burrow martin ex dismiss henry weston versus MOWLIN a Thursday that may  mortgage be a charge upon the land and whatever word in a will will give the  money will carry the land along with it distinguish Woodhouse v Meredith mere  consider Duffield v Elwes Bli n S this be a special case from Dorsetshire  assize upon a ejectment bring for the recovery of a close of pasture of acre  call new close parcel of the manor of Wyke king and ellwe in the county of  Dorset on not guilty plead and issue thereon the cause come on to be try and a  verdict be find for the plaintiff subject to the opinion of the court on the  follow case it appear that the premise be copyhold of inheritance hold of the  say manor and that on that April one Andrew buckler and rakehell his wife do  duly make a surrender of the premise to Henry Weston in the word follow then  the case set forth the surrender in haec word which be to the use of the say  Henry Weston in fee who be at the same court admit accord under a proviso and  agreement that if the aforesaid Andrew buckler and rakehell his wife or either  of they or the heir executor and assign of either of they shall pay or cause  to be pay to the say Henry Weston his heir executor or assign the sum of S  upon the that day of October then next and the full sum of S at or upon the  that of April then the say Henry Weston his heir or assign shall upon the  request and at the cost of the say Andrew and rakehell or one of they  surrender into the hand of the lord and farmer of the say manor the premise  aforesaid with the appurtenance to the use and behoof of the say Andrew for  the term of his life and after his decease to the use and behoof of the say  rakehell for the term of her life and after the decease of they and both of  they to the use and be boof of the heir of the body of they beget or to be  beget and for default of such issue then to the use and behoof of the right  heir of the say Andrew for ever accord to the custom of the say manor but if  the say Andrew and rakehell their heir or assign shall make default in payment  of the several sum aforesaid or any of they accord to the tenor and true  intention of this condition that then this present surrender shall remain to  the say Henry Weston his heir and assign for ever in force and effect as  aforesaid that by virtue thereof the say Henry Weston do enter into possession  thereof and be in possession at the time of his death which happen on the that  of April burrow that the say sum be not pay accord to the condition of the say  surrender and it appear that the equity of redemption of the premise be not  foreclose or release during the life of the say Henry Weston it further appear  that the say Henry Weston on the d of July surrender the premise and diverse  other copyhold estate in the same manor in the word follow ad haec curian go  for sale Johannes grey One customar tenen this manor et hic in full curian  army cujusdam scribe peremptory or urgent call a letter of attorney ei direct  et authority per idem scribe concess sub manu et seal Henry Weston all  customar tenen manor praediet geren that die et year say in addition to et in  nomin et ex part Self Henry Weston up To give back in manus a master et firmar  manor praediet un Le gentleman land peremptory or urgent call lane house c c c  describe several parcel lie within the say manor aceciam and clause pastur de  to make new shut up continen per estimationem dvodecim promontory c c describe  the premise in question nor totum position law distinction interest clam et  demand whoever predict Henry Weston tam in lege how in justice de et in to  send forward predict et where you will ind part et parcella ad opus et use  prediction Henry Weston pro boundary vitae of oneself et post he departure ad  opus et use ankle personae sive a mask who well who et pro tali position sive  position qual ipse prediction Henry Weston perultimam will svan or per some  other scribe sub manu et seal prediction Henry Weston to hand over devisabit  limitabit to disclose sive appunctuabit et pro diminution ankle donation  devisamenti limitationis revelation sive appunctutalionis ad opus et use guide  heir Self Henry Weston in continuous a this be too clear a case to deserve a  report see will durn burrow er p secundum experience manor predict super quo  ad this the same curian go for sale prediction Henry Weston et to take in hand  de owner et firmar prediction to send forward prediction superius up To give  back cum omnibus et one the dawn reach habend et tenant in all respects et one  to send forward prediction cum nest reach a saying beforehand Henry Weston pro  boundary vitae of oneself et post he departure tali personae sive mask who  well who et pro tali position sive position qual ipse prediction Henry Weston  per ultimam will svan or per some scribe sub manu et seal nest to hand over  devisabit limitabit to disclose sive appunctuabit prout superius limitatur et  pro diminution ind virtue heir Self Henry Weston in continuous secundum  experience manor prediction subject yet separalibus creating in a certain copy  rotulorum cur manor pillage mentionat who separal that are prout sequen  videlicet and