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5. Within years from the date of this agreement XIII. Por
Building the grantee shall at the like cost erect and complete on the said premises good and substantial messuages or dwelling to erect houses at the cost of £ - at the least for each messuage dwelling
houses ; or dwelling house with its appurtenances; and all such messuages or dwelling houses shall be built of solid brick or stone, with roofs of the best slate or ornamental tiles, and shall have suitable gardens, outbuildings, and offices attached thereto, and proper drains and sewers connected therewith ; and each such messuage or dwelling house and its appurtenances shall be constructed of good well-seasoned and proper materials of all kinds, and to be well and sufficiently fenced off as aforesaid from the adjoining premises ; and all such messuages, buildings, and works shall be erected, contracted, and executed according to plans, elevations, and specifications to be previously approved by the architect or surveyor for the time being of the grantor, and shall be carried out and completed under the inspection and to the satisfaction in all respects of such architect or surveyor. 6. The grantee shall be at liberty to make, open and lay to make
. out such roads, streets and approaches in, through, over, or streets, &o. upon the said premises hereby agreed to be purchased by him as he shall think proper or advantageous, the plans of all such proposed roads, streets, and approaches being first submitted to and approved of by the architect or surveyor for the time being of the grantor ; Provided always that all such roads, streets, and approaches, and the drains and sewers to be connected with the messuages to be built as aforesaid, shall be completed within years from the date of this agreement, to the satisfaction in all respects of such architect or surveyor as aforesaid.
7. When and so soon as any plans or elevations of the To deposit said messuages, buildings and works hereby agreed or autho- copies of
. rized to be erected, constructed, and executed, shall have been approved by the architect or surveyor for the time being of the grantor, the grantee shall at his own cost cause good and accurate copies or tracings thereof to be deposited with such architect or surveyors, and no messuage, building, or work whatever shall be erected, constructed, or executed by the grantee upon the premises hereby agreed to be purchased by him, or upon any part thereof, except only in accordance and conformity with the stipulations and provisions herein con
Contents of conveyance.
tained respecting the erection, construction, and execution of the messuages, buildings, and works hereby agreed or authorized to be erected, constructed, and executed on the said premises.
8. When and so soon as the architect or surveyor for the time being of the grantor shall certify in writing that the said messuages, buildings, and works, hereby agreed to be erected, constructed, and executed, have been completed to his satisfaction the grantor shall make and execute to the grantee, and the grantee shall accept a grant or conveyance of the premises hereby agreed to be purchased, and the grantee shall also execute a counterpart thereof; such grant or conveyance, and the counterpart thereof, shall be prepared by the solicitors of the grantor at the cost of the grantee.
9. The said grant or conveyance shall be made to the uses following, that is to say :-to the use that the grantor, his heirs and assigns, may, as from the date of the execution of this agreement, receive a clear rent-charge of £ annum, to be payable at the times and in manner aforesaid, and subject to and charged with the said rent-charge, and the usual powers and remedies for enforcing payment thereof to the use of the grantee in fee-simple; and shall also contain the following covenants by the grantee, that is to say:to pay the said yearly rent-charge clear of all deductions; to allow the grantor to get, and work, and carry away the mines and minerals in and under the premises hereby agreed to be purchased, the grantor making compensation for damage occasioned thereby; to keep the said messuages and buildings hereby agreed to be erected and constructed in good and tenantable repair and condition, and insured against loss or damage by fire in some public insurance office to be approved by the grantor in a sum not less than two-thirds of the value thereof; and to produce the policies and receipts for payment of the last premium to the grantor on demand; and not to use, nor permit to be used, without the previous consent in writing of the grantor, his heirs or assigns, any of the said messuages or buildings for any purpose whatever, except as a private dwelling-house, nor to alter, nor permit to be altered, without such consent as aforesaid the plan or elevation of any of the said messuages or buildings; nor to erect, construct, or execute without such consent as aforesaid, on the premises hereby agreed to be purchased, or any part thereof, any other
messuage, building or work, other than such as are herein. XIII. For
Building before agreed or authorized to be erected, constructed, and Grant. executed: And shall also contain a power or proviso for reentry by the grantor, his heirs and assigns, in case the said rent-charge, or any part thereof, shall fall months in arrear, or in case the grantee shall fail to observe and perform the covenants to be contained in the said grant or conveyance, and on his part to be observed and performed.
