Benefices Act, 1898.

(z) Greenwood v. London, 5

Taunt. 727.

(a) Fox v. Chester, 3 Bli. N. S. 123.

(b) Stat. 12 Anne, st. 2, c. 12, 8. 2.

(c) Stat. 61 & 62 Vict. c. 48, s. 1 (1).

(d). Benefices Rules, 1898, W. N. 7th Jan. 1899.

(e) Sect. 1 (6).

(f) Sect. 1 (7).

The Act also invalidates (g) any agreement for any exercise of a right of patronage of a benefice in favour or on the nomination of any particular person, and any agreement on the transfer of a right of patronage of a benefice for the resignation of a benefice in favour of any person. Any conveyance either of an advowson or a next presentation must now conform with the requirements of this Act or it will be invalid. Thus it appears that the conveyance of an advowson by way of family settlement must be registered and must in other respects conform with the provisions of the Act: whilst a conveyance of an advowson by way of marriage settlement remains exempt from the requirements of the Act as to transfer, including the necessity of regis- , tration. And it seems that these rules apply equally to the transfer of an advowson appendant or in gross. The second requirement imposed by the Act appears to invalidate sales or grants by the owners of an advowson (h) of the next presentation or any less estate or interest than the whole fee simple in the advowson; except only by way of reservation or limitation in a family settlement of a life interest to the settlor, or of reservation in a mortgage of an equity of redemption. And it is to be noted that, even in a family settlement, only the limitation of a life interest to the settlor is allowed; so that the limitation in such a settlement of an advowson by a settlor entitled in fee simple to the use of himself in tail or for any term of years appears to be invalid. If, however, the grantor transfer the whole of his own estate in the advowson by way of family settlement, the limitation of estates for years, for life, or in tail, with an ultimate remainder in fee simple to other persons than himself, does not appear to offend against the statute. But where the ultimate remainder in fee simple is limited to the use of the grantor, the Act seems to be infringed and the transfer to be invalid. And this seems to be the case where a life interest is reserved to the grantor, with intermediate limitations to others and an ultimate remainder in fee to himself. The Act also provides (i) that it shall not be lawful to offer for sale by public auction any right of patronage, except in the case of an advowson to be sold in conjunction with any manor, or with an estate in land of not less than one hundred acres situate in the parish in which the advowson is situate, or in an adjoining parish and belonging to the same owner as the advowson.

(g) Sect. 1 (3). By sect. 2 (la), a bishop may refuse to institute or admit a presentee to a benefice if at the date of the vacancy not more than one year has elapsed since a transfer as defined by the first section of this Act of the right of patronage of the benefice, unless it be proved that the transfer was not effected in view of the probability of a vacancy within such year.

(h) The right of next presentation obviously remains transferable where it constitutes the whole interest of the transferor.

Prohibition as to sales of advowsons by auction.

Upon the sale of an advowson when the church is full, the legal right to present on the next vacancy remains with the vendor until the sale be completed by conveyance (k); but in equity the right of presentation belongs to the purchaser as from the date of the contract for sale, subject to the condition of his accepting the title. If, therefore, a vacancy occur before completion, the purchaser, having first accepted the title, may require the vendor to present to the living such person as the purchaser may select (l). But if the living became vacant by the promotion of the incumbent to the bishopric of a see in England, the Crown is entitled to present for that turn (m).

Right of presentation pending' completion of sale of an advowson.

(i) Sect. 1 (2), whereby also any person offering any right of patronage for sale by auction in contravention thereof, or bidding at any such sale, is rendered liable on summary conviction to a fine not exceeding 100/.

(k) 17 Vin. Abr. Presentation, 319, pl. 11.

(l) Fox v. Chester, 3 Bli. N. S.

123, 155 - 157: Nicholson v.

Knapp, 9 Sim. 326; Dowling v. maguire, LI. & G. t. Plunk. 1, 30; Greenslade v. Dare, 17 Beav.

When an advowson or a next presentation was sold in expectation of an early avoidance of the living, various devices were resorted to in order to protect the purchaser in case the expected avoidance did not take place. Thus it was sometimes provided in the contract for sale that the purchase money should on completion be deposited with trustees to be paid over to the vendor if the vacancy occurred within a specified time, but otherwise to be returned to the purchaser and the advowson to be reconveyed to the vendor (n). Or it was stipulated that the vendor should pay interest on the purchase money from the date fixed for completion until the benefice should become vacant (o); and such a stipulation was held not to be void as simoniacal on the sale of an advowson, where the vendor was not the incumbent (p). Or it was agreed that the vendor should re-purchase the advowson, if the living were not avoided within a certain time. But now, by the Benefices Act, 1898 (q), any agreement on the transfer of a right of patronage of a benefice either (i) for re-transfer of the right, or (ii) for postponing payment of any part of the consideration for the transfer until a vacancy or for more than three months, or (iii) for payment of interest until a vacancy or for more than three months, or (iv) for any payment in respect of the date at which a vacancy occurs, shall be invalid.

Devices formerly used on sale in expectation of a vacancy.

(m) Grocers' Co. v. Archbp. of Canterbury, 3 Wils. K. B. 214, 232, 233; R. v. Eton College, 8 E. & B. 610.

(n) Davidson, Prec. Conv. vol. ii. parti. 30, 35, 4th ed.

(o) Davidson. Prec. Conv. vol. ii. part i. 37, 41, 4th ed.; 1 Key & Elphinstone, Prec. Conv. 632, n., 4th edit.

(p) Sweet v. Meredith, 3 Giff. 610, 8 Jur. N. S. 637.

(q) Stat. 61 & 62 Vict. c. 48, s. 1 (3).