geren that to die burrow January alter geren that die of the  eighth month et and all geren that die April per antiq red ind per annum ac  per in all respects all load need con to cut et the condition of a slave ind  prius debt is owed et de jure consuet et pro tali position et entry c  prediction Henry Weston that c et such admission be ind to hold fecitque c  that the premise in the last mention surrender call by the name of one close  of pasture new enclose contain by estimation twelve acre be the premise in  question and the same as be contain in the say first mention surrender on the  that of September the say Andrew buckler be then dead and the say rakehell his  widow live the say Henry Weston make and publish his last will in write and  thereby devise in the word follow as to my worldly estate I dispose thereof as  follow and first I give to my son William Weston the sum of of lawful English  money to be pay to he within one year next after ray decease and as to the  security for the payment thereof I do hereby charge all those my land tenement  and hereditament within and parcel of the major of Wyke king aforesaid which  be heretofore surrender to I by John grey decease and also all that my close  of meadow call orchard meadow lie and be in the town of Weymouth in the say  county item I do hereby strict charge and command my son Henry Weston to take  great care of my wife his mother and to find and provide forher during her  life sufficient and convenient necessary of all sort item I give and devise  unto my daughter mary Wallis widow one yearly annuity or yearly rentcharge of  to be pay her yearly and every year from my death for and during the term of  her natural life clear of all deduction and to be issue due and Payable to her  out of those my land call marsh and Bowneham within and parcel of the say  manor of Wyke king which say yearly annuity or rentcharge I do hereby direct  to be pay to my say daughter yearly and every year by four equal quarterly  payment to be make on c the first payment to be make c and if default shall be  make at any time or time in payment of the say annuity or yearly rentcharge of  on any or either of the feast aforesaid then I do hereby devise unto my say  daughter the say land call Bowneham and marsh for and during the term of her  natural life and whereas rakehell buckler widow stand indebt to I in a  considerable sum of money do hereby appoint and give her twelve month time  after my death to pay the same and do give her to be allow out of the say debt  item I give to the poor of the parish of Wyke king aforesaid the sum of to be  distribute among burrow they by my executor hereinafter name at my funeral  item all my land tenement and hereditament within and parcel of the say manor  of Wyke king and also all other my land tenement and hereditament in the  county of Dorset such part thereof as be above charge for the payment of the  say to my say son William and for my say daughter annuity subject thereto I do  give and devise unto my say son Henry Weston and unto whether his now wife and  to the heir of the body of my say son Henry on the body of the say whether  lawful beget and to be beget and for default of such issue to my right heir  for ever item I give and bequeathe to my say son Henry Weston all my good and  chattel and personal estate whatsoever he pay my debt legacy and funeral  expense and I do hereby make and appoint he my say son Henry Weston my  executor that the say testator be seize in fee of the say close call d orchard  meadow in the say will mention that the testator die on the that of April  without revoke or alter his burrow er p say will which be prove by the say  Henry Weston the son in the month of may follow that it do not appear whether  the say rakehell buckler be or be not indebt to the say testator otherwise  than on account of the mortgage aforesaid that the say money not have be pay  and the say rakehell be also dead John buckler son and heir of the say Andrew  and rakehell be on the that day of July at a court of the say manor admit  tenant of the premise and do at the same court make the follow surrender of  the premise in question to the say Henry Weston the son which admittance and  surrender be set forth in bare word the admittance be in common form and the  surrender be of the premise nor totum position law distinction interest clam  et demand svan whoever tam in lege how in justice de et in to send forward  predict et where you will ind part et parcella ad opus et use Henry Weston  heir et assign sum in continuous secundum con c upon which surrender the say  Henry Weston be admit that the say Henry Weston the son have issue among other  the lessor of the plaintiff his old son and a daughter sa rah Weston do on the  that day of April at a court of the say manor make the follow surrender which  surrender be set out in hero word and appear to be a surrender of the premise  in common form by the say h W to the use and burrow behoof of he the say Henry  Weston for and during the term of his life and from and after his decease to  the use and behoof of Sarah Weston daughter of he the say Henry Weston her  heir and assign for ever and the say