COPYHOLDS.

that the right of the former was purely legal, and WIFE'S that his remedy was his entry or seisure for the forfeiture. But that decision has been over-ruled Forfeiture by Lord Eldon, who in a modern case (a) injoined of; and relief in equity. a copyhold tenant, at the suit of the lord, from committing waste. The equitable jurisdiction may probably be thus considered, viz. that when complete satisfaction can be made, and the forfeiture is not Where there are equitable wilful (b), relief will be given to the tenant. This circumhas accordingly been done in instances where the stances, waste was committed by the tenant under a misconception of his power or right, or by a stranger without his permission (c); so also where there was a reasonable excuse for the non-performance of an indifferent ceremony, as when the tenant, from religious scruples, declined to take the oath of fealty to his lord (d).

such as misconception

take or mis

of tenant of his right;

or where the broken is

condition

considered

as a mere se

Another equitable ground for relief in these cases is, where the condition annexed to the estate or tenure is such as to be considered merely a security for the performance of an act by the tenant; curity for the for there the Court can relieve in the instance of a performance non-performance, because it may be done in sub- tenant's act: stance, although it has been neglected to be performed at the time and place appointed; and the lord will have no reason to complain, since he will receive all that he can conscientiously demand..

Accordingly, if a forfeiture had been incurred as for rents, at law for non-payment of rent, or of a fine, a Court of Equity might relieve the tenant, as com- or fines. plete compensation might be made to the lord, and

(a) Richards v. Noble, 3 Meriv. 673. (b) 6 Vin. Abr. 114, 152. 1 Eq. Ca. Abr. 121. (c) Toth. 108-237; and Nash v. the Countess of Derby, 2 Vern. 537, explained Pre. Ch. 574. (d) Pre. Ch. 574. 2 Vern. 661.

WIFE'S

COPYHOLds.

Forfeiture
of; and relief
in equity.

In two in

ried women

against for

feiture for
non-admit-
tance and

non-payment
of fines, by
9th Geo. 1.

the forfeiture may be considered to be intended as a security merely for such payments (a).

In conclusion must be noticed a cause of forfeiture, from which a married woman was not in any case exempted, previously to the statute after stances mar- mentioned, viz. when she neglected to be admitted are secured tenant, for which cause the lord might by special custom have entered for a forfeiture (b), or without such a custom he might have seised the lands quousque the wife came in to be admitted. But by a statute passed in the reign of George the first (c), it is declared that married women intitled by descent or surrender to the use of a will, who have not been admitted, may be admitted tenants of their copyhold estates, either personally or by their guardians or attorneys; and in case of neglect, that the lords of whom the lands are holden may appoint guardians or attorneys for the purpose, and impose and levy the usual fines, by receiving the rents, &c.; and that the neglect or refusal of the women to be admitted or to pay such fines, should not be any forfeiture.

Not when they claim

It

appears that the above act applies to two cases by deed, &c. only, viz. where the wife is intitled by descent, or upon a surrender to the use of a will; and it has been determined, in a case where she claimed under a deed (d), that such was not a case protected by the statute; so that the lord may, in the instances not mentioned in the act, seize the wife's estate, until she claim admittance, or enter for a forfeiture, if the custom authorise it, and not otherwise (e).

(a) Pre. Ch. 572. 1 Stra. 453. (b) Gilb. Ten. 231. Geo. 1, c. 29. (d) Kensington v. Mansell, 13 Ves. 240.

(c) 9

(e) The

Earl of Salisbury's case, 1 Lev. 63. Doe d. Tarrant v. Hellier, 3 Term Rep. 170.

89

CHAPTER III.

THE subjects treated upon in this chapter are

I. Leases at common law of the wife's estate granted
by her husband and herself jointly, or by him
singly.

II. Leases granted by them under Stat. 32 Hen.
VIII. chap. 28; and

III. Leases granted by husband and wife under

powers in private conveyances.

mon law.

