20 CHAPTER III. OF INCORPOREAL HEREDITAMENTS. An incorporeal hereditament (1) is a right issuing out of Definition of a thing corporate (whether real or personal), or concerning, reditaments. incorporeal he (1) See ante, in note (6) to the last chapter, Mr. Fearne's definition of incorporeal hereditaments, which is analogous to that given by our author; the closeness of resemblance was to be expected, as both drew from the same original. It is to incorporeal hereditaments alone that prescription, using that word in its strict sense as referring to immemorial usage, properly applies; (see this subject enlarged upon, post, in chap. 17, and the notes thereto); but there is another kind of prescription, established by the statute law, which extends equally to corporeal hereditaments, and by virtue of which an uninterrupted possession for a certain number of years will give the possessor a good title, by taking away from all other persons the right of entering on such hereditaments, or of maintaining any action at law, or suit in equity, for them. (See this subject exhausted, in the arguments and judgment in the great case of Cholmondeley v. Clinton, 2 Jac. & Walk. 1-206). Incorporeal hereditaments may be conveyed either by grant, or by bargain and sale; by covenant to stand seised, or by lease and release, for they are within the Statute of Uses, (27 Hen. VIII. c. 10), in construing which the word hereditaments is to be understood generally, not confining its operation to such as are corporeal. To make such conveyances valid, however, by aid of the statute, the incorporeal hereditaments must be in actual existence at the time, otherwise no use can arise; (Beaudeley v. Brook, Cro. Jac. 189); and where the conveyance is by grant, the grant only operates on the estate and interest of the grantor, and will pass no more than he is by law enabled to convey. Consequently, if a tenant in tail of a rent service, or a reversion or remainder in tail, grants the same in fee, and dies, this is no discontinuance to the issue in tail. On the same principle, a grant cannot occasion a forfeiture; thus, if a tenant for life or years of an advowson, rent, common, reversion or remainder of land, or other or annexed to, or exercisable within, the same (a). It is not the thing corporate itself, which may consist in lands, houses, jewels, or the like; but something collateral thereto, (a) Co. Litt. 19, 20. incorporeal hereditament, grants the same in fee, this is no forfeiture; be cause nothing passes but that which lawfully may pass. (1 Inst. 251 b. 327 b). A particular estate, however, in any incorporeal hereditament, may be forfeited by matter of record, amounting to a clear renunciation of the feudal connexion between the tenant and his lord. Thus, if a tenant for life, of any hereditament, corporeal or incorporeal, levies a fine sur cognizance de droit come ceo, &c., this will operate a forfeiture of his estate; if he accepts a fine of the same kind from a stranger, this will equally cause a forfeiture; for, by admitting the reversion to be in a stranger to convey, and by accepting it himself to the prejudice of the person in reversion, he unequivocally denies the tenure. (Margaret Poger's case, 9 Rep. 106 b). And though the reversion is not devested by a fine come ceo, levied by a tenant for life of an advowson in gross, still the act works a forfeiture of the estate for life. (Springe v. Sir Julius Cæsar, 1 Rolle's Abr. 852). But, a fine sur concessit has not the same effect; for a fine of this description only transfers such an interest as the tenant for life may lawfully pass. (Pigott v. Earl of Salisbury, T. Jones, 69. Lethieullier v. Tracy, 3 Atk. 729, 730). And even a fine come ceo, &c., levied by a cestui que trust for life, will not cause a forfeiture; (Whetstone v. Bury, 2 P. Wms. 147); for, whatever conveyance a tenant for life of a trust makes, he cannot destroy the contingent remainders vested in the trustees, he having no legal estate in him; and his conveyance, whatever be its nature, will only pass what he can legally grant. A tenant in tail of a trust may, it is true, bar the remainders by a common recovery, but that is because he is really master of the estate, and may call in the legal estate when he pleases, and have it executed to the trust; but a Court of Equity will never execute the estate in law to a cestui que trust for life, to enable him to destroy the contingent remainders. (Penhay v. Hurrell, 2 Freem. 