c. 27, s. 30. Will. 4, c. 27, s. 30, was in accordance with a suggestion of Blackstone 3 & 4 Will. 4, (3 Steph. Com. 565, where the old law is stated; see Robinson v. Bristol, 20 L. J. C. P. 208). The limitations prescribed by 3 & 4 Will. 4, c. 27, were expressly applied Bishops' to a bishop's rights to collate or bestow any ecclesiastical benefice by 6 & 7 rights. Vict. c. 54, s. 3. 6 & 7 Vict. c. 54, s. 3. Lapse. be reckoned bencies after 31. Provided always, and be it further enacted, that when Incumbencies on the avoidance, after a clerk shall have obtained possession after lapse to of an ecclesiastical benefice adversely to the right of presenta- within the tion or gift of the patron thereof, a clerk shall be presented or period, but collated thereto by his Majesty, or the ordinary, by reason of not incuma lapse, such last-mentioned clerk shall be deemed to have ob- promotions to tained possession adversely to the right of presentation or gift bishoprics. of such patron as aforesaid; but when a clerk shall have been presented by his Majesty upon the avoidance of a benefice, in consequence of the incumbent thereof having been made a bishop, the incumbency of such clerk shall, for the purposes of this act, be deemed a continuation of the incumbency of the clerk so made bishop (y). (y) Presentation must be made by a common person within six calendar Lapse. months after the death of the last incumbent, otherwise the right accrues to the ordinary, which is called a lapse (3 Leon. 46; 2 Inst. 273; Wats. Cl. L. c. 12). The six months commence from the time the patron has notice of the avoidance (2 Burn, Eccl. Law, 327); but if the clerk of a stranger be instituted and inducted, and the patron gives no disturbance within six months, he has no remedy for that turn, because induction is an act of which he is bound to take notice (Ib. 329). If the avoidance be by resignation or deprivation, the six months do not commence till notice of the avoidance given by the ordinary to the patron (Com. Dig. Esglise, (H. 9)). But where the incumbent is himself patron, a sentence of deprivation is not necessary to render the first living void, the object of such a sentence being to give notice to the patron (Apperley v. Hereford, 9 Bing. 681). If the bishop should not present within six months after the lapse to him, then the right to present goes to the archbishop (Com. Dig. Esglise (H. 11)); and if neither the bishop nor archbishop present, then to the Crown, which is not confined to any time (Cro. Car. 335; Plowd. 498). It is clear that, as against the bishop at least, the patron may at any time present, notwithstanding six months have elapsed, provided advantage has not been taken of the lapse (3 Moore & Scott, 114). So that if after a lapse and before the bishop or archbishop has collated his clerk, the patron presents one, the latter shall be instituted (Hutt. 24; Hob. 152, 154; 2 Inst. 273). So after a lapse to the king, if the patron's clerk be presented, instituted, and inducted, and die incumbent, before the king has taken advantage of the lapse, his right is gone (Owen, 2—5; Cro. Eliz. 44, 119; 7 Rep. 28). When an incumbent is made a bishop, the right of presentation to Prerogative livings held by him vests for that turn in the king, and is called a prero- presentation. gative presentation. This right of the Crown was formerly doubted (Wentworth v. Wright, Owen, 144), but has since been fully established and acted on, but the right must be exercised in the lifetime of the person promoted, otherwise the turn of the Crown is lost (2 Bl. Rep. 770; R. v. London, 1 Show. 464; S. P., Show. P. C. 185; Com. Dig. Esglise (H. 6); Armagh v. A. G., 2 Br. P. C. 514). If after a grant of the next presen tation to a living the incumbent be made a bishop, by which the living becomes vacant, and the king is entitled to present, the grantee may present on the next vacancy occasioned by the death or resignation of the king's presentee (Calland v. Troward, 2 H. Bl. 324; 8 Br. P. C. 71). The right of the Crown to present to an English benefice upon the appointment of the incumbent to a bishopric, is not barred by the Crown having before such appointment granted the advowson to a subject. But no such right exists in the case of an appointment to the bishopric of Christ's Church, in New Zealand (R. v. Eton College, 8 Ell. & Bl. 610). The right of presentation given to the universities by the statutes 3 Jac. 1, c. 5, ss. 18, 19, 20; 1 Will. & M. c. 26, s. 2, and 13 Anne, c. 13, s. 1, arises only in the case of a sole patron, or all of several patrons