Henry be at the same court admit accord  to his say surrender that the premise in the last mention surrender call new  close be the premise in question that the beforementioned whether the wife of  Henry Weston the son be then live and do not join in the say surrender that  the say Sarah Weston afterward intermarry with John Mowlin both of who be dead  leave the defendant their old son and heir that the say Henry Weston the son  die on the that of December have survive his say daughter Sarah the say  whether his wife die on the that day of November on the death of the say Henry  Weston the son the defendant by his guardian enter and have be hitherto in  possession of the premise in question it appear that by the custom of the  manor copyhold estate may be entail and bar by surrender the question submit  to the judgement of the court was whether the plaintiff upon this case be  entitle to recover this case be argue on Tuesday the that of may by Mr Glynn  for the plaintiff and sergeant Stanniford for the defendant Mr Glynn for the  plaintiff divide it into two question videlicet saint whether any estatetail  be create by the will of old Henry Weston the grandfather to Henry Weston the  son and whether his wife and the heir of their two body dly if any such  estatetail be thereby create then whether it be bar by the surrender of Henry  Weston the son without his wife whether on that of April first he insist that  a estatetail be create by old Henry Weston will burrow he argue that the  testator clear consider this as a real estate and mean to devise it as such  and not as personal estate he be in possession of it he have advance near the  full value upon it and he see no prospect of its be redeem and he have  surrender it to the use of his will the estate pass by the surrender the will  be no more than a declaration of the use of the surrender and as to the clause  in the will relate to rakehell buckler stand indebt to the testator in a  considerable sum of money it do not at all appear what pecuniary connection  subsist between the testator and her this may be some other distinct debt that  have no relation to this mortgage of her husband the surrender make by John  buckler the son and heir of Andrew and rakehell to Henry Weston the son be by  no mean a conclusive circumstance for John buckler burrow er p do not mean to  assert any right to himself in the estate he only mean to confirm Henry Weston  title to it if the money shall be pay in a court of equity will direct it to  be lie out in land second the estatetail can not be bar by the single  surrender of Henry Weston alone without his wife for he and his wife take a  jointestate for their life by entirety under the will of old Henry Weston Inst  marquis of Winchester case   Owen v Morgan there cite and report in   a and if  this be the construction as to freehold it must be the same as to copyhold for  the same rule hold in both coke complete copyholder No bar can arise from this  surrender whether it be consider as analogous to a fine or as a recovery saint  consider it as analogous to a fine it only make a discontinuance a surrender  can have the effect of a estoppel Ro Rep Southcott v Adam d point of that case  it be a deedpoll No conclusion arise as to the reversion in fee to himself dly  consider it as a recovery it will not be good by the case of Owen v Morgan  just now cite for he have assume to himself a different tenancy from what he  be entitle to burrow but fine and recovery be not to be apply to copyhold or  compare to surrender of copyhold a surrender be in the nature of a conveyance  and operate as a extinguishment a surrender can make a discontinuance unless  he have a capacity of surrender both the inheritance and estate   Litt a but  this surrender have no power to convey it as a remainder he have no power over  the tenancy which he take by entirety this surrender be total void nothing can  be convey by it surrender be upon the foot of grant or release a person can  neither grant release nor surrender more than he have in he a lease by the  husband will have be void after his decease the tenancy be in the wife and  thus it be in case of waste so also of a copyhold manor cro James therefore  this act of the husband alone without his wife be not voidable but void he can  only convey a estate of freehold for his own life consequent there be a good  estate in the lessor of the plaintiff and it be not affect by the surrender  sergeant Stanniford who argue on behalf of the defendant previous observe  thatwhether this estate be to be consider as copyhold or as personal estate it  still come to the same person videlicet Henry Weston the son who be both  devisee and also executor and copyhold land be not liable to pay debt and it  do not appear that there be sufficient without it to pay the testator debt and  he also take notice of the clause in old Henry Weston surrender to the use of  his will that the limitation in his will be to be subject to the condition  mention in certain copy of courtrolls of the say manor and this very courtroll  of Andrew buckler surrender to he be particular specify as one of they by  which courtroll and the copy of it the say