XIV. Sale of patronage and presentation of, and to the rectory and parish Advowson. Parcels. church of of ADVOWSON. To deliver abstract. Creditor's remedy against advowsons. FOR LIFE. FOR LIVES. FOR YEARS. FOR YEARS DE- in the county of and in the diocese and of the fee-simple and inheritance thereof (b), free from incumbrances (c), at or for the price or sum of £ 2. The vendor will deliver unto the purchaser, within days from the date hereof, an abstract of the title (d) of an advowson: London v. Collegiate Church of Southwell, Hob. 303. An advowson is not extendible; but, under the stat. 1 & 2 Vict. c. 110, s. 13, may be sold by a judgment creditor. (b) If for life, say, "for the natural life of the said [purchaser], (or [nominee], of &c.)." If for lives, say, "for the lives and life of [nominees], of &c., and the survivors and survivor of them." If for years, say, "for the term of years from the date hereof." If for years determinable on lives, say, "for the term of years from the date hereof, if the said [purchaser] (or [nominee], of &c.), should so long live." (c) A mortgage of the living to the governors of Queen Anne's Bounty was held to be a charge on the living only, and not on the advowson, and a purchaser who discovered the existence of such a mortgage before completion was compelled specifically to perform his contract without compensation, there being no fraud on the part of the vendor: Edwards-Wood v. Majoribanks, 7 H. L. C. 806. (d) The title to an advowson should be carried back at least 60 years, or for such longer period, not exceeding 100 years, as shall comprise three successive incumbencies, (in which number presentations by the crown on the promotion of an incumbent are not to be reckoned) and should be accompanied by a list of the successive presentations during that period, ante, p. 58. Where the advowson appears to be appendant to a manor, a mere sixty years' title is usually, but perhaps without much reason, considered sufficient. As the Vendor and Purchaser Act, 1874, does not contain any definition of land, it is not clear that an advowson is within that Act; it will therefore be prudent to stipulate expressly as in the text that recitals, &c. shall be evidence. For the meaning of land generally in Acts of Parliament, see stat. 13 & 14 Vict. c. 21, s. 4. An advowson is within the definitions contained in the Conveyancing and Law of Property Act, 1881, and the Settled Land Act, 1882. of the said vendor to the said advowson, such abstract to com- XIV. Sale of mence with, &c., and also extracts certified by the registrar of Advowson. the Bishop of -, of all the successive presentations to the said rectory since the -day of 17-, [the commencement of title]. All recitals, statements, and descriptions contained in any document dated twenty years or upwards before the date of this agreement, shall be conclusive evidence of the facts and matters therein recited, stated, or described or thereby implied respectively. 3. [Delivery of requisitions, ante, p. 403.] 4. [Requisitions insisted on to entitle vendor to rescind, ante, p. 404.] day of 5. The purchaser shall on the , pay Completion of purchase. the purchase-money at the office of Messrs. the " vendors' solicitors, at and the purchase shall then and there be completed. On payment of the purchase-money as aforesaid, the vendor and all other necessary parties (e), shall convey and assure the said advowson, with the appurtenances, unto the purchaser (f), or as he shall direct. The conveyance or assurance shall be prepared by and at the expense of the purchaser, and shall be left not less than days before the said day of for the approval of the said solicitors of the vendor. 6. The vendor shall, on the execution of the said convey- Delivery of ance, at his own charges, deliver unto the purchaser true of title deeds, attested copies and attested copies of all deeds, evidences, and writings, and acknowledgment of concerning the said advowson; And in the said conveyance right to enter into the usual acknowledgment of the right of the originals (9). purchaser to the production of the originals, and undertaking for their safe custody, and to permit the said (e) A husband is tenant by the curtesy of an advowson, though Dower and the church was not void during the marriage: Co. Litt. 29, a; curtesy of an Perk. s. 468; and a woman is dowable of an advowson in gross or appendant: Cro. Jac. 621. advowson. LIVES. (f) "for his life (or unto the said [purchaser], his heirs FOR LIFE OR and assigns, for the life of the said [nominee],) (or for the lives and life of the said [nominees], and the survivors or sur- FOR YEARS. vivor of them), (or unto the said [purchaser], for the said term of years, determinable as aforesaid)." (g) This clause will be used where the deeds relate to other Deeds relate property of greater value than the advowson, or where for any to property other reason they are retained by the vendor. of greater value. XIV. Sale of purchaser to have any fresh copies thereof respectively from time to time, at his own expense. Advowson. In case of incumbent's day of 7. In case of the decease, cession, deprivation, or relinquishment of the present incumbent of the said advowson, beconveyance, fore the said purchaser to the vendor shall duly advowson, as the purchaser shall nominate (h); but if the presentation to the said nominate next present such person to the said incumbent. Right of presentation on promotion of clergymen to bishoprics. Commendam retinere. But it seems the crown had not this prerogative anciently. (h) Upon the promotion of any spiritual person to a bishopric, whether in England or in the Isle of Man, all the benefices or dignities, except donatives, which he was possessed of before such promotion, are void upon his consecration, and upon his confirmation in case of translation; and the crown is entitled for that turn to present to them in right of the royal prerogative, although the advowson belongs to a common person: Wood's Inst. 37, 10th ed.; 3 Com. Dig. 198, Esglise (H. 6); Burn's Eccl. Law, 9th ed. 141, 212. But the right must be exercised in the lifetime of the person promoted: Archbishop of Armagh v. Attorney-General, 2 Br. P. C. 514. But the bishop might formerly prevent the avoidance by dispensation of retainer of such benefices as he had, if obtained before his consecration, or confirmation of his election; which was commonly called a commendam retinere, and was usually granted by the Archbishop of Canterbury, according to the statute 25 Hen. 8, c. 21, upon the king's mandate expressing his consent to it, as the true patron of the benefice for that turn; and it seems that by a commendam for life, and for the time of continuing in the bishopric, the turn of the crown was answered, and in such a case the proper patron presented upon the death or translation; but that the right of the crown was not defeated by a commendam granted for a term of months or years certain and limited Gibson's Codex, 763, 913, 914, 915, 2nd ed. And see the great case of commendam, Colt & Glover v. The Bishop of Coventry and Lichfield, Hob. 140. But after the passing of stat. 6 & 7 Will. 4, c. 77, s. 19, no benefice can be held in commendam; see also 1 & 2 Vict. c. 106, and 13 & 14 Vict. c. 98. The right of presentation on promotion, however, appears to have been an usurpation of the crown, and anciently the law was taken to be, that the rightful patron ought to present; and, as Levinz says, there is little or no reason that the king should present, because he has promoted the parson; for the church is the patron's church, and it is reasonable he should have the presentation of a parson thereto (under whom he and his tenants and servants are to live), whose manners, doctrine, religion, and conversation ought to be such as he shall approve; and, by the same reason, if the king promote my chaplain of my family, or my bailiff, or other servant, he may impose another upon me. That anciently the king had no such prerogative is clear—(1) because no mention is made of any such prerogative either in the king or the pope, as certainly there would have been if any such thing had then been: (2) there is no mention of it in the stat. de prærogativá Regis, Advowson, advowson should devolve on the crown, in consequence of the XIV. Sale of present or any succeeding incumbent being promoted to a 17 Edw. 2, st. 1, which for the most part is but a sum or collection of certain prerogatives that were known law long before; nor in Stamford's Treatise upon that statute (see particularly cap. 8): (3) and the 5 Edw. 2, 148, in the book published by Serjt. Maynard, it appears that Hugh de Courtney brought a Quare impedit and counts, that the Countess of Albemarle was seised, and presented a clerk, who was made a bishop, and so derives a title to the plaintiff to present; but there is no mention of the king's prerogative, or any presentment by him upon the parson's promotion to the bishopric: (4) nor is any such thing mentioned in any of our ancient books, as Glanville, Bracton, Britton, Fleta, Doctor and Student (see particularly Dial. 2, c. 36, 37, pp. 218, 220, 18th ed.), &c.; and it has been denied to be law, as in Dyer, 228, b.; 3 Lev. 378. If incumbent be made a sent is now But the king's prerogative in such cases has been favoured The king's since, and the law has now been settled, however repugnant to prerogative reason, as Dr. Watson says (Clergyman's Law, 74, 4th ed. cap. 9), right to prethat the king shall present upon such an avoidance: Wright's clearly estacase, Moore, 399; Edes v. Bishop of Oxford, Vaughan, 19; Rex blished. v. Episcop. Londin., 3 Lev. 377; 1 Ld. Raym. 23; Holt, 586; Salk. 540; 4 Mod. 206; S. C., 1 Show. 441; Mr. Justice Dolben said, however, it had been always grumbled at; that it never came in question, but some judge or other was against it; that it having been so common in great livings, that the true patron in St. Andrew's, Holborn, had not presented above once in a hundred years, when he presented Dr. Stillingfleet; and he added, the church would suffer by it, because there was no one who had a great living but would present a blockhead, who was not likely to be made a bishop, in order