professing the Roman Catholic religion. Where two are jointly seised of an advowson, the one being a Roman Catholic, the other a Protestant, the sole right is in the latter (Edwards v. Exeter, 5 Bing. N. S. 652; see Cottington v. Fletcher, 2 Àtk. 155). By statute 13 Anne, c. 13, the presentation to any benefice by any Roman Catholic is void (See Boyer v. Norwich, 1892, P. 41). And by stat. 11 Geo. 2, c. 17, s. 5, every grant made of any advowson or right of presentation, collation, nomination or donation, by any person professing the Catholic religion, or by any mortgagee or trustee of such person, is void, unless it be for valuable consideration to a Protestant purchaser (See 9 & 10 Vict. c. 59). An advowson donative being in the patron's disposal by his own deed of donation, without presentation, institution or induction (Co. Litt. 344 a), is not subject to lapse (Ib.; Fairchild v. Gayre, Cro. Jac. 63; Britton v. Wade, Ib. 515), unless such be the terms of the foundation, or unless the donative be augmented by Queen Anne's bounty, in which case it is subject to lapse, by statute 1 Geo. 1, st. 2, c. 10, ss. 6, 14, in case there be no nomination within six months (See Mutter v. Chauvel, 1 Mer. 475). As to proof of augmentation, see 11 East, 478. The ordinary may, by ecclesiastical censures, compel the patron of a donative to fill the church (3 Salk. 140; R. v. Chester, 1 T. R. 396). By stat. 21 Hen. 8, c. 13, if a person having a benefice with cure of souls, of the yearly value of 81. or above, was instituted and inducted into any other benefice with cure of souls, the first benefice became void (See, on the construction of this statute, Boteler v. Allington, 3 Atk. 453; Botham v. Gregg, 4 Moore & S. 230; Halton v. Cove, 1 B. & Ad. 530). The stat. 1 & 2 Vict. c. 106, ss. 1-13, has repealed the stat. 21 Hen. 8, c. 13, and made new provisions as to pluralities, which provisions apply generally to all persons and benefices without distinction of value. By the 11th section of 1 & 2 Vict. c. 106, institution into a second benefice ipso facto avoids the first. See Storie v. Winchester, 9 C. B. 62; Ex p. Bartlett, 12 Q. B. 488, as to avoidance by non-residence under ss. 54, 58 of the same statute, when the clerk is in prison. When person Estates subsequent to Estates Tail in Advowsons. 32. In the construction of this act every person claiming a right to present to or bestow any ecclesiastical benefice, as remainder, &c. patron thereof, by virtue of any estate, interest or right which after an estate the owner of an estate tail in the advowson might have barred, tail, shall be shall be deemed to be a person claiming through the person entitled to such estate tail, and the right to bring any quare impedit, action or suit, shall be limited accordingly. barred. Extreme Period of Limitation One Hundred Years. 3 & 4 Will. 4, c. 27, s. 33. 100 years. 33. Provided always, and be it further enacted, that no No advowson person shall bring any quare impedit or other action, or any to be recosuit to enforce a right to present to or bestow any ecclesiastical vered after benefice, as the patron thereof, after the expiration of one hundred years from the time at which a clerk shall have obtained possession of such benefice adversely to the right of presentation or gift of such person, or of some person through whom he claims, or of some person entitled to some preceding estate or interest, or undivided share, or alternate right of presentation or gift, held or derived under the same title, unless a clerk shall subsequently have obtained possession of such benefice on the presentation or gift of the person so claiming, or of some person through whom he claims, or of some other person entitled in respect of an estate, share or right held or derived under the same title (≈). (z) It will be observed that there is no saving of the rights of persons under disabilities. It will still be necessary to require abstracts of titles to advowsons to be carried back for a century at least (1 Dart, V. & P. 334, 6th ed.) An abstract of title to an advowson should be accompanied with evidence that the presentations have from time to time been made by the persons appearing to be the owners of the advowson. Sir W. Blackstone observes, that instances are not wanting, wherein two successive incumbents have continued for upwards of 100 years; and states as an instance, that two successive incumbents of the rectory of Chelsfield-cumFarnborough, in Kent, continued 101 years; of whom the former was admitted in 1650, the latter in 1700, and died in 1751 (3 Chit. Bl. Comm. 250; Co. Litt. 115 a). 