BOOK V. OF BENEFICES AND THINGS INCIDENT CHAPTER I. OF THE MANNER IN WHICH COMPLETE POSSESSION OF A BENEFICE IS TO BE OBTAINED. SECTION 1. Of Advowsons and Presentations. to those in Or the law respecting advowsons and presentations gene- Advowsons rally there is much which appears foreign to the purposes with reference of our present work, and which might seem more proper whose favour to be spoken of in a treatise on incorporeal hereditaments. the right is exAn advowson has been called a reversionary right to be ercised. exercised in favour of another person, which other person must be an ecclesiastic. In the following pages, therefore, it will be endeavoured, so far as possible, to consider this subject only as it affects the clergyman or the party in whose favour the right is exercised. For the many questions that may occur or have occurred between parties claiming to exercise such right, we must refer generally to those works that have treated on incorporeal heredita ments. In the early ages of Christianity the nomination to all Origin of adecclesiastical benefices belonged to the Church. When the vowsons. piety of some lords induced them to build churches upon their estates, and to endow them with glebe lands, or to appropriate the tithes of neighbouring lands to their support, the bishops, from a desire of encouraging such pious undertakings, permitted those lords to appoint whatever clergyman they pleased to officiate in such churches, and receive the emoluments annexed to them, reserving however a power to themselves to judge of the qualifications of those H H 8 who were thus nominated. This practice, which was originally a mere indulgence, became in process of time a right; and all those who had either founded or endowed a church claimed and exercised the exclusive privilege of presenting a clerk to the bishop whenever the church became vacant.b An advowson is therefore a right of presentation to a church or ecclesiastical benefice; the word being derived from advocatio, which signifies in clientelam recipere; for in former times the person to whom this right belonged was called advocatus ecclesiæ, because he was bound to defend and protect both the rights of the church and the incumbent clerks from oppression and violence; hence the right of presentation acquired the name of advowson, and the person possessed of this right was called the patron of the church.c Lord Coke says there may be several patrons and two several incumbents in one church; the one of the one moiety, and the other of the other moiety; and one part, as well of the church as of the town, allotted to the one, and the other part thereof to the other, which is called advocatio medietatis ecclesia.d The right of presentation and that of nomination to a church are sometimes confounded; but they are distinct things. Presentation is the offering a clerk to the bishop, nomination is the offering a clerk to the patron. These rights may exist in different persons at the same time. Thus a person seised of an advowson may grant to A. and his heirs that whenever the church becomes vacant he will present to the bishop such person as A. or his heirs shall nominate. This is a good grant, and the person to whom the right of nomination is thus granted, is, to most purposes, considered as patron of the church. e Where the legal estate in an advowson is vested in trustees, they have the right of presentation in them; but the right of nomination is in the cestui que trust. So in the case of a mortgagee of an advowson, the mortgagee has the right of presentation, but the mortgagor has the right of nomination. Advowsons are either appendant or in gross. The right of presentation, which was originally allowed to the persons who built or endowed a church, became by degrees annexed to the manor on which it was erected, for the endowment was supposed to be parcel of the manor, and held of it; therefore it was natural that the right of pre a 1 Inst. 17 b, 119 b; Wats. 64. b Cruise's Dig. tit. xx. c. 1. e Plowd. 529; Wats. 90. sentation should pass with the manors, from whence the advowson was said to be appendant to the manor, being so closely annexed to it that it passed as incident thereto by a grant of the manor. Where the property of an advowson has been once se- In gross. parated from the manor to which it was appendant by any legal conveyance, it is then called an advowson in gross, and never can be appendant again, except in a few particular cases, which will be mentioned hereafter.f Advowsons are also presentative, collative, and donative. Presentative. An advowson presentative is that which has been already described, namely, where the patron has a right of presentation to the bishop or ordinary, and also to demand of him to institute his clerk, if duly qualified. An advowson collative is where the bishop and patron Collative. are one and the same person. In which case, as the bishop cannot present to himself, he does, by the one act of collation or conferring the benefice, the whole that is done in common cases by both presentation and institution. An advowson donative is where the king, or any subject Advowsons doby his license, founds a church or chapel, and ordains that native. it shall be merely in the gift or disposal of the patron, subject to his visitation only, not to that of the ordinary, and vested absolutely in the clerk, by the patron's deed of donation, without presentation, institution or induction." And this last is said to have been anciently the only way of conferring ecclesiastical benefices in England; the method of institution by the bishop not being established more early than the time of Archbishop Beckett, in the reign of Henry II. And therefore, though Pope Alexander III., in a letter to Beckett, severely inveighs against the prava consuetudo, as he calls it, of investiture conferred by the patron only, this however shows what was then the common usage. Others contend that the claim of the bishops to institution is as old as the first planting of Christianity in this island; and in proof of it they allege a letter from the English nobility to the pope, in the reign of Henry III., recorded by Matthew Paris, which speaks of presentation to the bishop as a thing immemorial. The truth seems to be, that, where the benefice was to be conferred on a mere layman, he was first presented to the bishop, in order to receive ordination, who was at liberty to examine and refuse him: but where the clerk was already in orders, the living was usually vested in him by the sole donation of the patron; till about the middle of the twelfth century, when the pope and his bishops endeaCruise's Dig. tit. xxi. c. 1. g 2 Black. Com. 22. b Ibid. May become presentable. How advowsons aliened. voured to introduce a kind of feodal dominion over ecclesiastical benefices, and in consequence of that began to claim and exercise the right of institution universally, as a species of spiritual investiture.i But advowsons donative are not regarded with any favour by the law, which loves uniformity; and therefore, if the patron of an advowson donative once presents to the ordinary, and allows of the admission and institution of his clerk thereon, he thereby renders his church always presentable, and it will never afterwards be donative. But if a stranger, who has no title, presents a clerk to the ordinary, who is instituted and inducted, this will not render the donative presentable.* If a donative should receive augmentation from Queen Anne's Bounty, which it cannot do without the consent of the patron under his hand and seal, it becomes liable to lapse, and subject to the visitation and jurisdiction of the ordinary as a presentative living.' An advowson appendant may be aliened by any kind of appendant or in conveyance that transfers the manor to which it is appengross may be dant. An advowson in gross may also be aliened; but being an incorporeal hereditament, and not lying in manual occupation, it does not pass by livery, but must always have been granted by deed; and although the law does not consider the exercise of the right of presentation as of any pecuniary value, or a thing for which a price or compensation ought to be accepted, yet the general right to present is considered as valuable, and an object of sale, which may be conveyed for a pecuniary or other good consideration.TM Particularestate in advowson appendant. Advowson in gross is assets for payment of debts. Where a person has only a particular estate in a manor to which an advowson is appendant, he can of course only alien the advowson for so long as his estate shall continue. A tenant in tail of a manor to which an advowson was appendant, granted the next avoidance of the advowson, and died: the issue entered on the manor, and the grant was held to be void." And so, in another case, tenant in tail and his son joined in a grant of the next avoidance of a church: the tenant in tail died. It was adjudged that the grant was void against the son and heir that joined in the grant, because he had nothing in the advowson at the time of the grant, neither in possession nor right, nor in actual possibility." It is said by Lord Coke, that an advowson is assets to satisfy a warranty; but that an advowson in gross is not extendible upon a writ of elegit, because no annual value can be set upon it. It has, however, been determined that an advowson in gross, whether the proprietor has a legal or an equitable interest therein, is assets for payment of debts, and will be directed to be sold by the Court of Chancery for that purpose. John Tong being indebted to several persons, by judgment, bond and simple contract, in great sums of money, died intestate, seised in fee, among other things, of the trust of an advowson in gross. Upon a bill filed by the creditors of John Tong, praying a sale of his real estate for the payment of his debts, a question arose whether this advowson was assets. Lord King decreed that it was, and should be sold for the payment of Tong's debts. On an appeal from this decree to the House of Lords, it was insisted by the appellants that this advowson was not assets at law, or liable to the demands of any of the creditors of Tong; because at law no inheritance was liable to any execution that was not capable of raising some profits towards satisfaction of the debt, which an advowson was not. the other side it was contended that, at common law, an advowson in fee was an hereditament descendible to the heir, valuable in itself, and saleable, and even capable, if necessary, of having an annual value put upon it, and was therefore legal assets in the hands of the heir. The decree was affirmed, with the concurrence of all the judges.P On An advowson may not only be alienated for ever, or for Partial estates life or for years, but it may be divided, and a lesser estate in advowsons. or right in it may be granted; for an advowson being a Right of presenright to present or appoint whenever the church is vacant, tation. that right may be granted for one turn, or for as many turns as the grantor may choose; after which it shall revert to him again. The right to the next presentation therefore is often found separated from the advowson, but it is nevertheless a part of the latter estate, although temporarily severed from it, and existing in a different party.9 If the crown acquires a right to present to a church, that Where the is not considered as the next presentation, so that the right crown acquires of a grantee of the next presentation should be thereby right to present. prejudiced, but such grantee is to have the next presentation, upon the avoidance by the presentee of the crown. Sir K. Clayton being seised in fee of an advowson, the church being then full, by a deed poll granted to M. Kenrick, his executors, &c., the next presentation, donation, and free disposition of the said church, as fully, freely and P Tong v. Robinson, 3 Vin. Abr. 144; 1 Brown's P. C. 114. |