I. Having considered the power of the husband Leases. over his wife's estates of inheritance by disconOf wife's tinuance, and the remedies which the common law estate at comand the statute of Henry the eighth gave to the wife, her issue, and the persons in remainder, as also the husband's power to forfeit her copyhold or customary estates, the next subject which presents itself, is the husband's authority to grant leases for years of his wife's estate. Upon reference to that act, it appears, that although it altered the common law in favour of married women, and the persons intitled to her real property, by facilitating their remedies against discontinuances made by husbands; yet that it provided for the encouragement of husbandry by insuring to the lessees of the husband and wife, the lands of the wife during the terms granted; and in doing so the statute rendered firm and obligatory the contracts jointly made by husband and wife during the marriage, against them and their issue;

LEASES.

Of wife's

mon law.

for by the common law leases or demises made by husband and wife by deed of her estate, were deterestate at com- minable by her after her husband's death. If such leases were granted for the lives of the lessees, they were voidable by action, since such grants were discontinuances, as before mentioned (a); and if such grants were for years, or for the wife's life, they were determinable by entry or by action; both kinds of leases being voidable at the election of the wife (b). It is necessary, therefore, to consider the common law upon this subject, since it is at present applicable to leases not within the above statute: but as the wife's remedy for her husband's discontinuance of her estate, by a grant for the life of the lessee, has been before considered, what further remains to be inquired into relates merely to leases granted for years or for her life of her estate.

Election.

Confirma

Having just noticed the wife's right of election, it is to be observed, that the period for the exercise of that power is after her husband's death; and that ceptance of acceptance of rent by her, or by a second husband, if the right of election be not before exercised, will be a confirmation of the leases (c).

tion by ac

rent.

Wife's right

of election

rible:

But this power of election in the wife is incapable not transfer- of delegation or transfer, except by the operation of law, as in the instance of a second marriage, before therefore mentioned; so that a joint lease by husband and joint leases by her and wife, by deed, will be confirmed by their joining in will be con- a fine to a stranger, because the wife cannot exercise firmed by her right of election after the fine, and it could not, their joining in a fine to a as a chose in action, pass to the conusee; of necessity, stranger.

her husband

(a) Supra, p. 63. (6) Bro. Accept. 6, 10. Resceit, 70. Keilw. 10. Bro. "Barre," 27. 1 Roll. Abr. 349. Cro. Jac. 563. (c) Doe v. Weller, 7 Term Rep. 478.

therefore, the lease is valid during the wife's life. LEASES. Such seems to have been the opinion of the Court, Of wife's in Cadee v. Oliver, although the point was not finally estate at comdecided (a).

mon law.

Similiter by husband's

her fine after

death.

firm leases can only be by the persons who

avoid or con

after her

death claim

Upon the same principle, a fine by the wife, after her husband's death, would produce the like effect, if levied before her election had been exercised. It is to be observed, that persons only claiming Election to the lands demised after the wife's death in privity to her, and not by a title paramount, have the like privilege with her of election. To illustrate thisA, a single woman, and B, being joint tenants for their lives, A married C, and then A and C, by in- the estate in denture, demised the moiety of A to D for twenty- privity to her. one years; A died, and then B, the surviving joint tenant, entered. The question was, whether B could avoid the lease, as A might have done if she had survived her husband, C: and it was decided in the negative, because B did not claim under A, but by a title paramount; since, therefore, there was no person who had such privity to A as to avoid the lease, it was necessarily good during the life of B, if the term did not sooner expire (b).

Joint leases

wife.

In regard to copyhold estates, and to leases granted Copyholds. by husband and wife, it is decided, that a lease by of them both of them of the wife's copyhold for a term of voidable by years, not warranted by the custom, is voidable by Forfeiture to her after her husband's death, and her entry upon the forfeiture to the lord is purged. So also, if the husband and wife demise lands holden of the wife's manor, and he dies, the custom of demising them by copy will not, as is usual, be destroyed; because the

(a) 3 Leon. 153, 154. Cro. Eliz. 152. (6) Smallman v. Agborow, Cro. Jac. 417.

lord purged by wife's entry.

Joint demises of

copyholds wife's manor

holden of

will not destroy the

custom.