to preserve his presentation: 1 Show. 461, 462, 463. The king has this prerogative whether the church be new or The king has old; and it extends as well to the second, third, and all other this prerogasuccessive promotions to bishoprics from the same benefice or tive, although dignity: Gibson's Codex, 763, 2nd ed. Thus, by the 1 Jac. 2, it the advowson be newly was enacted, that St. James in the Fields should be divided from created, and the parish of St. Martin, and a church erected there, and that it he has it toties should be a parish of itself; and it was determined in The King quoties. v. Bishop of London and Birch, 3 Lev. 382; 2 Salk. 540; 4 Mod. 200; 1 Show. 164, S. C., on the promotion of the rector of the parish of St. James to a bishopric, that the king has the same prerogative in churches newly erected, as in the old, to present, on promoting the parson to a bishopric; and in the above case of The King v. Bishop of London and Dr. Lancaster, 3 Lev. 377, the crown presented thrice successively to the living of St. Martin in the Fields: and so, where the rector of Bow Church, &c., united into one parish by the 22 Car. 2, c. 11, s. 63, was created Bishop of Rochester, King George I., by his prerogative, in 1720, presented Dr. Lisle, who being afterwards created Bishop of St. Asaph, King George II., in 1744, presented Dr. Newton in like manner: Grocer's Company v. Archbishop of Canterbury, 3 Wils. 214; S. C., 2 W. Black. 770. B.-VOL. I. H H XIV. Sale of bishopric [either] before [or after] the said Advowson. bishop, con tract not to be affected. Quare, whether this doctrine extended to Ireland. Colonial bishopric. The right of the crown postpones, but does not defeat the right of the person having the next presentation. A grant of the next pre sentation means that which the grantor is next entitled to. after church is vacant. day of this contract shall not be affected thereby, nor shall In Ireland, no person could formerly accept a bishopric there, until he had resigned all the preferments which he had in England: which preferments being void before the acceptance of the bishopric, it seems that the king in such case would lose the presentation: 1 Burn's Eccl. Law, 9th ed. 141, 212. No right of the crown to present to a benefice arises upon the appointment of the incumbent to a colonial bishopric: Reg. v. Eton College, 8 Ell. & Bl. 610; S. C., 27 L. J., Q. B. 132, and 4 Jur., N. S. 35. The right of the crown to present upon promotion, postpones the right of any grantee who has the next avoidance; as in the case put in Co. Litt. 379 a, that if a man seized of an advowson in fee, whether in gross or appendant, take a wife, by act in law the wife is entitled to the third presentation, if the husband die before: F. N. B. 148, C.; 150, G.; Perk. s. 342, 343; Co. Litt. 32 a (contra, Cro. Jac. 691); and if the husband grant the third presentation to another, and the husband die before the church becomes void, the heir shall present twice, and the wife shall have the third presentation, and the grantee the fourth; for, in this case, it shall be taken to be the third presentation, which he might lawfully grant. Thus, in the Grocer's Company v. Archbishop of Canterbury, in which three patrons had a right to present by turns, it was decided by the whole Court, that the prerogative presentations cannot be considered as turns, or deprive a patron of his turn; for a prerogative presentation upon the promotion of an incumbent to a bishopric is by act of law, which cannot operate to the injury of a third person; for constructio et actus_legis_nulli facit injuriam: Co. Litt. 148, 183 a, b; 2 Inst. 287; Dyer, 35, b. In fact this is the fifth vacancy; but with respect to the patrons, it is but the third opening or avoidance, wherein the presentation of a patron, having the third turn, could take place: 3 Wils. 232; 2 W. Blacks. 773; vide Perk. s. 331, 332; Hal. MS. n.; Co. Litt. 32 b; stat. 3 & 4 Will. 4, c. 27, s. 31, ante, p. 18. So the grant of the next presentation to a benefice was decided to mean the next which the grantor would by law be entitled to make; and that, therefore, if the present incumbent be made a bishop, a covenant for title in the grant is not broken, and the grantee may present on the next vacancy: Calland v. Troward, 2 H. Blacks. 324; Troward v. Cailland, in error, 6 T. R. 439; aff. D. P., Id. 778; 8 Br. P. C. 71. Next preThe grant of the next presentation, or of an advowson, made sentation can- after the church is actually vacant, is a void grant quoad the not be granted fallen vacancy: Brookbie's case, Cro. El. 174; Baker v. Rogers, Id. 788; and the possession of a clerk who has been wrongly presented is a vacancy: Walker v. Hammersley, Skinn. 90. But it is good as to the advowson itself: Wolferstan v. Bishop of Lincoln, 2 Wils. 174; 3 Burr. 1504; 1 Wm. Blacks. 490; 2 Id. 1054, and Serjt. Hill's MS. notes, Elsley's edit. And even if the contract be simoniacal, the conveyance of the advowson made in pursuance of such contract is void only as to the next presentation: Greenwood v. Bishop of London, 1 Marsh, 292; 5 Taunt. |