This section is from the book "Dart's Treatise On The Law And Practice Relating To Vendors And Purchasers Of Real Estate", by J. Henry Dart . Also available from Amazon: A treatise on the law and practice relating to vendors and purchasers of real estate.
Of pews; in chancel.
(s) Curling v. Flight, (1848) 2 Ph. 613; see 6 Ha. 41; 17 L. J. Ch. 79.
(t) A faculty may be presumed upon evidence of exclusive possession and repairs extending over a long period: Phillips v. Halliday, 1891, A. C. 228; 61 L. J. Q. B. 210.
(u) See, on the right to pews, Carson, R. P. Stats. 3rd ed. 114 - 119; and Pepper v. Barnard, (1843) 12 L. J. Q. B. 361; 7 Jur. 1128; Knapp v. St. Mary, Willesden, (1851) 15 Jur. 473; 17 L. T. (O. S.) 191. S. 2 of the Prescription Act does not apply to pews in a parish church. As to what evidence is necessary to prove a prescriptive title in such a case, see Crisp v. Martin, (1876) 2 P. D. 15; Phillips v. Halliday, sup.; Proud v. Price, (1894) 63 L. J. Q. B. 61; 69 L. T. 664; Stileman-gibbard v. Wilkinson, 1897, 1 Q. B. 749; 66 L. J. Q. B. 215.
(x) Ayliffe's Parergon, 486; Degge's Parson's Counsellor, 213 (173), 7th ed. 1820; Watson's Clergyman's Law, 388, 4th ed. 1747; Nelson's
Before the V. & P. Act, 1874, the rule was that upon a sale of freeholds, or (it is conceived) of copyholds or renewable leaseholds, except where the first lease was of more recent date, the title must go back at least sixty years (y); but, by that Act, forty years was substituted for sixty, and by th L. P. Act, 1925, s. 44, thirty years has been substituted for forty;.
Title to land must extend over thirty years.
The title to an advowson must be carried back at least one hundred years; and the abstract should be accompanied by a list of the presentations during the period over which it extends (z), and after 1898 the dates of institutions or admissions. Sect. 44 (1) of the L. P. Act, 1925, which substitutes thirty years for forty years as the period of commencement of title which a purchaser of land may require, provides that earlier title than thirty years may be required in cases similar to those in which earlier title than forty years might immediately before the commencement of the Act be required. The rule entitling the purchaser of an advowson to one hundred years' title is the same, it seems, whether the advowson is sold as in gross or appendant; for though a thirty years' title might be sufficient, if it could be shown that the advowson was in fact appendant to the principal estate, yet the purchaser, it may be contended, has a right to see that no destruction of the appendancy by severance of the advowson is disclosed by the earlier title (a). The word "living" is sufficient to pass the advowson;, though it may be restrained by the context to the next presentation (b).
One hundred years on sale of advowson.
Rights of the Clergy, 494; Prideaux's Directions to Churchwardens, 4th ed. 1716, 74, 75; Whitehead's Church Law, 2nd ed. 1899; see Brownl. & G. 45, dictum per Lord Coke; Clifford v. Wicks, (1818) 1 B. & Ald. 498; Morgan v. Curtis, (1829) 3 Man. & R. 389; 7 L. J. (O. S.) K. B. 95; Phillimore, p. 1424 et seq., as to seats in a church generally. A pew in a chancel differs from one in the body of the church, since it may belong to a person in respect of the ownership of a house; and even a tenant of the house may acquire a permissive right to it, so as to bring an action for perturbation: Parker v. Leach, (1866) L. R. 1 P. C. 312, 327; 36 L. J. P. C. 26. As'to property in a chancel generally, see Chapman v. Jones, (1869) L. R. 4 Ex. 273; 38 L. J. Ex. 169; Arbuthnot v. Duke of Norfolk, (1860) 5 C. P. D. 390. As to the lay rector's right to the chief seat in the chancel, see Stileman-gibbird v. Wilkinson, 1897, 1 Q. B. 749; and see Carson, 3rd ed. pp. 114 - 117.
(y) Cooper v. Emery, (1844) 1 Ph. 388; 13 L. J. N. S. Ch. 275; Hodgkinson v. Cooper, (1846) 9 Beav. 304; 15 L. J. Ch. 160; Finch v. Shaw, (1854) 19 Beav. 500; 2 W. R. 655; see Moulton v. Edmonds, (1850) 1 D. F. & J. 246; 29 L. J. Ch. 181.
(z) Sug. 14th ed. 367.
Upon the sale of a reversionary interest, whatever its antiquity, the abstract must show its creation; and also that the estate has been enjoyed in possession conformably with the instrument which created the reversionary interest.
Must show creation of reversionary interest on sale thereof.
Upon the sale of a term of years, it is sufficient if the abstract show the creation of the term and a thirty years' title to the possession, omitting the intermediate title (c); and the vendor is bound to produce the lease under which the property is held, if there is nothing in the contract to prevent the purchaser from requiring its production.
Must show creation and last thirty years' title of old term.
Upon the sale of tithes or tithe rent-charge held as a lay property, or of any other property held (as such tithes generally (d) are) under a grant from the Crown, the abstract should set forth the original grant, and then, omitting intermediate instruments, take up the history so as to show a good thirty years' title (e): so, where the tithe rent-charges are considered to have been merged by the tithe-owner under the Tithe Acts, and the estate is sold as tithe-free, the early title to the tithe rent-charges must be similarly deduced (f), except in cases where the merger purports to have been effected by an instrument made with the consent of the Commissioners or Board of Agriculture since the passing of the Tithe Act, 1846 (g).
On sale of tithes or other property derived from the Crown must. show original grant.
(a) As to the very considerable restrictions which have been imposed by statute on the sale of advowsons, see the Benefices Act, 1898, s. 1. and the Amending Measure of 1923. These restrictions are not affected by the L. P. Act, 1925; see s. 201 (2).
(b) Webb v. Byng, (1856) 2 K. & J. 669; aff. (1862) 10 H. L. C. 171.
(c) Frend v. Buckley, (1870) L. El. 5 Q. B. 213; 39 L. J. Q. B. 90; Williams v. Spargo, (1893) W. N. 100.
(d) Tithes may be held as lay property, e.g., by virtue of sales for redemption of land tax.
(e) Pickering v. Lord Sherborne, (1838) 1 Crawf. & Dix. 254; Sag. 14th ed. 367.
(f) Tithe Act, 1836, s. 71; Tithe Act, 1838; Tithe Act, 1839; and Tithe Act, 1846, ss. 18, 19.
If the purchaser has agreed not to call for the legal estate (gg), this will not shorten the period over which a title must be shown to the equitable estate; and it must also be shown that no adverse use can be made of the legal estate.
Rules not altered by the estate being merely equitable.