Copyhold - Definition - Law Dictionary Home Dictionary Definition copyhold

Definition :

Copyhold. Tenure in copyhold has been abolished under the (English) L.P. Acts, 1922 and 1925, and the Amending Acts of 1924 and 1926, but the greater part of the former title on this subject has been retained verbatim in view of the importance of the subject in examining titles. In the previous edition of this work, copyhold was described as a base tenure founded upon immemorial custom and usage; its origin is undiscoverable, but it is said to be the ancient villeinage modified and changed by the commutation of base services into specified rents, either in money or money's worth.

A copyhold estate is a parcel of the demesnes of a manor held at the lord's will, and according to the custom of such manor. The tenant may have the same quantities of interest in this tenure as he may enjoy in freeholds, as an estate in fee-simple or (by particular custom) fee-tail, or for life, and he may have only a chattel interest of an estate for years in it. By the custom of some manors, the estate devolves upon the heir on the ancestor's death, and is called a copyhold of inheritance. As far as the quantity and modification of interest are concerned, the tenant's estate partakes of the nature of a freehold, but because it is held by a base instead of a free tenure, it is called a copyhold. Viewing his estate, then, through the medium of its holding or tenure, the tenant is merely a tenant-at-will; but it is to be remarked that his tenancy at will must be according to custom, which always regulates the copyholder's interest, upon which interest the lord has no power whatever to encroach. Free copyholds or customary freeholds, however, are held according to the custom of the manor, and altogether independently of the will of the lord, while copyholds of base tenure are held merely at the lord's will. The law certainly considers the freehold to be in the lord (except in the case of strict customary free holds, when the freehold is in the tenant), and the tenant to possess his customary estate according to the quantity of interest it is intended he should possess, but the law will protect the copyholder, and will not permit him to be at the will or wayward caprice of the lord. The minerals in copyhold land belong to the lord, and so does the timber, whence the maxim, 'The oak scorns to grow save on free land.'

There are four circumstances necessary to the existence of a copyhold estate:'(1) A manor; (2) a court; (3) the land must be parcel of the manor; and (4) it must have been demised or demisable by copy of court roll from time immemorial.

A manor is essentially necessary, for all copyholds must be parcels of manors; and so is a court, for a copyholder has no other evidence of his title than the rolls of the court, which he can inspect and take copies of to use as he may think proper; and the Court of Queen's Bench (now the King's Bench Division of the High Court of Justice) will order the lord to allow such inspection, and if the lord then refuse, he will be attached. There are two courts incident to every manor'a court baron or free-holder's court, and a customary court, which only relates to the copyholders, who form the homage and transact the necessary business, the lord or his steward presiding as judge. Although these courts are essentially distinct, yet they are usually held at the same time, and the same roll serves to record the proceedings of both. In the court baron the suitors are judges. In the customary court the suitors are assistants to the lord, or his steward, who is the judge. It is obvious that the lands granted must be parcel of a manor, seeing that a copyhold is part of the demesnes of a manor, but it is not absolutely necessary that the lands should continue parcel of the manor. And because this tenure derives its whole force from custom, the lands must have been demisable by copy of court roll from time immemorial, for the two pillars, upon which every custom rests, are common usage and existence time out of mind. No copyhold estate can, therefore, be created at the present day.

Copyhold customs are divided into two species:'(1) General, which extend to all manors in which there are copyholders, and are warranted by the common law, and of which the courts of law take judicial notice, without being specially pleaded; and (2) Particular, which prevail in some manors only, and which must be specially pleaded. They are construed strictly, and when they are contrary to reason, morality, or justice, or cannot be reduced to a certainty, the courts will not give effect to them.

The following services and incidents are by general customs annexed to copyholds:'

(1) Fealty, but the oath of fealty is now generally respited.

(2) Suit of Court, for every copyholder is bound to attend the lord's court, and he sworn of the homage.

(3) The copyholder is entitled to estovers, i.e., housebote, hedgebote, and ploughbote, unless restrained by particular custom.

(4) He cannot commit any kind of waste, unless there exists a particular custom to warrant it.

(5) Copyholds of inheritance are descendible accord-ing to the rules of the common law, unless the custom be otherwise, in which case custom must prevail. Subject to any such custom, the alterations effected by the (English) Inheritance Act, 1833 (3 & 4 Wm. 4, c. 106), are applicable to the species of tenure.

(6) Copyholds are alienated by surrender, according to general custom, followed by admittance at the hands of the lord or his steward, and they are devisable.

(7) A copyholder by general custom may make lease for a year, and with the lord's licence he may lease for any number of years.

