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apparent. The corn rent has made the old rent approach in some degree nearer to its present value (a); otherwise, it should seem, the principal advantage of a corn rent, is to secure the lessor from the effect of a sudden scarcity of corn.—The leases of beneficial clergymen were farther restrained, in case of their non-residence, by Stat. 13 Eliz. c. 20. 14 Eliz. c. 11. 18 Eliz. c. 11. and 43 Eliz. c. 9. But by 43 G 3. c. 84. /. 10. the 13 Eliz. c. 20. is repealed, together with every explanation, &c. thereof made by the 14 Eliz. c 11. 18 Eliz. c. 11, and 43 Eliz. c. 9. and the penalties for non-residence are altered altogether. As far as the 43 G. 3. respects the present subject, it may be observed that by sect. 34. all contracts or agreements made after the passing of the Act, for the letting of houses of residence, or the buildings, gardens, orchards, and appurtenances necessary for the convenient occupation of the same, belonging to any benefice, donation, perpetual curacy, or parochial chapelry, to which houses of residence any spiritual persons shall be, by the order of the archbishop or bishop, required to proceed and reside therein, (a copy of such order being, immediately on the issuing thereof, transmitted to one of the churchwardens, who shall forthwith serve it on the occupier of such house of residence, or left at the same) shall be null and void-, and any person continuing to hold such house or any such building, &c. or premises, after the day on which such spiritual person shall by the said order be directed to reside therein, and after service of such copy as aforesaid, shall forfeit forty shillings for every day he shall, without the archbishop's or bishop's consent in writing, wilfully continue to hold such house, building, &c. the said penalty or penalties to be recovered by action of debt, bill, plaint, or information in any court of record at Westminster, or the courts of great sessions in Wales, and the whole to go to the person suing, together with costs: but in case of any contract before the Act, the person holding shall not be liable to any penalty for three calendar months from the service of such order as aforesaid: and sequestration for disobedience to reside shall not issue for three calendar months, to be computed from the service of such order of the archbishop or bishop. Neither shall any person be liable for non residence while such tenant shall continue to occupy, t. 35.
At common law, if a parson had made a lease for years of his glebe land, to begin after his death, or granted a rent charge in that manner, and such lease or grant were confirmed by the patron and ordinary, this would have bound the successor of the parson ; because here were the consent and concurrence of all persons interested, and the lease or charge bound immediately from the perfecting of the deed by the parson, patron, and ordinary, though it was not to take effect in pos
(o) Christian's N. 4.
session, till after the parson's death: but now, no confirmation whoever will make such lease or grant good against the successor, by reason of the statutes made to avoid them (a).
If a parson obtain a grant to build houses on church or college lands, which is confirmed, (in case where confirmation is necessary,) yet this grant is no alienation against the statutes, but is only a covenant or licence, and nothing else; for the soil remains in the grantor, and by consequence the houses built thereon are in him (a).
In some cases, the confirmation of the patron is necessary, and in some not; wherein this diversity is taken in the books, That such sole corporations, who have not the absolute fee and inheritance in them, as prebends, parsons, vicars, and such like, if they make any leases or estates, there in order to bind their successors, the patron must confirm the same : but such sole corporations who have the whole estate and right in them, as bishops, abbots, &c. or such corporations aggregate, who have the whole fee and inheritance in them, as dean and chapter, masters, fellows, and scholars of any college, hospital, &c. these may make leases to bind their successors, without any confirmation of the patron or founder, though the bishop, abbot, dean, master, &c. were presentable; and the reason of this diversity appears in the nature of the right with which each is invested (b).
But if a parsonage or vicarage be a donative, then the confirmation of patron alone is sufficient to all leases, &c. made by the parson or vicar, and shall bind the successor without the confirmation of any other (b).
Yet, if there be a lord-paramount, as well as an immediate patron, confirmation of the immediate patron, without the other's confirmation, is not good; as if a parson be patron of the vicarage of the same church, and the vicar makes a lease confirmed by the parson and ordinary, this is not good without the confirmation of the patron of the rectory also, because both have an interest in the possessions of the vicarage (b).
As a patron may confirm explicitly by his deed or writing, so may he also confirm by consequence of law: for, if a parson makes a lease for years to the patron, who grants or assigns it over to another, this amounts to a confirmation in law by the patron, because a confirmation being nothing but an assent under the hand and seal of the party confirming, such assent in this case sufficiently appears by his assigning over the lease to another (b).
Another difference observable in the manner of confirming such leases as we are treating of, is, as to their duration, or continuance: for, if a person make a lease for twenty-one years at this day, and the patron and ordinary confirm his estate therein for seven years, or (after
(s) B»c. Abr. tit. LeaitJ. (E.) *) Ibid. (G, t.)
reciting the lease) "not beyond" that term, yet is the estate or lease well confirmed for the twenty-one years; for when they confirm the estate of the lessee, that is entire, and cannot be divided (a).
As to the estate which they who make such confirmation ought to have, to make the lease effectually binding upon the successors, this regards chiefly the patron, whose advowson or right of patronage, being a temporal inheritance, and considered as such, is to be governed by the same rules as other temporal inheritances are: his confirmation, therefore, being in nature of a charge upon the advowson, is to be directed by the estate which he hath in the advowson, and can continue no longer than that endures (b).
If, therefore, the patron had a conditional estate in the advowson, and he confirm a lease of the parson's, and afterwards the condition be broken, this defeats also his confirmation, so that the succeeding incumbent shall not be bound by it. So, if a church be full of a parson, and afterwards another is made parson, and he makes a lease for years, which is confirmed by the patron and ordinary, yet the lease is void; because he who made it was not parson, the church being full before (*).
