Agreements fur resignation.
History of advowsons of rectories.
(m) Stat. 9 Geo. IV. c. 94. (n) The act reads one or two, but this is clearly an error.
(o) Stat. 9 Geo. IV. c. 94, s. 4.
(p) Sect. 5.
(q) Ante, pp. 115, 308.
Origin of advowsons in gross.
Conveyance of an advowson.
(r) Ante, p. 314.
(s) 2 Black. Com. 22; Litt. s. 617.
The advowsons of rectories were not unfrequently granted by the lords of manors in ancient times to monastic houses, bishoprics, and other spiritual corporations (x). When this was the case the spiritual patrons thus constituted considered themselves to be the most fit persons to be rectors of the parish, so far as the receipt of the tithes and other profits of the rectory was concerned; and they left the duties of the cure to be performed by some poor priest as their vicar or deputy. In order to remedy the abuses thus occasioned, it was provided by statutes of Richard II. (y) and Henry IV. (z), that the vicar should be sufficiently endowed wherever any rectory was thus appropriated. This was the origin of vicarages, the advowsons of which belonged in the first instance to the spiritual owners of the appropriate rectories as appendant to such rectories (a); but many of these advowsons have since, by severance from the rectories, been turned into advowsons in gross. And such advowsons of vicarages can only be conveyed by deed, like advowsons of rectories under similar circumstances.
The sale of an advowson will not include the right to the next presentation, unless made when the church is full; that is, before the right to present has actually arisen by the death, resignation or deprivation of the former incumbent (b). For the present right to present is regarded as a personal duty of too sacred a character to be bought and sold; and the sale of such a right would fall within the offence of simony, - so called from Simon Magus, - an offence which consists in the buying or selling of holy orders, or of an ecclesiastical benefice (c). But, before a vacancy has actually occurred, the next presentation, or right of presenting at the next vacancy, may be sold, either together with, or independently of, the future presentations of which the advowson is composed (d), and this is frequently done. No spiritual person, however, may sell or assign any patronage or presentation belonging to him by virtue of any dignity or spiritual office held by him, any such sale and assignment being void (e). And a clergyman is prohibited by a statute of Anne (f) from procuring preferment for himself by the purchase of a next presentation; but this statute is not usually considered as preventing the purchase by a clergyman of an entire advowson with a view of presenting himself to the living. When the next presentation is sold, independently of the rest of the advowson, it is considered as mere personal property, and will devolve, in case of the decease of the purchaser before he has exercised his right, on his executors, and cannot descend to his heir at law (g). The advowson itself, it need scarcely be remarked, will descend, on the decease of its owner intestate, to his heir. The law attributes to it, in - common with other separate incorporeal hereditaments, as nearly as possible the same incidents as appertain to the corporeal property to which it once belonged.
History of advowsons of vicarages.
The church must be full.
(t) Perk. s. 116; Co. Litt. 190 b, 307 a. See Attorney- General v. Sitwell, 1 You. & Coll. 559; Hooper v. Harrison, 2 Kay & John. 86.
(u) Co. Litt. 332 a, 335 b.
(x) 1 Black. Com. 384. (y) Stat. 15 Rich. II. c. 6. (z) Stat. 4 Hen. IV. c. 12. (a) Dyer, 351 a. (b) Alston v. Atlay, 7 Adol. & Ellis, 289.
Next presentation is personal property.
(c) Bac. Abr. tit. Simony; stats. 31 Eliz. c. 6; 28 & 29 Vict. c. 122, ss. 2, 5, 9.
(d) Fox v. Bishop of Chester, 6 Bing. 1.
(e) Stat. 3 & 4 Vict c. 113, s.42.
(f) Stat. 12 Anne, stat. 2, c. 12, s. 2.
(g) See Bennett v. Bishop of Lincoln, 7 Barn. & Cres. 113; 8 Bing. 490.
Tithes are another species of separate incorporeal hereditaments, also of an ecclesiastical or spiritual kind. In the early ages of our history, and indeed down to the time of Henry VIII., tithes were exclusively the property of the church, belonging to the incumbent of the parish, unless they had got into the hands of some monastery, or community of spiritual persons. They never belonged to any layman until the time of the dissolution of monasteries by King Henry VIII. But this monarch, having procured acts of parliament for the dissolution of the monasteries and the confiscation of their property (h), also obtained by the same acts (i) a confirmation of all grants made or to be made by his letters-patent of any of the property of the monasteries. These grants were many of them made to laymen, and comprised the tithes which the monasteries had possessed, as well as their landed estates. Tithes thus came for the first time into lay hands as a new species of property. As the grants had been made to the grantees and their heirs, or to them and the heirs of their bodies, or for term of life or years (k), the tithes so granted evidently became hereditaments in which estates might be holden, similar to those already known to be held in other hereditaments of a separate incorporeal nature; and a necessity at once arose of a law to determine the nature and attributes of these estates. How such estates might be conveyed, and how they should descend, were questions of great importance. The former question was soon settled by an act of parliament (l), which directed recoveries, fines, and conveyances to be made of tithes in lay hands, according as had been used for assurances of lands, tenements, and other hereditaments. And the analogy of the descent of estates in other hereditaments was followed in tracing the descent of estates of inheritance in tithes. But as tithes, being of a spiritual origin, are a distinct inheritance from the lands out of which they issue, they have not been considered as affected by any particular custom of descent, such as that of gavelkind or borough-English, to which the lands may be subject; but in all cases they descend according to the course of the common law(m). From this separate nature of the land and tithe, it also follows that the ownership of both by the same person will not have the effect of merging the one in the other. They exist as distinct subjects of property; and a conveyance of the land with its appurtenances, without mentioning the tithes, will leave the tithes in the hands of the conveying party (n). The acts which have been passed for the commutation of tithes (o) affect tithes in the hands of laymen, as well as those possessed by the clergy. Under these acts a rent charge, varying with the price of corn, has been substituted all over the kingdom for the inconvenient system of taking tithes in kind; and in these acts provision has been properly made for the merger of the tithes or rent charge in the land, by which the tithes or rent charge may at once be made to cease, whenever both land and tithes or rent charge belong to the same person (p).