10. If the said yearly rent-charge, or any part thereof, If grantee shall at any time before the execution of the said grant or shall fail to
perform sticonveyance, be in arrear and unpaid for weeks after pulations, any of the days herein before appointed for payment of the grantor may same, or if the grantee shall not within the time, and in manner aforesaid, complete the said messuages, buildings, and works hereby agreed to be erected, constructed, and executed, or shall for weeks discontinue the erection, construction, or execution of the same respectively, or shall fail to carry out into complete effect the agreements herein contained, then, and in any such case it shall be lawful for the grantor at any time thereafter to re-enter upon the said premises and take possession of the same, and of all buildings and materials erected and being thereon, and thereupon this agreement shall become absolutely void.
11. [Arbitration clause, post, p. 546.] AS WITNESS, &c.
XIV. AGREEMENT for the SALE of the Right of
Patronage of an Advowson (a), in fee for Life or
ARTICLES OF AGREEMENT, made the day of BETWEEN A. B., of &c. (hereinafter referred to as Parties.
(a) Originally all advowsons in the hands of lay patrons Distinction appear to have been donative, the patron conferring the church between and all the temporalities annexed, by investiture, without the donative and Decessity of any institution by the bishop. The clerk was not presentative presented to the bishop, but was at once invested with the temporalities by the patron. After the church became vacant, and until the patron chose to fill it, he took the profits of the benefice to his own use, and on his death they went to his heir,
XIV. Sale of the vendor), of the one part, and C. D., of &c. (hereinafter
referred to as the purchaser), of the other part.
there being no direct means of compelling him to fill the vacancy, but only ecclesiastical censures. See Fairchild v. Gaire, Yelv. 61; S. C., Cro. Jac. 63; Britton v. Ward, 2 Roll. Rep. 97; Mallory, Quare impedit, 35. After a long struggle, the church succeeded (about the beginning of the thirteenth century), in establishing almost universally throughout England the course of filling parochial churches by presentation to the bishop, when the practice of investiture by the lay patron was
consequently discontinued : Selden, Hist. Tithes, c. 12, s. 5. Lapse. At the same time the doctrine of lapse was introduced, which
entitled the ordinary to collate a clerk to the benefice, if the patron neglected to present one within six months from the happening of the vacancy. But some donatives survived the introduction of presentation and institution, or were so created by the crown, or were so established by their founders; and to these the law of lapse did not apply, but the patron still enjoyed the profits during a vacancy, and might at any time take back the benefice by resignation from the incumbent See the learned judgment of Littledale, J., in Rennell v. Bishop of Lincoln, 9 Dowl. & Ry. 810; S. C., 7 B. & Cr. 113. "If the founder ordain that he and his heirs shall present them, the ordinary shall have nothing to do with it:" Year Book, 6 Hen. 7, c. 14. Free chapels donative are of this nature: see Brooks, Ab. Presentment al Esglise. Lord Coke's account of the matter is, that a church parochial may be donative and exempt from all ordinary jurisdiction, and the incumbent may resign to the patron, and not to the ordinary, neither can the ordinary visit, but the patron, by commissioners to be appointed by him. And so it is of a prebend, charity, chapel donative and the like, and no lapse
shall incur to the ordinary, except it be so specially provided in the Extinguish- foundation. But if the patron do once present to the ordinary, ment of and his clerk is admitted and instituted, it becomes presentable, donative.