As to the time of confirmation, generally speaking, it is not material whether it be before or after the making of the lease, which is to be confirmed, so it be made in the life-time of the parties who make the lease: for the confirmation is but an assent or agreement by deed, to the making such lease or grant, and not a confirmation of the estate itself (b).
Thus, where a bishop made a lease on the second of May, which was confirmed the third of May, and sealed the fourth of May, this was held a good confirmation (c).
Yet it hath been holden on the contrary, that if a confirmation be made and delivered before the grant or lease be confirmed, that this is not a good confirmation; and though, after the grant or lease, the deed of confirmation be delivered again, yet that will not make it good; for that it was a deed by the first delivery, and the second delivery will not make it good as an assent, because the assent ought to be by deed, and the first delivery was void; but that confirmation may be made before the grant or lease be confirmed, the other cases are express (c).
If a bishop, parson, or any other sole ecclesiastical corporation, make a lease for years, which needs confirmation, his confirmation ought to be made in the life and during the incumbency of the lessor, for after his death, resignation, deprivation, or other amotion, the lease is become void for want of confirmation; and then, confirms*
(a) Bac. Abr. tit. Lciiei. (G. St.) I M Ik'd- (G- 40
tion made after cannot revive it, though it be made in the vacation before any successor comes in (a).
But if a parson make a lease for years, which is not confirmed by the bishop or patron, then in being, but by the succeeding bishop and succeeding patron, this is a good lease, and shall bind the successor.
Section XII. Of Leases by Trustees of Charities.
Leases of charity lands are under the peculiar cognizance of the Court of Chancery, and where a lease is made by trustees at an undervalue, by collusion between them and the lessee, the Court can make a decree not only against the trustees, but also against the lessee for the surplus value (b).
The mode of granting leases of charity lands is sometimes prescribed by the founder, as that the term shall not exceed twenty-one years, that no fine shall be taken, &c. and then the terms of the power must be strictly pursued: and sometimes power is given to the trustees to make leases generally, in which case they have a power both in law and equity, either to take fines or reserve rents, as is most beneficial for the charity (b). Where there is no power, the trustees must be guided by the general principles of the Court, which will take care that a reasonable discretion is exercised (c).
Where the rules of the foundation directed that no lease shonld be granted for more than twenty-one years, and that at the old rent, taking a fine of two years' value; a lease for twenty-one years at the old rent, with a covenant by repeated renewals to make it up sixty years, was decreed upon certain conditions, to be confirmed for twenty-one years from the last renewal, but the covenant for renewal was declared void, as rendering the lease no less prejudicial than an actual lease for sixty years (d).
A college restrained by its constitution from making leases, other than for twenty-one years, at a rack-rent, made an entry in their audit book, recommending it to their successors to renew a particular lease at less than the rack-rent, the tenant having made great improvements. The Court refused to decree the renewal, censuring the parties who had signed the order for a breach of the college statutes (e).
Where long leases of charity lands have been procured upon terms very inadequate to their fair value, the Court has, in several instances, interfered to annul them, and to bring the lessees to a just account of the rents and profits (/).
An alienation for ninety-nine years of a charity estate, if it be a mere husbandry lease and without consideration, is a lease which the Court will not permit to stand, unless it is shewn to be fair and reasonable, and for the benefit of the charity (a). A long lease of a charity estate is prima facie a breach of trust, and a proof of the circumstances that make it a provident administration is thrown on those who take such a lease (a). Therefore, trustees of a charity cannot in general, unless specially empowered, grant a lease for seventy years, cxceptfor the purpose of building (b); for a case may occur in which the property cannot be made beneficial without building, and the trustees may have no fund.
In 1715 the trustees of a charity granted a lease of lands, theretofore let at 31/. per annum, for nine hundred and ninety-nine years, in consideration of soot. to be laid out in improvements, and of 4/. per annum additional rent. The Court considered this to be a sort of perpetuity, destructive to the charity estate, and therefore decreed the lease to be given up, but as the tenant had lately laid out 600/. in improvements, it was ordered that he should have just allowances made him in the account which was directed (a).
It is laid down in a recent case (c), that neither a lease of charity land for ninety-nine years, as a mere husbandry lease, upon terms and at a rent adapted to a lease for twenty-one years; nor a building lease of nine hundred and ninety-nine years upon an expenditure, commensurate to a term of ninety-nine years, can be supported.
But a lease of charity lands for eighty years, was supported as to the interest of a sub-lessee, who had given a fair consideration, and had no notice, except that the estate belonged to a charity (c); the Court observing that its feelings upon the abuse of a charity estate must not carry it beyond what is just, even against those who are guilty, much less against other persons; and upon that ground the decree should be mollified with regard to the interests of sub-lessees having given a fair consideration; merely directing them to pay the rent to other persons than those to whom they had contracted to pay it. The interests of those persons may be very fair, as between them and those from whom they take; and the relief in these cases is to be adapted to the conduct of the parties, as the Court finds them respectively to have acted fairly or not, towards the trust.
Section XIII. Of Leases by married Women; and Husbands seised in right of them.
If a woman has power to dispose, she may execute her power by conveyance. For the general rule is, that a feme covert acting with
(<i) The Attorney General v. Green. 6 \\i. 451
y', The Attorney General v. Griffith. Ij
(r) The Attorney General v. Backhouse. 17 V«. S83.