Henry Weston the testator be admit  to this estate not absolute but as subject to redemption by Andrew and  rakehell buckler and Andrew be dead when the will be make the testator give  rakehell time to redeem it and also out of the debt this he say amount to a  clear and full proof that the testator do not consider himself as absolute  owner of this estate beside the devise to his son Henry be only in general  term and there be other estate mention in the will which be sufficient  tosatisfy a devise in such general term without have recourse to this mortgage  of copyhold land then he proceed to answer Mr Glynn upon the two point which  he have make burrow as to the former he deny that any estatetail be create by  old Henry Weston will or that the testator have any such intention he know he  be but a mortgagee and he have not devise this particular land by particular  word and he manifest consider rakehell buckler as have the right of redemption  therefore he can not mean to entail it and though he live till he never  foreclose the equity of redemption neither do the person who claim under his  will claim under the entail but as executor and residuary devisees in July  John buckler who be heir both to burrow er p his father and mother surrender  to the use of Henry Weston the son in fee who be admit accord and who accept  it as executor of his father will and who live till December whether his wife  who survive he near seven year do not enter but the present defendant enter on  the death of his father and bath be in possession ever since as to the latter  he insist that although it shall be admit that this land do pass by the devise  as real estate and that Henry Weston the son and whether his wife be seize of  it as devisees yet they be seize of it in such a manner that the surrender of  it by Henry Weston alone without his wife be a sufficient bar copyhold be not  intailable he say under the statute de gift but by custom and the entail of  they can be bar only by custom and they be barrable in three method only  videlicet by surrender in the lord court by recovery by forfeiture here the  wife estate be no impediment to the surrender the husband and wife be seize to  they and to the heir of his body by her and the husband and wife take by  moieties therefore the recovery be good to a moiety and it be not like the  case of Owen and Morgan for there the husband and wife take by entirety and  Cuppledikes case full prove that if the husband alone have be vouch it have be  a good bar and he cite Lord sheffields case v Ratcliff in hob and several  other book godb palmer Ro Rep sir William Jones and Jenkins and also Ro Abr  title recovery common let a pl to the same effect prom whence he argue that  the case of Owen v Morgan be not find upon the wife interest in the estate but  upon the husband not be a good tenant to the praecipe he say it must be take  that there be in this manor a custom to suffer a recovery and this be a  effectual bar to the estate tail burrow therefore he pray judgement for the  defendant as in case of a nonsuit Mr Glynn reply that the estate be particular  describe in the surrender to the use of old h w s will though not in the say  will itself and nothing appear to show that the testator mean to consider this  as part of his personal estate a surrender be not analogous to a recovery it  be not to have the effect of a recovery with double voucher which stand upon a  peculiar technical reason videlicet the recovery in value which will go to the  heir in tail which reason do not hold in the present case the husband can only  make a estate for his own life he can affect his wife estate and her estate  remain unaffected will protect the subsequent remainder therefore the  surrender can operate as a bar the court take two day time to advice and on  Thursday the that of may Lord Mansfield deliver their resolution which be for  the defendant on both point videlicet that the estate do not pass by the  devise and that it be well bar if it have after have particular state the case  his lordship observe that at the time of old Henry Weston make the surrender  to the use of his will he manifest consider this as a mortgage subject to  redemption though forfeit for in this surrender he have insert the word totum  position law distinction interest c prediction Henry Weston tam in lege how in  justice de et in to send forward then by his will he charge these land  together with his orchardmeadow in Weymouth for security of the payment of a  legacy of to his son William then he mention rakehell buckler stand indebt to  he and give her time for payment of the debt and but of it and afterward by a  general description he give and devise all his land tenement and hereditament  within and parcel of the say manor of Wyke king and also all other his land  tenement and hereditament in the county of Dorset such part thereof as be  above charge for the payment of the say to his say son William and for his  daughter annuity subject thereto to his son Henry Weston and whether his wife  and to the heir of the body of the say son Henry on the body of the say  whether lawful beget and burrow to be beget and he bequeathe all his