COPYHOLDS WITH RELEASE BY MORTGA- Covenant by vendor to surrender. ever by these presents,) He the said (g) A. B., with the privity and consent of the said C. D., (testified as aforesaid) (h), doth hereby, for himself, his heirs, executors, and administrators, covenant with the said E. F., his heirs and assigns, that (i) [he the said A. B., or his] heirs, shall and will, at or before the next customary court to be holden in and for the said manor of at the costs and charges of the said E. F. or his heirs, surrender, or cause and procure to be surrendered, into the hands of the lord or lady, lords or ladies of the said manor, according to the custom of the said manor, ALL AND SINGULAR the said messuages, or tenements, lands, and hereditaments herein before particularly mentioned, to which he 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, and which said messuages or tenements, lands, and hereditaments are delineated in the map or plan drawn in the margin of these presents, and are now better known by the description following, (that is to say) [insert modern To the use of description of property-general words]: To THE USE of the said E. F., his heirs or assigns (j), to be holden of the Parcels. Modern description. purchaser in fee. Creation of The Lord of the (g) "C. D., so far as relates to his own acts and deeds, and to the acts and deeds of his heirs, and to the said premises comprised in the said surrender of the 3rd day of January, 1801, and the 2nd day of July, 1802, respectively, doth hereby for himself, his heirs, executors, and administrators, and the said" (h) "And as to all the hereditaments hereinafter covenanted to be surrendered." (i) For the words in brackets substitute "they the said C. D. and A. B., and each of them, or their respective heirs." (j) It has been recently settled, that if copyholds be surrendered to such uses as A. B. shall appoint; and in default of, and until and subject to such appointment to the use of A. B. in fee, and A. B. appoint to C. D., C. D. can compel the lord to admit him under the original surrender without A. B. being first admitted and surrendering to C. D. (The COPYHOLDS WITH RELEASE GEE. lord or lady, lords or ladies of the said manor, according to the custom thereof, and by and under the suits, services, rents, fines, and heriots therefore due and of right accustomed, but freed and discharged from the said principal sums of £3,000 and £1,000, and every part thereof respectively, and all interest now due or to grow due for the same respectively: AND THIS INDENTURE ALSO Witnesseth, Secondly, reWITNESSETH (k), that, in pursuance of the said agree- lease by mortment in this behalf, and for the considerations aforesaid, he gagee. the said C. D., at the request of the said A. B., (testified as aforesaid), hath remised, released, and quit claimed, and by King v. The Lord of the Manor of Oundle, 1 Ad. & Ell. 283; S. C. 3 Nev. & Man. 484.) Of course, the application of the principle might be carried still further, for C. D. might appoint to such uses as E. F. should appoint, and in default to him in fee, and so on. The consequence would be, that, until either the original surrenderor or the purchaser, who was the donee of the power for the time being in force, died without exercising it, no surrender or admittance would be necessary, and the lord and steward would be deprived of all their emoluments arising from customary alienations. It is, however, apprehended that the lord may compel the tenant for the time being to attend at all the customary courts, and there to do suit and service; and that, by compelling such attendance, the tenancy would be made so burdensome to the surrenderor as to put an end to the practice. If a vendor has actually surrendered to uses in the above manner, it is probable that he could not afterwards compel the purchaser to be admitted, so as to relieve him from the annoyance; but, at any rate, it would seem that the counsel of a vendor ought to insist on the purchaser clothing himself with the legal estate, so as to release the vendor from any risk of being called on to attend courts, and do suit and service, and from all other liabilities incident to customary tenure. When a surrender has been made to uses in the above manner, it would seem that the purchaser could always, under the usual covenant for further assurance, compel the original vendor and his heirs to attend courts, do suit and service, be admitted, and do all acts needful for assuring the property to the uses; but that the costs of all such acts must be borne by the purchaser; and this would probably soon lead to the purchaser being admitted. It should be observed, that, if the form of surrender discussed in this note be adopted, the power should be, not simply to appoint by deed, (ante, p. 214), but by deed or will, so as to enable the purchaser to dispose of the land by will, without reference to his estate, because then the chain of appointments may be continued for an indefinite time. (k) This witnessing part will be omitted if the mortgagee has been admitted. 318 COPYHOLDS WITH RELEASE BY MORTGA GEE. Parcels. Witnesseth, venant Operative words of release. Satisfaction to be entered on the court rolls. these presents doth remise, release, and quit claim (1) unto the said E. F., his heirs and assigns, ALL SUCH and so many, and such part and parts of the said hereditaments and premises herein before covenanted to be surrendered, as were comprised in the said conditional surrenders of the 3rd day of January, 1801, and the 2nd day of July, 1802, respectively, freed and discharged of and from the said principal sums of £3,000 and £1,000, and each of them and every part thereof respectively, and all interest for the same or either of them, or any part thereof respectively, and of and from all actions, suits, accounts, reckonings, claims, and demand whatsoever, either at law or in equity, for, upon account, or in respect of the said principal sums, or either of them, or any part thereof respectively, or the interest for the same, or either of them, or any part thereof respectively: AND THIS INDENTURE ALSO WITNESSETH (m), that, in pursuance of the said agreement (1) These are the appropriate words of release, when it is intended to release property from any claim. The form anciently was "that the said [releasor] hath remised, released, and altogether from his heirs quiet claimed to the said [releasee], all the right, title, and claim, which he the said [releasor] hath, or by any means may have, of and in all that, &c." Lit. s. 445; and see Co. Lit. 264. b. This ancient form is now cut down to the present shape, and the words are repeated in the present tense; alterations which certainly have not improved the sense of the form. When it is intended to release a person from a claim, the usual words of release are "acquit, release, and discharge;" but as well in this as in the former case, the word "release" alone, or any word of similar import, would be sufficient of itself. The word "renounce," mentioned by Lord Coke, (Co. Lit. 264. b.), as a word of release, is more properly a word of disclaimer, and is so used in modern instruments. (m) This covenant to enter up satisfaction will not be needed when the mortgagee has been admitted; because, as the mortgagee will, in that case, join in the surrender, his so doing will furnish sufficient evidence on the court rolls of the satisfaction of the mortgage, so far as relates to the purchased property. When mortgages by conditional surrender of copyhold are discharged,' care should always be taken that evidence of the satisfaction of the mortgage is in some way preserved on the court rolls; when the mortgage has rested simply in covenant, no notice of the satisfaction should be entered on the rolls. COPYHOLDS WITH RELEASE BY MORTGA GEE. satisfaction. in this behalf, and in consideration of the premises, he the said C. D., at the request of the said A. B., (testified as aforesaid), doth hereby for himself, his heirs, executors, and administrators, covenant with the said E. F., his heirs and to enter up assigns, that he the said C. D., his executors or administrators, shall and will, at the costs of the said A. B., his heirs, executors, or administrators, immediately enter up, or cause and procure to be entered up on the court rolls of the said manor, satisfaction on the aforesaid conditional surrenders. [Covenant by C. D. with E. F., his heirs and assigns, against incumbrances; see supra, p. 249. Covenants by A. B. with C. D., his heirs and assigns, notwithstanding any act done by A. B. and C. D.-for right to surrender-for quiet enjoyment-free from incumbrancesfor further assurance. See supra, Precedents XXXIII. and XXI.] XXXV. BARGAIN AND SALE of COPYHOLDS, under BARGAIN AND a POWER of SALE in a WILL (a). SALE OF COPYHOLDS. Recital of will devising copy holds. THIS INDENTURE, made &c. BETWEEN A. B., of Parties. (a) As to the operations of a bargain and sale, under a power (see supra, p. 196, note (i) ); the present form may be easily adapted to the case of freehold estates. SALE OF COPY HOLDS. BARGAIN AND signed, and published (b) his last will and testament in writing, bearing date the day of, and thereby directed that all those his houses and lands at P. (being the said messuages, lands, and hereditaments hereinafter particularly mentioned, and intended to be hereby bargained -to be sold by and sold), should be sold by his executors thereinafter mentioned (c), and that the money to arise from such sale executors. (b) There seems to be no legal definition or explanation of the term "publish," but it appears to indicate a delivery or acknowledgment before witnesses. (See 1 Sug. Pow. 310, 312; Curteis v. Kenrick, 3 Mee. & Wels. 461; Mackinley v. Sison, 8 Sim. 561). A will made since the stat. 1 Vict. c. 26, does not need to be published, (sect. 9), and, therefore, in the recital of such a will, the form should be 'duly made and signed." The word "duly," is used in relation to all wills, as expressing that they were duly made, according to the forms required for disposing of the species of property to which they relate. The old form (borrowed from pleadings in equity) of introducing wills of freehold estates with the allegation that the testator "made his last will and testament, duly executed and attested in manner required by law for rendering valid devises of freehold estates," is now little used, except in acts of Parliament and such other instruments as require to be approved by persons unacquainted with the language of conveyancers. The phrase "last will and testament, in writing," is apparently taken from the Statute of Wills, 32 Hen. 8, c. 1, and 34 & 35 Hen. 8, c. 5; but as the testator is said to have signed the will, it does not seem very necessary to allege that it was in writing, unless with a view to contradict the supposition of its being printed or engraved. (c) The will in the text is informal; but it is usual in formal wills to direct that copyhold estates shall be sold by the trustees, instead of devising them to the trustees to sell; because, by so doing, the purchaser is at once admitted under the will, and bargain and sale, and the expense of the admittance of the trustees is saved. (Holder d. Sulyard v. Preston, 2 Wils. 400; Beal v. Shepherd, Cro. Jac. 199). But it would be otherwise if a life estate preceded the power, for it would be necessary for the tenant for life to be admitted; and the admittance of a tenant for life being the admittance of the remainderman, no fine would be payable on the admittance to the estate in remainder, unless by special custom. (Phypers v. Eburn, 3 Bing. N. C. 250). It will be of no service to give a power for sale of copyhold, unless a sale is to take place immediately after the testator's death; for the lord is entitled to seize the land, unless some tenant is admitted within the usual time, i. e. at the third court after the death of the testator. (Doe d. Bover v. Trueman, 1 B. & Ad. 736). In default |