(8) Copyholds are liable to all sorts of debts, by 3 & 4 Wm. 4, c. 104, and the (English) Judgments Act, 1838 (1 & 2 Vict. c. 110).

(9) The widow of a copyholder, according to a particular custom, is entitled to a certain portion of her husband's lands, which varies in quantity, as a half, a third, a fifth, or the whole. It is called her free-bench. It is generally an estate for life, but is forfeited by a second marriage or incontinency.

The widow's free-bench is barred by a jointure, whether legal or equitable; or by the alienation of the copyhold lands by the husband, or even by an agreement to convey, or by forfeiture, or by a grant of the freehold by the lord to the husband for then the copyhold is destroyed, or by a devise expressed to be in satisfaction of it.

(10) Copyholds, by special custom, are subject to curtesy, and, by the custom of some manors, the husband is entitled to courtesy, though he have no issue by his wife, but is forfeitable on a second marriage.

(11) Upon every descent of a copyhold estate, a sum of money or fine is due to the lord from the heir upon his admission, as a consideration for the renewal of a grant. If the heir refuse to be admitted, the lord may seize the estate to his own use. The lord is also entitled to fines upon all voluntary grants, upon the admission of tenants by the curtesy, the free-bench, and indeed upon alienation generally, the only exception being in case of bankruptcy. No fine is due upon the admission of a remainderman, unless by special custom, because the admission of the tenant for life is generally deemed the admission of the remainderman, nor are fines due upon a mere change of the tenant's interest, nor upon a covenant or agreement to surrender, because it is only due upon an actual admittance. Tenants in common pay this fine apportionably, each according to his share. Joint tenants and coparceners pay a single fine for all. The practice as to the payment of the fine on the admittance of joint tenants in this: two years' value is paid for the first life, half of that on the second, and a half of that half on the third, and so on, according to the number of the tenants. Joint tenants succeed each other by right of survivorship and without a new admittance, and fines are not due but upon admittance; the application, therefore, of the general rule to the case of joint tenants would be unfair to the lord. By the custom of many manors, fines are due from copyholders on every change of the lord which happens by the act of God. The quantum of all these fines is not to exceed two years' value of the lands, which is recoverable by action of debt. See FINES IN COPYHOLDS.

(12) Besides a fine a heriot is due to the lord on his tenant's death, though he be only a tenant for life, provided he be a legal and not an equitable tenant. It is usually the best beast or averium; it is sometimes the best chattel, as a jewel or a piece of plate, but it must be a personal chattel. Heriots are in some manors commuted to a customary composition in money, but it must be an indisputably ancient custom. See HERIOT.

Copyholds were forfeited to the lord of the manor, and not to the Crown, unless by the express swords of an Act of Parliament, by the tenant being attainted of treason or felony; and are still so by his attempting to alienate his estate by any mode which is contrary to custom, or by committing any kind of waste, or by disclaiming the tenure, or by refusing to perform the services.

Copyholds maybe enfranchised, i.e., converted into free tenure, in several ways:'

(1) If the copyholder surrender his estate to the rightful lord, to the use of the lord.

(2) If the copyholder release all his right and interest to the lord.

(3) If the lord convey the freehold of the copyhold to a stranger, and the copyholder release to the stranger.

(4) If the lord convey to the copyholder the land for an estate of freehold, or even for a term of years.

(5) The efforts of the Legislature have been much directed to the facilitation of enfranchisement, but the (English) Copyhold Act, 1841 (4 & 5 Vict. c. 35), and its amending Acts were purely permissive, and merely facilitated the commutation and enfran-chisement by the establishment of the 'Copyhold Commissioners' as a tribunal to determine differences between lords and tenants.

The (English) Act of 1852 (15 & 16 Vict. c. 51), afterwards amended by 21 & 22 Vict. c. 94 (the Act of 1858), and more materially by the Act of 1887 (50 & 51 Vict. c. 73), provided for compulsory enfranchisement by either lord or tenant, preserving, however, under s. 48 of the Act of 1852, the lord's right of way and sporting and to minerals, an also the lord's right in case of escheat for want of heirs.

By the Act of 1887 a notice o the tenant's right to enfranchise 'upon paying the lord's compensation and the steward's fees' was directed to be given by the steward of the manor to every tenant admitted in or after 1888, rent-charges were made redeemable, limited owners of enfranchised land might charge the land with the money paid for the enfranchisement, and the 'Land Commissioners' were directed (see s. 30) to 'frame and cause to be printed and published such a scale of compensation for the enfranchisement of land as in their judgment would be fair and just and would facilitate enfranchisement,' and also a scale of allowances to valuers, and 'all such directions for the guidance of lord, tenant, and valuers, as the commissioners might deem necessary,' it being expressly provided that these scales were 'to be for guidance only.'

