This section is from the book "Real Property, An Introductory Explanation Of The Law Relating To Land", by Alfred F Topham. Also available from Amazon: The New Law Of Property.
I. Advowson of a Rectory. - An advowson of a rectory is the right to appoint a rector of a parish who will receive the tithes and perform the duties of the church. If a lord of a manor built a church,
(e) Wheeldon v. Burrows (1878), 12 Ch. D., p. 31,
Eights over Land in the Possession of others 179 he would usually grant a piece of land to the church. The lord thereupon had the right to appoint a rector of the church, and the tithes or tenth part of the produce of all lands in the parish became payable to the rector.
It frequently happened that the lord of the manor on his deathbed was persuaded to make various gifts to the monasteries and other ecclesiastical corporations, and the advowson of the rectory was frequently given to a neighbouring monastery.
The monastery thereupon appointed itself to be rector, so as to receive the tithes and the profits of the glebe land, and appointed some member of the monastery to look after the cure of souls: he was called a vicarius (or vicar), because he performed the services in place of the rector.
Henry VIII. abolished the monasteries, and granted their lands and rights to lay persons. Thus, at the present day, the rector is often a lay person, who receives the tithes and has the right of appointing a vicar.
An advowson of a vicarage is therefore the right to appoint a vicarius or vicar when the rectory has become vested in a lay person, or any person or corporation who does not perform the duties of the clergyman.
Sales and Transfers of Advowsons. - Advowsons can be transferred or sold; but not if the church is empty, i.e. if there is at the time no incumbent.
The sale of an immediate right to appoint a clergyman to a vacant benefice was considered to be a sin, as making money out of a sacred duty. The offence is called "simony."
But a sale of the perpetual right to appoint clergymen from time to time is allowed, provided the clergyman then holding the benefice is still alive.
At one time this rule led to bargaining and selling over the deathbed of the incumbent; for the sale was good so long as he was alive, even if he were in extremis. This is now changed.
By the Benefices Act, 1898 (f), the Bishop may refuse to institute the person appointed if a sale takes place within one year before a vacancy occurs, unless it can be proved that the sale was not made in view of a probable vacancy (g), and no transfer can be made within 12 months after an institution of a clergyman, and every transfer must be registered (h).
A clergyman cannot buy for himself the next presentation to a living.
This rule used to be evaded as follows. A clergyman would buy for himself a life estate in the advowson, and would appoint himself so soon as the church became empty; he would then hold it until his death. This was prevented by the same act of 1898, and now -
A person who sells an advowson must sell his whole estate in the advowson (i).
The appointment of a clergyman to a living is not complete until he has been instituted by the Bishop.
Before 1898 some advowsons were "donative," in which case the appointment alone was sufficient without any institution; but now all advowsons are "presentative," i.e. an institution by the Bishop is necessary (k).
The owner of an advowson cannot appoint a clergyman to a living for a certain time or subject to any agreement to retire when called upon to do so except -
(i.) The clergyman may agree to retire in favour of any one named person;
(ii.) or in favour of one of two named persons, both of whom are nearly related by blood or marriage to the appointor (l), and no such agreement can now be made on a transfer of the
(f) 61 & 62 Vict. c. 48. (g) S. 2, (1) a.
(h) S. 1 (1) a. (i) S. 1 (1) b. (k) S. 12.
(l) 9 Geo. IV. c. 94, and see William's "Real Property," p. 430, 431
Eights over Land in the Possession of others 181 advowson (m). An advowson cannot be sold by public auction except in conjunction with a manor or at least 100 acres of land belonging to the same person (n).
Tithes. - In early times every landholder was under a voluntary duty to pay one tenth of the produce of the land to the church. This duty in time became legally binding.
The tithes payable to a rector were called "great tithe," those payable to a vicar were "small tithe."
Originally this payment was made " in kind," i.e. every tenth shock of corn and every tenth egg, etc., were paid over; but agreements were frequently made for commuting those payments for more definite payments in kind; e.g. one fifth of the hay instead of one tenth of many other things. This was called a "modus decimandi," or, more shortly, a "modus."
Now by the Tithe Commutation Acts (o) tithe is commuted in all cases for a fixed annual sum of money varying with the average price of corn during the previous seven years, and called a "tithe rent charge" (p).
The tithe rent-charge has now in many cases been redeemed by the payment of a lump sum, but otherwise is still payable out of the produce of all land which was formerly titheable.
The owner of the land is not under any personal liability to pay the tithe-rent charge: the remedy of the tithe-owner is by distraint of any of the produce of the land: he can also in some cases take possession of the land, or obtain the appointment of a receiver. The right to tithe may be bought and sold, and is conveyed like other real estate. The owner of the great tithe is liable for the repair of the chancel of the church.
(m) S. 1 (3).
(n) S. 1 (2).
(o) See William's " Real Property," p. 437, note (p).
(p) A rent-charge commuting a modus does not vary.