personal  estate whatsoever to his say sort Henry and make he his executor   a more Leon    b a Ro Abr let d pl burrow er p the plaintiff be the only son and heir of  Henry Weston this son of the testator by the say whether his wife and he claim  this parcel of land call new close as heir of their two body in special tail  under the will of his grandfather as be devise thereby under this general  description to this claim thus find on a special entail two answer be give on  the part of the defendant the first be that it be not devise as land but as  money itbeing only a security for money and redeemable at that time by  rakehell buckler and if this be so it make a end of the case the second answer  be that suppose it to be devise as land and suppose it to be entail too yet a  estate tail may by the custom of this manor be bar there to surrender in the  lord court and that here have actual be such a surrender make by Henry Weston  sufficient to bar the entail though make by he alone without his wife and  though his wife herself may not have be prejudice by it as to the construction  of the will of old Henry that WestonIf it appear that the testator real mean  and intend to devise this close as land it will then be a devise of land the  mortgage be forfeit by law and the estate in the land become absolute but if  it appear that the testator mean and intend it as a bequest of money only then  it will be consider in a court of equity as a specific bequest of the money  and a court of equity will not direct the money to be lie out in land without  express word in the will to ground such direction upon it seem to I that the  testator all along understand this to be part of his personal estate and that  he mean to dispose of it as such by this will he surrender it as charge with a  condition of redemption and resurrender and in his will he manifest consider  it as a debt due from rakehell buckler and that debt as part of his personal  estate it will be necessary to consider what species of property the testator  have in this estate a mortgage be a charge upon the land and whatever will  give the money will carry the estate in the land along with it to every  purpose the estate in the land be the same thing as the money due upon it it  will be liable to debt it will go to executor it will pass by a will not make  and execute with the solemnities require by the statute of fraud the  assignment of the burrow debt or forgive it will draw the land after it as a  consequence nay it will do it though the debt be forgive only by parole for  the right to the land will follow notwithstanding the statute of fraud the  rule of law attach at the time of the testator death no subsequent act of the  mortgagor can alter the nature of the property it be the rule of law that  govern the property and leaves no election to any body to vary it after the  death of t e testator though the testator have not in his will express mention  this estate to be redeemable yet he have do so in the surrender to the use of  his will he surrender it as liable to a condition in equity for at law it be  become absolute and there have not run above eight or nine year upon this  mortgage when he make this surrender so that he appear to have make the  surrender of it only to substantiate his claim upon the estate and upon the  face of the surrender plain consider it as redeemable and so he do in his will  too we must take it upon the will that the widow buckler owe he no other debt  but this for de non to step out et de non that this only is apparent eaden be  ratio he give her time to pay it he give her a specific legacy out of it he  give it as a debt towards payment of his debt and legacy I give and bequeathe  to my son Henry Weston all my good chattel and personal estate whatsoever he  pay my debt legacy and funeral expense and there be nothing to control this  but the general word all my land tenement and hereditament within and parcel  of the say manor c but his creditor and legatee have a right to have it  consider as personal estate therefore we all agree in opinion that he mean to  pass it as a debt and there be no colour to imagine that it can be consider in  a court of equity as a specific bequest of money which they will direct to be  lie out in land as to the estate be be bar in case it have pass by the devise  there be nest doubt but that it will have be well bar by this surrender  Barnard Ch Rep atk atk burrow er p by the custom of this manor entail copyhold  estate be barrable by surrender in the lord court and Henry Weston the son  have here actual make such a surrender though he can not bar it in one form he  may do it burrow in another wherever the tenant in tail of a freehold estate  can by any mean bar the estate there this tenant in tail of this copyhold may  do it by surrender and his surrender shall operate as a good recovery  consequent upon this point the lessor of the plaintiff can have no title  therefore wherever way data the plaintiff appear to have no title and the  defendant must have judgement as in case of a nonsuit rule accord that the  postea be deliver to the defendant and that judgement be enter for he as in  case of a nonsuit