9. Final Extinction of Right. 34. At the determination of the period limited by this act to At the end of any person for making an entry or distress, or bringing any limitation the the period of writ of quare impedit or other action or suit, the right and title right of the of such person to the land, rent or advowson, for the recovery party out of whereof such entry, distress, action or suit respectively might posextin possession to have been made or brought within such period, shall be extin- guished. guished (a). (a) This section of the act is new in principle, as the former Statutes of Effect of this Limitation were held not to bar the right but merely the remedy; but this section. bars the right as well as the remedy (See 1 Wms. Saund. 283 a, n. ; 2 B. & Ad. 413; 1 B. & Ald. 93; 1 Ld. Raym. 422; Incorporated Society v. Richards, 1 Dru. & War. 289; Re Alison, Johnson v. Mounsey, 11 Ch. Div. 296). The effect of the act is to make a parliamentary conveyance of the land to the person in possession after the statutory period has elapsed (Per Parke, B., Doe v. Sumner, 14 M. & W. 42). Thus the legal estate outstanding in a mortgagee was extinguished by this section (Sands to Thompson, 22 Ch. D. 614); and the legal estate in trustees being extinguished, the trusts were also extinguished (Bolling v. Hobday, 31 W. R. 9). The operation of the section in extinguishing the right to rent-charges was doubted in Hanks v. Palling (6 E. & B. 659); but there is no sufficient 3 & 4 Will. 4, c. 27, s. 34. Extinguished title cannot be revived. Nature of the interest of the person in possession. Person in possession has a devisable interest. Possession by succession of independent trespassers. foundation for the doubt (Sugd. R. P. S. 9). It is doubtful whether either heriot service or heriot custom are within the section (Zouche v. Dalbiac, L. R. 10 Ex. 172). When a title has been extinguished by the statute, the old title cannot be restored by a subsequent acknowledgment (Sanders v. Sanders, 19 Ch. Div. 379, where Stansfield v. Hobson, 3 D. M. & G. 620, to the contrary effect was disapproved; see also Re Alison, Johnson v. Mounsey, 11 Ch. Div. 296; Markwick v. Hardingham, 15 Ch. Div. 346; Lyell v. Kennedy, 18 Q. B. Div. 796); or by subsequent re-entry (Bryan v. Cowdal, 21 W. R. 693; Brassington v. Llewellyn, 27 L. J. Ex. 297). The law before this statute was different (Pendleton v. Rooth, 1 D. F. & J. 81). In a case which was held to fall within 3 & 4 Will. 4, c. 27, s. 8, after the expiration of twenty years, during which no rent had been paid, the tenant, within five years before action, paid some arrears. It was held that under sect. 8 time ran from the last payment of rent, and that sect. 34 had not extinguished the title of the plaintiff who was the reversioner (Bunting v. Sargent, 13 Ch. D. 330; see, however, Sanders v. Sanders, 19 Ch. Div. 379, and other cases above cited). It has been suggested that the title gained by a wrongdoer who has been in possession, which may be limited by rights yet remaining unextinguished, is commensurate with the interest which the rightful owners have lost by the operation of the statute, and must therefore have the same legal character, and be freehold, leasehold, or copyhold accordingly (Darb. & Bos. Stat. Lim. 390). Mr. Hayes' view is as follows: The wrongdoer must be considered according to the principle of the old law as claiming generally, and therefore as claiming the absolute property (unless indeed he expressly qualify his claim), and the statute as merely diminishing from time to time the danger of eviction, till at length his originally precarious fee becomes, by the exclusion of every stronger claim, a firm inheritance" (1 Hayes, Conv. 270, 5th ed.) The latter view seems to be taken (Dart, V. & P. 464, 6th ed.) See further an article, 11 Jur. N. S. 151 (Part 2). A person in possession of land without other title has, even before time has run in his favour under this statute, a devisable interest (Asher v. Whitlock, L. R. 1 Q. B. 1; Keeffe v. Kirby, 6 Ir. C. L. R. 591; Clarke v. Clarke, I. R. 2 C. L. 395; see under the old law, Doe v. Birchmore, 9 Ad. & Ell. 662). Before this statute twenty years' possession gave a prima facie title against every one, and a complete title against a wrongdoer who could not show any right, even if such wrongdoer had been in possession many years, provided they were less than twenty (Doe v. Cooke, 7 Bing 346; see ante, p. 117). The court thought that the effect of this section would be to give the right to the possessor for twenty years even