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the said purchaser be entitled to any deduction out of the XIV. Sale of
Advowson. said purchase-money.
IN WITNESS, &c.
XV. AGREEMENT for the Sale of the NEXT PRE
SENTATION to a Parsonage (a). ARTICLES OF AGREEMENT made this day of
18—, BETWEEN (vendor], of &c. (hereinafter re- Parties.
727. It is said in some of the books that there is a difficulty in enforcing the right to present in case of a conveyance of the advowson during the vacancy, for that neither the grantor nor the grantee can bring a quare impedit; Leak v. Bishop of Corentry, Cr. El. 811; but this is a mistake. See Rennell v. Bishop of London, 7 B. & Cr. 113.
Where a person having notice that the incumbent of a rectory Purchase of was on his death-bed, and that it was uncertain whether he advowson, would live over the night, purchased the advowson; the incum- incumbent bent died the next day; whereupon the purchaser presented his being in
extremis, clerk clerk who was not privy to the contract: and the Court was
not being of opinion, that the presentation was not void, it not appearing privy, next to have been made upon a simoniacal contract : Barrett v. Glubb, presentation 2 Wm. Blacks. 1052; S. C., Bac. Abr. title “Simony,” (A.); good. and this decision was confirmed by the House of Lords (reversing the decision of the Court of King's Bench) in Fox v. Bishop of Chester, 3 Bligh, N. R. 123; 1 Dow. & Cl. 416.
(a) By the 13 Ann. c. 13, s. 1, Roman Catholics are disabled Roman from presenting to any benefice; and every such presentation is Catholics candeclared void to all intents and purposes.
By the stat. 11 pot present to
benefices; Geo. 2, c. 17, s. 5, every grant made of any advowson, or right of presentation, collation, nomination, or donation to any benefice, by any person professing the Roman Catholic religion, or by any mortgagee, or trustee of such person, shall be null and void; unless it be for valuable consideration to a Protestant and grants purchaser; 3 Cru. Dig. 26, 2nd ed., ante, p. 146; and the same by them must statute also avoids the devise of any such benefice with the be to Prointent to secure the benefit thereof to the heirs of
chaser. Catholic. The Act of 10 Geo. 4, c 16, has not removed the disabilities of Papists in respect of ecclesiastical and charitable patronage : ss. 16, 17, 18. The practice of many of the leading Roman Catholic families has been to leave the advowsons attached to their estates to descend from time to time, and expressly to exclude them from the operation of a settlement or a will, taking care that the next presentation after a subsisting incumbency is actually and bona fide sold in the market to a Protestant purchaser, when and so soon as a new incumbent has been appointed. Other Roman Catholic families appear to have ignored the statutes, and have adopted the practice of including a grant of advowsons in the settlements of their
XV. Sale ferred to as the vendor), of the one part, and [purchaser], of
&c. (hereinafter referred to as the purchaser), of the other to Parsonage. part.
of Next Presentation
estates; but as they could not present on a vacancy, the tenant for life has conveyed the next presentation to some Protestant friend, or demised to him the advowson for ninty-nine years if the tenant for life should so long live, in trust to present such person as the Protestant shall think fit. When the living becomes vacant the Protestant presents the Papist’s nominee, but it is considered that this latter practice is directly opposed to
the statute, and that all such attempts to evade the restriction Papist joint thereby imposed are utterly void. The right of presentation owner with given by the stat. of 13 Ann. c. 13, to the universities, does Protestant.
not arise where a Papist is jointly seised of an advowson with a Protestant, but the whole right resides in the latter: Edwards v. Bishop of Ereter, 7 Scott, 652; 5 Bing. N. C. 652. A Jew may present to a living: See 7 Bligh, 322. An infant may nominate and present to a benefice; for his guardian takes nothing but that for which he can account, and a presentation after a vacancy has no pecuniary value: Co. Litt. 17 b; Bishop of London v. Wolferstan, 2 Wils. 174 : Arthington v. Corerley, 2 Eq. Ca. Ab. 518; 1 Fonbl. Eq. 84, n. Under the old law an avoidance before a sale by the assignees of a bankrupt patron belongs to the bankrupt : Watson, 106; 7 Scott, 667. But by the Bankruptcy Act, 1883, sect. 44 (ii.), re-enacting Act of 1869, s. 15 (4), the right of nomination to a vacant ecclesiastical benefice remains in the bankrupt. An outlaw's right of presentation, as already mentioned, belongs to the crown, and so does that of an alien: Wats. 106.