213. Lethieullier v. Tracy, ubi supra). If the tenant for life of incorporeal hereditaments suffers a common recovery, wherein he is vouched, without the concurrence of the person in remainder, this operates a forfeiture of the estate for life, in the same manner as a fine come ceo levied of the hereditaments would have done. Of course the same rule applies to corporeal hereditaments. (Pelham's case, 1 Rep. 15). So, if the tenant of a particular estate in hereditaments, is a party to any act in a court of record, whether as plaintiff or defendant, which act, either expressly or virtually, amounts to a denial of his tenure, he will incur a forfeiture. (Co. Litt. 251 b, 252 a. 1 Roll. Abr. 851-858). as a rent issuing out of those lands or houses, or an office relating to those jewels. In short, as the logicians speak, corporeal hereditaments are the substance, which may be always seen, always handled: incorporeal hereditaments are but a sort of accidents, which inhere in and are supported by that substance; and may belong, or not belong to it, without any visible alteration therein. Their existence is merely in idea and abstracted contemplation; though their effects and profits may be frequently objects of our bodily senses. And, indeed, if we would fix a clear notion of an incorporeal hereditament, we must be careful not to confound together the profits produced, and the thing, or hereditament, which produces them. An annuity, for instance, is an incorporeal hereditament (2): for though the money, which is the fruit or product of this annuity, is doubtless of a corporeal nature, yet the annuity itself, which produces that money, is a thing invisible, has only a mental existence, and cannot be delivered over from hand to hand. So tithes, if we consider the produce of them, as the tenth sheaf or tenth lamb, seem to be completely corporeal; yet they are indeed incorporeal hereditaments: for they being merely a contingent springing right, collateral to or issuing out of lands, can never be the object of sense: that casual share of the annual increase is not, till severed, capable of being shewn to the eye, nor of being delivered into bodily possession. [ *21 ] They are principally of ten Incorporeal hereditaments are principally of ten sorts: advowsons, tithes, commons, ways, offices, dignities, fran- sorts; chises, corodies or pensions, annuities, and rents. I. Advowson (3) is the right of presentation to a church, I. Advowsons. (2) Of course, our author meant to speak of an annuity granted to a man and his heirs; not of an annuity for life, which in no sense of the word can be called an hereditament. The word is, no doubt, often inserted in grants for life or years, but then it is only with reference to some subject which is (3) Our author's account of the ori- or ecclesiastical benefice. Advowson, advocatio, signifies in clientelam recipere, the taking into protection; and there Codex, 757, and in 1 Instit. 17 b, 18; but Lord Coke adds, there may be two several patrons, (and two several incumbents), of one church; and one part of the church, as well as of the parish allotted to one, and the other part to the other: in which case each right of advowson is termed advocatio medie tatis ecclesia; which he distinguishes from medietas advocationis ecclesia, both as to the nature of the right, and the proper remedy for a disturbance thereof. The right of advowson regularly includes, not only the right of presentation, but the right of nomination to a church. These two rights, however, may exist in different persons. A person seised of an advowson may make a valid grant, binding himself to present the nominee of the grantee, when the church shall next become vacant; and, for that turn, the grantee will, for most purposes, be considered as patron of the church. (Throckmorton v. Tracy, 1 Plowd. 157; Hare v. Bickley, 2 Plowd. 529; Calvert v. Kitchen, Lane, 36). 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; (Boteler v. Allington, 3 Atk. 458; Mutter v. Chauvel, 1 Meriv. 493); but it appears from the cases just cited, if the trustee of an advowson does present, and the cestui que trust, (not being entitled to some legal exemption taking him out of the usual rule as to the operation of time), neglects to bring his quare impedit, or file a bill in equity, within six months after the time of such usurpation, he will be barred of all remedy. The same rules hold in all these several respects, as between the mortgagor and mortgagee of an advowson; the mortgagee, as having the legal estate, ought to present; (Croft v. Powell, Comyns, 609); the mortgagor, as entitled to the equity of redemption, ought to nominate; but he will lose his right by the same laches which would bar a trustee. (Gardiner v. Griffith, 2 P. Wms. 405. Jory v. Cox, Prec. in Ch. 71). The mortgagee even of a bare advowson, and who, consequently, can have no other satisfaction for his money lent than by presentation, must nevertheless present the nominee of the mortgagor. (Mackenzie v. Robinson, 3 Atk. 559. Gubbins v. Creed, 2 Sch. & Lef. 218. Dimock's case, 2 Freem. 274). Mr. Cruise also says (in his Dig. tit. 21, c. 2, s. 41), and cites Wats. Inc. 106, as his authority, that "it has been held, if a patron of a church is a bankrupt, and the church becomes void before the advowson is sold under the commission, the bankrupt shall present or nominate to the church." This statement is rather vague: we have just seen that the rights of presentation and of nomination are distinct things: the bare right to present is merely a ministerial interest; (Sir George Shirley v. Underhill and Bursey, Moor, 894); but, as we have also seen, the party in whom the legal estate is vested, must present; therefore, after the execution of the usual bargain and sale to his assignees, the bankrupt could not do the ministerial act of presentation; there seem better grounds for allowing him to nominate: for, as the actual vacancy fore is synonymous with patronage, patronatus: and he who has the right of advowson is called the patron of the church. For, when lords of manors first built churches on their own demesnes, and appointed the tithes of those manors to be paid to the officiating ministers, which before were given to the clergy in common, (from whence as was formerly mentioned (b), arose the division of parishes,) the lord, who thus built a church, and endowed it with glebe or land, had of common right a power annexed of nominating such minister as he pleased (provided he were canonically qualified) to officiate in that church, of which he was the founder, endower, maintainer, or, in one word, the patron (c). This instance of an advowson will completely illustrate the nature of an incorporeal (4) hereditament. It is not itself the bodily possession of the church and its appendages, lowed in the Roman empire. Nov. 56, t. 12, c. 2. Nov. 118, c. 23. [and see Gibson's Codex, 756.-ED.]. (b) Vol. i. p. 112, (e) This original of the jus patronatus, by building and endowing the church, appears also to have been al could not be sold for the benefit of the creditors, (Bishop of Lincoln v. Wolforstan, 3 Burr. 1510, 1512,) and as the bankrupt's estate is vested in his assignees solely for the purpose of paying his debts, it might reasonably be contended, that a beneficial interest, which could not be applied for that purpose, (Rennell v. The Bishop of Lincoln, 3 Bing. 236; Gulley v. The Bishop of Exeter, 4 Bing. 297), should be enjoyed by the bankrupt; for who could have a better claim to the disposal of it? (Gibson, 794). An advowson, (setting aside the case of an actual vacancy) is clearly assets for payment of debts, and will be directed by the Court of Chancery to be sold for that purpose. (Robinson v. Tong, 3 P. Wms. 401; Ripley v. Waterworth, 7 Ves. 447; West faling v. Westfaling, 3 Atk. 464). A guardian cannot present to an advowson, because he cannot account with his ward in respect thereof. The infant ward must present. 1 Inst. 89 a. 3 Inst. 156. Shopland v. Ryoler, Cro. Jac. 99. Arthington v. Coverley, 2 Eq. Ca. Ab. 520). The right of presentation to a living is mere matter of property; but the actual possession of a living is not a mere matter of property, but also dependant upon the discretion of the ordinary, who may see just reasons for refusing a presentation. (Newdigate v. Helps, 6 Mad. 133. 2nd Inst. 631. Mallory's Quare Impedit, 87). (4) See ante, note (6) to chap. 2; and note (1) to the present chapter. |