vised. Hob. 323. So the option of the archbishop may be devised. May be deAmbl. 91; 3 Bing. 240; 7 B. & C. 167. But an advowson in gross will not pass under a devise of lands only, although it is said that it will pass under the words "tenements and hereditaments," Westfaling v. Westfaling, 3 Atk. 460; and in a late case By what it was expressly decided that it would pass under the word words. "tenements," alone. Gully v. Bishop of Exeter, 4 Bing. 290. So also under the word "hereditaments" alone, Dyer, 323; 3 Brod. & Bing. 33; Co. Litt. 6 a.; and, although the older cases are conflicting on the point, yet it seems now settled that an advowson in gross, as well as an advowson appendant, lies in tenure. 3 Brod. & Bing. ib. All the authorities agree that an advowson appendant lies in tenure; for though there can be no services of an advowson, yet it is the manor which is the tenement, and not the advowson appendant to it. Ib. Co. Litt. 85 a.; 2 Bl. Com. 16, 17. But a devise of an advowson merely, without the addition of words of inheritance, will not pass more than an estate for life. Pocock v. Bishop of London, 3 Brod. & Bing. 27; nor will the words "perpetual" advowson carry the devise further, or make it enure beyond an estate for life. Ib. 1 Price, 353; 1 B. § Ad. 518; nor will an advowson pass in a grant from the crown without special words. Hob. 127, and vid. St. John v. Bishop of Winchester, 2 W. Bl. 930. An advowson appendant may be conveyed by any mode which will pass the manor of which it is a member. Hob. 127; 1 Leon, 208. And without the words "with the appurtenances." Ib. Co. Litt. 307 a. An advowson in gross, being an incorporeal hereditament, Conveydoes not pass by livery, but may be granted by deed, or a ance of. common recovery suffered of it. 2 Wils. 116; Co. Litt. 332 a, 335 b. So also the next, or any number of future presentations may be granted or conveyed, Co. Litt. 249 a; Plowd. 150; Cro. Eliz. 164; Hob. 322. But a demise of a manor, cum pertinentiis, for years, will not pass an advowson to a lessee; for a spiritual benefice cannot be granted for years or at will. Com. Dig. Adv. C. 1. And it seems that a grant of an advowson, except the next presentation, though made during a vacancy, is good. 2 Taunt. 69. The grant of a manor, with all advowsons, &c. thereunto attached, does not include an advowson once severed, though it was appendant to the manor three hundred years since. 1 Com. Rep. 360. Where the grantee of the next avoidance is evicted by a higher title, as by statute, he loses his right to present; or where the grantor makes a second grant of the same presentation, such second grant will be inoperative. Co. Litt. 378 b. But where a man granted the third presentation, his wife being Convey ance of. Restraints on alienation. By persons holding by spiritual titles. Of a vacant turn. entitled to it as part of her dower, the grantee will have the This power of aliening advowsons and avoidances is however, to be understood with this limitation. That it extends not to ecclesiastical persons of any kind who are seised in right of their churches, nor to masters and fellows of colleges, nor to guardians of hospitals, seised in right of their houses, all these being restrained; the bishops, by 1 Eliz. c. 19, and the rest by 13 Eliz. c. 10, from making any grants, but of things corporeal of which an annual profit or rent may be had. Cro. Eliz. 410. And therefore, such grants, however confirmed, are void against the successor, though good against the grantors themselves. Gibs. 797; 3 Bing. 269; Cro. Elix. 207, 690; 7 B. & C. 174. There is also another restraint which the law, through dread of simony, imposes on the alienation of advowsons and next presentations; which is this, that the right to present to a turn actually void, can under no circumstances be aliened by a common person. The death of an incumbent and consequent vacancy of a living do not prevent the patron from conveying away the inheritance of the advowson, nor from granting or assigning any future presentation or presentations, but the right of presenting to the then vacant benefice, which by the death of the incumbent is reduced into the possession of the patron, cannot be sold or disposed of. It has been said, that the turn itself being a mere spiritual thing annexed to the person of the patron is not grantable, and that it is a thing in power and authority, in action and effect, the execution of the advowson and not the advowson itself. Gibs. 797. In the Bishop of Lincoln v. Wolferstan, 3 Burr. 1514, Lord Mansfield and Wilmot, J. disclaim this fictitious reason why a grant of a fallen presentation is not good, and state that the true reasons are public utility and the better to guard against simony, but a benefice voidable only may be sold. 6 Nev. & Man. 686, vide" Avoidance." It is said, however, that a grant of a next avoidance during vacancy may be good, though it will not affect the turn then actually vacant, but may ut res magis valeat quam pereat, operate on the avoidance next after the church is filled. Jenk. 236, pl. 1; And. 15. So the grant of the advowson during vacancy is good, for as the vacant turn is disannexed from the advowson, the grant does not operate on it. Dyer, 129 b; Moore, 89. If a next avoidance be granted to A. and B., A. may release to B. before avoidance; Cro. Eliz. 600; but after avoidance such release is void. Moore, 467. But if a man being both seised of the advowson and incumbent of the church, devise the next presentation to his executor, it is good, though the devise does not take effect till the avoidance happens. Cro. Jac. 371; Com. Dig. Adv. C. 2; 3 Lev. 47. The only distinction between a church which is full and one that is void, is, that in the one case it is not simoniacal to sell it, and the other it is, 7 B. & C. 151. But these consequences do not attach to grants by the crown, Grants by for the grant of a void turn by the crown, if by express words, the crown. is good. Hob. 140; Cro. Eliz. 173; 2 Taunt. 69. But by the general grant by the crown of a manor, to which an advowson is appendant, a void turn does not pass. Cro. Jac. 171; 3 Leon. 196; Dyer, 300 a. By his prerogative the king has the presentation upon the promotion of the incumbent to a bishoprick. Cro. Jac. 691, vide post "Prerogative presentations." In the case of a right of presentation in the crown, obtained by lapse if the patron present, the king may, notwithstanding, present during the life of that presentee, but if he die the king's title is lost. Cro. Jac. 216; Cro. Eliz. 44. But if the church again becomes void by the act of such presentee, it would be otherwise. Cro. Eliz. 119. A grant of a rectory by the crown containing an exception of all churches and vicarages, a perpetual curacy passes, not being within the exception, 1 H. Bl. 416. By 12 Ann. st. 2, c. 12, the clergy are prohibited from, Clergymen. directly or indirectly, either in their own name or in that of any other person, taking, procuring, or accepting the next avoidance of a presentation to any benefice, with cure of souls, dignity, prebend, or living ecclesiastical, for any promise, agreement, grant, bond, covenant, or other assurance, or for any sum of money, reward, gift, profit or benefit whatsoever. A devise of an advowson to a college is good by way of cha- Mortmain. ritable use, and that not merely in equity by way of appoint Right of presentation how exercised. Coparcen. ers. ment to uses, but also at law; for the stat. 43 Eliz. c. 4, was, pro tanto, a repeal of the exception in the stat. 35 H. 8, c. 5, and therefore a devise to a college in either of the universities is good, and will convey to them a legal title. Having seen in the above cases how a person, who has the sole and undivided interest in an advowson, can convey, assign, or otherwise aliene the whole, or any part, share, or turn of it; the next inquiry will be into the relative rights of presentation where parties are jointly interested in an advowson. Thus, in the case of coparceners or co-heiresses, if an advowson descends in coparcenary, the first presentation of mere right belongs to the eldest sister. Thrale v. Bishop of London, 1 H. Bl. 412. The second turn goes to the second sister, and so on successively to the rest, or their representatives, according to their seniority, for the subsequent turns. Co. Litt. 166 b, 186 b. It is intimated by some, that the right of the eldest sister results from the disagreement to concur in her presentment by the other coparceners; Co. Litt. 166; Ib. 186 b; 2 Inst. 356; 1 H. Bl. 402; the disagreement amounting to a constructive partition of the advowson: but the principle of law is founded rather on their non-agreement than on their disagreement, and in a right so circumstanced it is a legal presumption that they cannot agree, for the concurrence of the others in the presentment of the eldest sister would only operate to their own prejudice, the eldest, therefore, has the first turn pleno jure, and the others in succession. 1 H. Bl. 412, 418; 2 Roll. Ab. 346. The alienee of the eldest sister in turn is always preferred before the younger sister. 1 Ves. 340. The right goes to the issue or assignee of a coparcener, whether by conveyance or by act of law, as tenant by the curtesy. Willes, 662; 1b.; 2 Inst. 350; Co. Litt. 167 b; Moor. 225; Cro. Eliz. 19. If there be a lapse or usurpation it only affects the particular turn. Bro. Qu. Imp. pl. 118; 13 Ed. 1, st. 1, c. 5, s. 5. If any of the coparceners be disturbed by the others or their assigns, quare impedit will lie against them. 1 H. Bl. 418. And now by stat. 7 Ann, c. 18, s. 2, it is enacted, "that if coparceners or joint tenants, or tenants in common, be seised of "any estate of inheritance in the advowson of a church or vicarage, "or other ecclesiastical promotion, and a partition is or shall be "made to present by turns, that thereupon every one shall be "taken and adjudged to be seised of his or her separate part of "the advowson, to present in his or her turn. As if there be two, "and they make such partition, each shall be said to be seised, "the one of the one moiety to present in the first turn, the other "of the other moiety to present in the second turn. In like man"ner if there be three, four, or more, every one shall be said to "be seised of his or her part, that is separately, and to present Right of " in his or her turn." presenta. tion how Coparcen ers. If there be four co-partners of an advowson, and the first daugh- exercised. ter presents to the first avoidance, and the second to the second, and on the third avoidance a stranger usurp on the third daughter and present by usurpation, and such presentee be instituted, inducted, and die, the fourth shall not lose her turn by the third suffering a stranger to present by usurpation, but shall present at her turn. Bro. Ab. Qu. Imp. pl. 118, recognised in Barker v. Lomax, Willes, 664; 1 H. Bl. 418; 7 Sim. 757. But if A. and B. have a right to present by turns, and A. whose turn it was let the living lapse to the bishop, who collated a parson to it, and upon his death B. presented, held that he had a good right, for that A., by letting the living lapse to the bishop, had lost his turn, but that should not prejudice B. Bro. Ab. Presentations, 26; Willes, 664; 1 H. Bl. 418. But if when A. and B. coparceners do not agree, C., a stranger, implead A. only by quare impedit on a vacancy, and recover, it is a bar to a quare impedit, brought by B. against C. for that turn, though not for the next turn. Willes, 659; 1 H. Bl. 418. Though coparceners may make composition to present by Partition. turns, this being no more than the law appoints, the inheritance is not divided. Co. Litt. 18 a. In case of coparceners, they being privies in blood, the partition may be by parol, but between tenants in common it must be by deed. Dyer, 29; Wats. c. 8; Bishop of Salisbury v. Phillips, Lord Raym. 537. The cases of joint tenants and tenants in common is somewhat different from that of coparceners; because, as an advowson is an entire thing unless they agree in presentation none can be made, and a lapse will be incurred. Co. Litt. 186 b; 2 Atk. 482; 1 Ves. 413, 415. But if one present, this shall not put the other out of possession, because of the unity of title, consequently, if the joint tenant or tenant in common, who presented die, this presentment of his shall serve for a title in a suit by the survivor. Co. Litt. 186 b, 197 b, 243 a; 2 Inst. 365. So also it seems that a recovery against one joint tenant or tenant in common will be a bar for that presentation to all. 2 Roll. Ab. 372, pl. 1; 1 H. Bl. 417. But joint tenants may agree to present in turn, which will amount to a partition, and each of the parties may maintain quare impedit against a stranger, it cannot make two advowsons, but it may create distinct rights. 1 Ld. Raym. 535; Carth. 505; 12 Mod. 321; Holt, 52. An agreement between joint tenants that they should be tenants in common, and that each should present, amounts to a severance and release. 1 Salk, 43. If one tenant in common Joint ten ants and tenants in common. |