As to the right of presentation among tenants in common, joint-tenants, and coparceners, see Co. Litt. 186, b; Seymour v. Bennett, 2 Atk. at p. 483; Barker v. Lomas, Wilks, 659 ; Buller v. Bishop of Exeter, 1 Ves. sen. 340 ; Edwards v. Bishop of
Ereter, 7 Scott, 652; Richards v. Earl of Macclesfield, 7 Sim. 257. Clergymen The stat. 13 Ann. c. 11, s. 2 (Rev. Stat.), after reciting not to pur- “Whereas some of the clergy have procured preferments for chase the next themselves by buying ecclesiastical livings, and others have been presentation,
thereby discouraged,” enacts, " That if any person, from and sented there. after the twenty-ninth day of September, 1714, shall or do, for upon. any sum of money, reward, gift, profit, or advantage, directly or 1. The vendor agrees to sell, and the purchaser agrees to XV. Sale purchase, for the sum of £
indirectly, or for or by reason of any promise, agreement, grant, bond, covenant, or other assurance, of or for any sum of money, reward, gift, profit, or benefit whatsoever, directly or indirectly, in his own name, or in the name of any other person or persons, take, procure, or accept, the next avoidance of, or presentation to any benefice with cure of souls, dignity, prebend, or living ecclesiastical, and shall be presented or collated thereupon, that then every such presentation or collation, and every admission, institution, investiture, and induction upon the same, shall be utterly void, frustrate, and of no effect in law, and such agreement shall be deemed and taken to be a simoniacal contract; and that it shall and may be lawful to and for the Queen's
and be pre
the next presentation (1), Presentation
Majesty, her heirs and successors, to present or collate unto, or
sell. give or bestow every such benefice, dignity, prebend, and living ecclesiastical, for that one time or turn only; and the person so corruptly taking, procuring, or accepting any such benefice, dignity, prebend, or living, shall thereupon and from thenceforth, be adjudged a disabled person in law to have and enjoy the same benefico, dignity, prebend, or living ecclesiastical, and shall also be subject to any punishment, pain or penalty, limited, prescribed, or inflicted by the laws ecclesiastical, in like manner as if such corrupt agreement had been made after such benefice, dignity, prebend, or living ecclesiastical had become vacant; any law or statute to the contrary in any wise, notwithstanding."
In the late Serjeant Hill's copy of Sir Wm. Blackstone's Reports, under Barrett v. Glubb, 1053, he says, from the title of the Act, the general opinion has been, as mentioned by De Grey, C. J., in this case, that the statute hath disabled every clergyman from purchasing the next presentation of any church preferment; but it is observable, that the purview of the Act does not extend to a purchase by a clergyman, unless he or some other for whom he purchased it, be presented or collated thereupon; and on the other hand, though the purchaser was a layman, yet if he afterwards took orders, and was presented or collated to the living, &c., the next presentation of which he had purchased, the case would be within the purview.
But it appears by the following opinion of the learned But clergyMr. Fearne, that the purchase of an advowson in fee by a clergy- men may purman, and a presentation of himself upon the death of the chase the adincumbent, is not within the statute: "I cannot say I see any be presented thing to impeach the legality of the purchase by A. B. of the on the next perpetuity of the advowson, or his being presented on the next avoidance. avoidance, by a trustee of his own, to whom he shall have conveyed the advowson previous to such avoidance. The 12th Ann. c. 12 (13th Ann. c. 11, Rev. Stat.), prohibits a clergyman's purchasing the next avoidance, or presentation to any benefice for himself; but I do not apprehend that statute at all affects the case of a purchase of the perpetuity of the advowson, or affects the right of presentation in that case; and, consequently, it appears to me, that if A. B., by deed, grants the advowson to, and to the use of some person and his heirs, who, by another deed of even date, declares the conveyance to be in trust for the said A. B. and his heirs, the said A. B. may afterwards, upon the happening of an avoidance, be legally presented by his said trustee :” Fearne's Posth. Works, 409. This view is consistent with the generally received opinion of the profession upon the subject, and, it is conceived, with the sound construction of the statute; for it seems to be impossible, without a manifest departure from the strictness of construction which is always given to a penal statute, to treat the words “next avoidance or presentation,” as extending to an advowson. (6) Where a person purchased the next presentation to a Purchase of
XV. Sale of and to the rectory and parish church of
in the of Next
county of -, and in the diocese of Presentation to Parsonage. 2. The vendor will deliver to the purchaser within To deliver
days after the date hereof, an abstract of the title of the said abstract.
vendor, to grant the next presentation of and to the said rectory and parish church [continue, ut ante, p. 463].
3, 4. [Delivery of requisitions. Requisitions insisted on to
entitle vendor to rescind, ante, pp. 403, 404.] To execute 5. [Completion of purchase, ante, p. 463; and continue.] conveyance at purchaser's On payment as aforesaid of the said sum of £
the vendor, and all other necessary parties, if any, shall execute a proper assurance of the next presentation to the said rectory and parish church unto the purchaser, or as he shall direct (c). The assurance shall be prepared by, &o. [ut ante, p. 405).
tation, with benefico, the church being then full, with an intention to present intention to a particular person, a subsequent presentation of that person was present a cer- formerly deomod simony ; but it is now a universal practice to not rimony,
purchaso the next presentation to a living, the church being full ; it socms. and there is no modern instance where presentation under such
circumstances has been questioned: 3 Cru. Dig. 33, 2nd ed. See Fox v. Bishop of Chester, 3 Bligh, N. S. 123; 1 Dow. & Cl. 416 ; and seo the notes on this case in 1 Tud. L. C. 190. See
further, as to simony, infra, tit. Bond. Next proson
(c) The right of presentation on the next avoidance is part of tation when tho advowson, and, while the church remains full, devolves with Boparated is a it on the heir; but if the right to present for the next turn is chattel.
separated from the advowson, it is a chattel and goes to the exocutor: Smithley v. Chomely, Dyer, 135 a.; Wentw. Offi. Ex. pp. 130 n.; 131, 14th ed. ; 13 Vin. Abr. 84, Faits, M. A., pl. 24; 7 Bligh, 256 ; see also Williams on Executors, 676.