The (English) Copyhold Act, 1894 (57 & 58 Vict. c. 46), as amended, consolidated the above Acts without any amendment of the law, by substituting the Board of Agriculture (q.v.) for the Land Commissioners in accordance with the Board of Agriculture Act, 1889.

Under the (English) Law of Property Acts, 1922, (Amendment) 1924, 1925 and (Amendment) 1926, copyhold and customary tenures have been converted into a qualified form of freehold or leasehold, land formerly copyhold being in any event still subject to certain rights o the lord of the manor in regard to which the parties are free to make their own terms. These rights are the lord's right (if any) to mines, minerals, limestone, clay, stone and gravel pits or quarries; also rights, franchises, royalties, or privileges of the lord in respect of fairs, markets, chase, warren, fishery or other rights of shooting, fishing, hunting or fowling. But subject to the lord's rights to minerals and access thereto, the enfranchised owner may disturb or remove the soil so far as is necessary for the purpose of making roads or drains or erecting buildings or obtaining water, (English) L.P. Act, 1922, 12th Sched., s. 5.

Notwithstanding enfranchisement copyholds were, until 1935, still subject until extinguishment to the manorial incidents: (1) Quit and Chief Rents; (2) Fines, Reliefs and Heriots; (3) Customary or reasonable fines on alienation (see s. 130 (1) of the (English) Law of Properties Act, 1922 and 13th Sched. Part II. para 13. Ibid., and (English) Law of Properties Amendment acts, 1924 and 1926); (4) Forfeiture upon any ground subject to right of relief [(English) Law of Properties Act, 1922, s. 132]; (5) The lord's right to timber, all, if he had the right of entry; half, if he had no right of entry; (6) All fees payable to the steward. These manorial incidents could be extinguished by compensating the lord either by agreement with or notice to him at anytime before the 1st January, 1936. Compensation might be paid in cash within thirty days after agreement or if exceeding 20l. by agreement or by 20 annual instalments including interest at 5' per cent. secured by a charge on the enfranchised land, or by mortgage [(English) Law of Properties Act, 1922, s. 139]. In exceptional cases the compensation may be agreed with 5' per cent. interest, under Part II of the Copyhold Act, 1894 [(English) Law of Properties Act, 1922, s. 138 (3)]. No stamp is required if the agreement is made before 1st January, 1936, (English) Law of Properties Act, 1922, s. 139 (1) (vii).

After 1935 these incidents became extinguished automatically unless the Minister of Agriculture extend the time, but a right to partial compensation for loss of profits or rights accruing before 1936 is still available.

Unless and until the manorial incidents have been extinguished the legal estate will not pass upon conveyance unless the assurance has been produced to the steward of the manor within six months from the date of execution and duly endorsed by him, see (English) Law of Properties Act, 1922, ss. 129 and 130. Subject to these provisions copyholds are now held as freeholds or leaseholds. The latter include life estates which have been converted to terms for ninety years determinable by notice upon cessor of the life or lives, see (English) Law of Properties Acts, 1922, s. 133 and 1925, s. 149; and where leases for lives of years were perpetually renewable by custom the tenure in converted into a free simple, (English) Law of Properties Act, 1922, s. 135. Under s. 145 of the (English) Law of Properties Act, 1925, leases with a perpetual right of renewal by lease or grant from the copyholder have been converted into long terms of 2,000 years. All customary modes of descent were abolished in regard to deaths happening after 1925 and also all customary modes of conveyance made after the same date.

The scale of compensation payable upon extinguishment of manorial incidents is regulated by (English) Law of Properties Act, 1922, Part VI. And the 13t Sched. As amended by the (English) Law of Properties Acts, 1924 and 1926, and see also S.R. & O., 1925, No. 810, Manorial Incidents (Extinguishment) Rules. The 14h Sched. Of the (English) Law of Properties Act of 1922, sets out the scale of the steward's compensation, and solicitor's remuneration is regulated by S.R. & O., 1926, No. 1071, L. 24.

The Court Rolls and other manorial documents have been placed under the superintendence of the Master of the Rolls, but the possession and care of these documents remains in the lord of the manor [(English) Law of Properties Act, 1924, 2nd Sched.]. Consult Scriven on Copyholds, Elton on Copyholds, and Chitty's Statutes, tit. 'Copyhold.'

Copyhold, originated in base or villain tenure, under which land was held at the will of the lord of the manor, but both the common law and equity came in the sixteenth century to protect the rights of copyholders in accordance with the manorial customs under which they held, Halsbury's Laws of England, Vol. 12(1), para 642, p. 189.