and shall never be donative after, and then lapse shall incur to the ordinary. “At first,” adds Lord Coke, "all the bishoprics in England were donative, and King Henry the First, being requested by the Bishop of Rome to make them elective, refused it; but King John, by his charter, granted that the bishopries should be eligible.' if the king found a church, hospital or free chapel donative, he may exempt the same from ordinary jurisdiction, and then his chancellor shall visit the same. So he may by his charter license any subject to found such a church or chapel, and to ordain that it shall be donative and not presentable, and to be visited by the founder and not by the ordinary. And thus began donatives in England, whereof common persons were patrons :" Co. Litt. 344 a. See Shirt v. Carr, 2 Br. P. C. 173; Diron v. Metcalf, 2 Eden, 360 ; S.C.,
nom. Diron v. Kershaw, Ambl. 528. Advowsons Besides the distinction of advowsons into presentative and collative.
donative, there is a third division dependent, not on the nature of the advowson itself, but on the situation of the owner, which
1. The vendor agrees to sell, and the purchaser agrees to XIV. Sale of purchase, ALL THAT the advowson, and perpetual right of
for sale and is that of advowsons collative. When the advowson or the purchase. right of appointment for the time is in a bishop, as he cannot present to himself, he combines all in one act of collating or conferring the benefice : 2 Blackst. Com. 22.
An advowson is appendant when it is annexed to a manor, in Advowsons gross when it is either severed from a manor, or originally had appendant
and in gross. no connection with any manor, as where a person builds and endows a church and becomes patron of the benefice : Mirehouse, Adv. 13. If an appendant advowson be granted away for a partial estate, it becomes again appendant on the failure of that estate : Finch's case, 6 Rep. 39 a ; Hartop v. Cock, Hutt. 88; Dyer, 259 ; Wats. Cl. Comp., Incumb. 69; Bishop of Meath v. Marquis of Winchester, 3 Scott, 561. But an advowson may be appendant to land merely, as well as to a manor; as, where tho lord of a manor conveys land, parcel of a manor, with the advowson, the advowson will then be appendant to the land. An advowsou appendant passes as an appurtenance, with that to which it belongs, although not named: see Earl of Albermarle v. Rogers, 2 Ves. jun. 477. But, upon a grant from the crown Grant from of a manor, with the appurtenances, an advowson will not pass, the crown
will not puss unless named: Stat. de prerogativá regis, 17 Edw. 2, stat. 1,
on advowson c. 15; Bac. Ab. prærog. (F. 2.); Hargr. Co. Litt. 121 b, n. 2; appendant, Whistler's case, 10 Rep. 63; Willion v. Berkley, 1 Plowd. 223 ; unless named. Chancellor of Cambridge v. Walgrare, 1 Hob. 126; Attorney-Gen. v. Situell, i Y. & C. Ex. 559. If the owner of a manor, with Disseisin. an advowson appendant, is disseised, he shall present to the church, though it falls vacant during the disseisin : Fitzh. N. B. 33, Q.
Upon the appropriation of rectories by ecclesiastical corpora- Advowson of tions, and the endowment of vicarages, the advowsons of the a vicarage vicarage became appendant to the rectory, subject
, of course, to appendant. future separation : Anon., Dyer, 350 b.; Shirley v. Underhill, Moore, 894; Hob. 327. An advowson of a vicarage may be appendant to a rectory as being derived and endowed out of the same : Phil. Eccl. Law, 333; or it may be appendant to a manor as attached to a rectory which is itself appendant to the manor, or by a presumed grant by the rector time out of mind : Mirehouse, Adv. 9.
As to perpetual curacies, see Arthington v. Bishop of Chester, Perpetual 1 H. Bl. 418; Faulkner v. Elzer or Elger, 6 D. & Ry. 517; S. C., curacies. 4 B. & Cr. 449; Farnworth v. Bishop of Chester, 7 D. & Ry. 96 ; S. C., 4 B. & Cr. 555 ; Edenborough v. Archbishop of Canterbury, 2 Russ. 93; Doe d. Richardson v. Thomas, 9 Ad. & El. 556.
An ecclesiastical patron of a presentative or collative living Alienation of may grant his patronage ; and his grant is good for his own
by spiritual See 7 Bligh, 282, 288; but it must be expressly
patrons. described, and did not, it was said, pass under a demise, by a prebendary, by the words, “commodities, emoluments, profits, and advantages to the prebend belonging;” because those words implied things gainful, which is contrary to the nature