A next presentation is chargeable with legacy duty. Nature of the Immediately upon the happening of a yacancy, the right of right to pro- nomination in case of a presentative advowson) becomes a sent after a
distinct right, in the nature of a chattel, separate from the vacancy. It
advowson, in the same manner as rent due is distinct from the exocutor. rent-charge in fee in respect of which it became due: Alston v.
Atlay, 2 Nev. & P. 492. It is a profit, which becomes due the moment it is exercisable. In some cases this interest is called "a chose en action :" Leach v. Babington, Cr. El. 811; in some, a "chattel," as in Fane and the Archb. of Canterbury's case, 4 Leon. 109. In others, as Fitz. N. B. Quare impedit, 34, N.; and 3 Keble, 152, “a chattel vested; a "personal chattel :" Vin. Abr. Executor, Z. 2, pl. 4, n.; a chattel vested and severed from the manor" (in case of an advowson appendant), Fitzh. N. B. 33, P. In one it is called "a personal thing annexed to the person of him who was patron in expectancy at the time of the vacancy;" also, "a thing in right, power, and authority;" and also " a chose en action, and, in effect, the fruit and execution of the advowson, and not any advowson,"
goes to tho
6. The vendor shall, at his own charges, on the execution XV. Sale of the said conveyance, deliver to the purchaser true and Presentation attested copies of the several title deeds, &c. [ut ante, p. 463]. to Parsonage.
To deliver by six justices, in Stephens v. Wall, Dyer, 283 a. In 3 Leon. attested co256, a power to present, and an authority annexed to the pies; and person. In Digby v. Fitch, Brownl. & Goldesb. 167, Justice covenant to Warburton said — The presentment is the possession in a Quare produce deed. impedit, as in rent the receiving, and in common, the taking of the profits." In Brooksby v. Wickham, 1 Leon. 167, it is also compared to rent, and this
analogy will be found to be the most perfect. The advowson is the estate which descends, and may be conveyed, limited, and escheats as such. The presentation is the mode of enjoyment, the profit or rent of the estate, and, like the rent or profit, belongs to the owner of the estate, at the time it accrues, in the nature of a personal chattel, distinct and severed from the inheritance; it belongs to him not as owner, but as an individual: Per Parke, J., Mirehouse v. Rennell, 7 Bligh, at p. 277. Thus in an Forfeiture of old case, it is laid down, that if an advowson comes to the Queen advowson. for forfeiture by outlawry, and then the church becomes void, and the Queen presents, and then the outlawry is reversed for error, yet the Queen shall enjoy the presentment, because it came to the Queen as a profit of the advowson; but if the church be void at the time of the outlawry, and the presentment be forfeited as a chattel principal and distinct, and then the outlawry is reversed, the party shall have restitution of the presentment: Beverley and Cornwall's case, Moore, 269.
So a lessee of an advowson Right of premay present, after his term has expired, to a vacancy which sentation. occurred during the term. See Fitzh. N. B. Quare impedit, 33, A. ; 2 Roll. Ab. 345; 7 Bligh, 261. And where a married woman is entitled to an advowson, and dies during a vacancy, the presentation is in her husband, although he be not entitled by the curtesy. See Co. Litt. 29 a, 120 a, 388 a. So, if a vicarago happen void, and before the parson present, he is made a bishop, &c., yet he shall present to the vicarage, for it was a chattel vested in him: Fitzh. N. B. 34, N.
Therefore, if a person seised in fee or in tail of a presentative Death of advowson, appendant or in gross, die after an avoidance, and patron during without having presented a successor, the right of presentation vacancy. vests in the executor and not in the heir : Br. Ab. Presentacion, 34; Fitzh. N. B. 33 ; Co. Litt. 388 a ; Dy. 283 a; Com Dig. Esglise (H. 2); The Queen, Fane, and Archbishop of Canterbury's case, 4 Leon. 109; Repington v. Governor of Tamworth School, 2 Wils. 150. But where the patron in fee is himself the incumbent Where patron and dies, as the titles of the heir and executor accrue at the same is incumbent. moment, the “elder” title of the heir is preferred: Holt v. Bishop of Winchester, 3 Lev. 47; 7 B. & Cr. 147.
As the heir of a donative patron is not affected by the law of In the case of lapse, nor compellable at common law to appoint to a vacancy, a donative, a and may take the profits during the vacancy (ante, p. 459), a void turn goos right of appointing the successor in the executor would be clearly adverse to his interest, and this appears to be the foundation of the rule, that if the patron of a donative advowson in feo die during a vacancy, the heir, and not the executor, shall present: