that C. D. shall receive a certain part of the purchase-money, it is of no importance how much mortgage-money is owing to him. COPYHOLDS WITH RELEASE GEE. the said purchase-money or sum of £5,000, should be paid part of the purchase-money, and release the the same as is hereinafter contained: NOW THIS IN- Witnesseth: DENTURE WITNESSETH, that, in pursuance of the said agreement in this behalf, and in consideration of the Consideration. sum of £2,000 to the said C. D., at or immediately before the sealing of these presents paid by the said E. F., at the request and direction of the said A. B., (testified by his being a party to and executing these presents), (the receipt of which said sum of £2,000 he the said C. D. doth hereby acknowledge, and of and from the same and every part thereof doth acquit, release, and discharge the said E. F., his heirs, executors, administrators, and assigns, and also the said A. B., his heirs, executors, administrators, and assigns for ever by these presents, and doth declare the same to be in part satisfaction of the said principal moneys so due and owing to him the said C. D. as aforesaid); And also in Further conconsideration of the sum of £3,000 to the said A. B. at the sideration. same time paid by the said E. F., with the privity and consent of the said C. D. (testified by his being a party to and executing these presents), (The payment and receipt in manner aforesaid of which said sums of £2,000 and £3,000 respectively, making together the said purchasemoney or sum of £5,000, he the said A. B. doth hereby acknowledge, and of and from the same and every part thereof doth acquit, release, and discharge the said E. F., his heirs, executors, administrators, and assigns for (e) The variations in this and the subsequent notes apply to the case of the mortgagee having been admitted. In this place for "release," substitute "surrender." (f) Insert "freed and discharged." Object of the variations in this and the subsequent notes. |