against the party in whom the legal estate formerly was, and, but for the act would still be, where he had not obtained the possession till after the twenty years; but that such twenty years' possession must be either by the same person or by several persons claiming one from the other by descent, will or conveyance (Doe v. Barnard, 13 Q. B. 945, 952). As to possession by a series of independent trespassers, see Doe v. Martin (1 Car. & M. 32); Doe v. Dyball (3 C. & P. 610). In Dixon v. Gayfere (17 Beav. 421), the Master of the Rolls put the case of a series of trespassers, each adverse to one another and to the rightful owner, taking and keeping possession of an estate in succession for various periods, each less than twenty years, but exceeding in the whole twenty years: and he said: "At law, no doubt, the person possessed of the legal estate would obtain possession, or if the legal estate could not be shown to be in anyone, the last possessor, that is, the person actually in possession, would hold the property; but not by reason of the validity of his own title, but by reason of the infirmity of the title of the claimants" (17 Beav. 430). This opinion as to the legal rights of the parties was doubted by Cockburn, C. J. (Asher v. Whitlock, L. R. 1 Q. B. 4). In such a case the true view seems to be that the first trespasser has, at the end of the statutory period reckoned from his entry, a right to the possession and 3 & 4 Will. 4, may maintain ejectment against a subsequent trespasser by whom he c. 27, s. 34. has been expelled (Dart, V. & P. 466, 6th ed.; Darb. & Bos. Stat. Lim. 392; see Trustees' Co. v. Short, 13 App. Cas. 793). Where land which had been in the possession of a trespasser for nineteen and a half years was taken by a railway company, and the purchasemoney paid into court, and no claim either to the land or the money was made by the true owner until after twenty years, the trespasser was entitled to the money as against the true owner (Ex p. Winder, 6 Ch. D. 696). The court will compel a purchaser to take a title depending upon parol Purchaser evidence of adverse possession under this statute (Scott v. Nixon, 3 Dru. compelled to & War. 388). In the subsequent case of Tuthill v. Rogers (6 Ir. Eq. R. accept title 441), Sugden, L. C., observed, that the above decision had been acquiesced depending on in, and in conformity with it he should be compelled in principle to adopt the statute. the same construction against the rights of the Crown, if the case came within the provisions of the act 48 Geo. 3, c. 47, by which the right of the Crown is barred, and the estate actually transferred and vested in the person who has held adverse possession for sixty years (See Lethbridge v. Kirkman, 25 L. J. Q. B. 84; Moulton v. Edmonds, 1 D. F. & J. 250). Where a Statute of Limitations extinguishes the right and does not Pleading. merely bar the remedy, the defence under such statute may be raised by the defendant, although not in terms pleaded (Dawkins v. Penrhyn, 6 Ch. Div. 322; 4 App. Cas. 59). See as to old common law rule De Beauvoir v. Owen (5 Exch. 166); Owen v. De Beauvoir (16 M. & W. 547). Receipt of Rent. 35. The receipt of the rent payable by any tenant from year Receipt of to year, or other lessee, shall as against such lessee or any per- rent to be deemed son claiming under him (but subject to the lease), be deemed receipt of to be the receipt of the profits of the land for the purposes of profits. this act. 10. Abolition of Real and Mixed Actions, &c. abolished 1834. 36. No writ of right patent, writ of right quia dominus re- Real and misit curiam, writ of right in capite, writ of right in London, mixed actions writ of right close, writ of right de rationabili parte, writ of after the 31st right of advowson, writ of right upon disclaimer, writ de ra- December, tionalibus divisis, writ of right of ward, writ de consuetudinibus, et servitiis, writ of cessavit, writ of escheat, writ of quo jure, writ of secta ad molendinum, writ de essendo quietum de theolonia, writ of ne injuste vexes, writ of mesne, writ of quod permittat, writ of formedon in descender, in remainder, or in reverter, writ of assize, of novel disseisin, nuisance, darrein presentment, juris utrum, or mort d'ancestor, writ of entry sur disseisin, in the quibus, in the per, in the per and cui, or in the post, writ of entry sur intrusion, writ of entry sur alienation, dum fuit non compos mentis, dum fuit infra ætatem, dum fuit in prisona, ad communem legem, in casu proviso, in consimili casu, cui in vita, sur cui in vita, cui ante divortium, or sur cui |