« PreviousContinue »
S 35. Tenants in common of an advowfon muft Tenants iu also join in presenting to the church, and, therefore, if they present severally, the ordinary may either admit or refuse the clerk; and after fix months he may present by lapfe.
§ 36. If one tenant in common of an advowson 2 Roll, Ab. presents alone, this will not put the other out of poffef- 372. fion; for at the next avoidance, they may join in prefentation.
Epif. Salifburyv.Philips, 1 Ld. Raym.
§ 37. It was held by Lord Holt, that joint-tenants of Effect of Paran advowfon might make partition to prefent by turns, which would divide the inheritance aliquatenus, and create separate rights, fo that the one shall present in the one turn, and the other in the other, which is a fufficient partition. For partition of the profits is a partition of the thing, where the thing and the profits are the fame. It could not make two advowfons out of one, but it could create diftin&t rights to present in the feveral turns.
$ 38. By the ftatute 7 Ann. c. 18. it is enacted, "That if coparceners or joint-tenants, or tenants in "common, be feised of any estate of inheritance in "the advowfon of any church or vicarage or other "ecclesiastical promotion, and a partition is or fhall "be made between them to prefent 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 fuch partition, each shall be said to "be
A Mortgagor may nominate.
"be feifed, the one of the one moiety to prefent in "the first turn, the other of the other moiety to pre"fent in the fecond turn in like manner, if there be "three, four, or more, every one shall be faid to be "feised of his or her part, and to prefent in his or her "turn."
$ 39. Though a perfon has mortgaged an advowfon by which the legal right to present becomes vested in the mortgagee, yet fuch mortgagee cannot prefent; whether the advowfon be appendant or in grofs: for, Com. R. 343. fince the presentation is gratuitous, and the mortgagee cannot account for any benefit from it, a court of equity will compel the mortgagee to present the nominee of the mortgagor.
40. A petition was prefented on behalf of a mortgagor, that the mortgagee of a naked advowfon might accept of his nominee, and present him upon an avoidance, the incumbent being dead.
It was infifted for the mortgagee, that as there was a large arrear of intereft, he ought to prefent, if any advantage accrued from it: and cited the cafe of Gardener v. Griffith, 2 P. Wms. 404., where the plaintiff's father being poffeffed of a 99 years term of the advowfon of Eckington, made a mortgage thereof to the defendant, and in the mortgage deed was a covenant, that on every avoidance of the church, the mortgagee fhould prefent. The court gave no opinion, but feemed to incline that the mortgagee had a right to prefent.
Lord Hardwicke was of opinion, that the mortgagor ought to nominate, and that it was not presumed any pecuniary advantage was made of a prefentation. His Lordship obferved, that these were indifferent securities, but the mortgagee fhould have confidered it before he lent his money; and, instead of bringing a bill of foreclosure, as he had done in this case, should have prayed a fale of the advowfon.
The next day, his Lordship mentioned, that he was not clear as to this point, and that he had looked into the cafe of Gardiner v. Griffith, according to the state of it in the House of Lords, where the decree of Lord Chancellor King was affirmed: and faid, that was a mixed cafe; and that he doubted himself whether a covenant that the mortgagee fhould prefent (as was the cafe there) was not void, being a ftipulation for fomething more than the principal and intereft, and the mortgagee could not account for the presentation.
The question was adjourned for further confideration to the next day of petitions, when the mortgagee, not being able to find any precedent in his favour, gave up the point of prefenting: and an order was made, that the mortgagor should be at liberty to present, and the mortgagee was obliged to accept of the mortgagor's nominee.
§ 41. It appears to have been formerly held, that where a manor to which an advowfon was appendant, was extended on a ftatute merchant, if the church became void during the cognizee's eftate, the cognizee
And also a
An Infant may present. 3 Inft. 156.
2 Inft. 89 a.
3 Atk. 710.
2 Ab. Eq.518.
might present. But it is to be prefumed, that if a cafe of this kind were now to arife, the cognizor would be allowed to nominate a clerk to the cognizee, by analogy to the case of a mortgagor.
§ 42. It has been held upon the fame principle, that if a patron is a bankrupt, and the church becomes void before the commiffioners or affignees have fold the advowfon, the bankrupt shall present.
$ 43. Lord Coke fays, that a guardian in focage of an infant feifed of a manor, to which an advowfon is appendant, fhall not prefent to the church, because he can take nothing for the presentation for which he may account to the heir; and therefore the heir, in that case, shall prefent, of what age foever.
§ 44. This doctrine is now fully established; and Lord Hardwicke has obferved, that the strong ground the law goes on, is, that there can be no inconvenience, because the bishop is to judge of the qualifications of the clerk presented, and in the following cafe it was determined that an infant, who was not a year old, might nominate or present to a living.
§ 45. Cyril Arthington conveyed an advowfon to trustees, upon truft to present such a son of a particular person, as should be capable of taking the fame, when the church became void; and if that perfon had no fon qualified to take the living at that time, in trust to present such person as the grantor his heirs or affigns. fhould appoint, and in default of such nomination by
the grantor and his affigns, that the trustees fhould present a person of their own choofing. The grantor died leaving his fon and heir an infant of fix months old. The living became vacant. The guardian of the infant took him in his arms, and guided his pen in making his mark, and made him feal a writing, whereby one Hitch was nominated and appointed to the trustees, in order to be prefented by them to the living. The trustees fuppofing the plaintiff as an infant, unable to make fuch an appointment, refused to prefent Mr. Hitch, and presented another perfon. Upon which the infant brought his bill against the trustees to have them execute their truft, in prefenting his nominee. It was argued for the defendants that the presentation of clerks to bishops for admiffion to churches was an act that required judgment and discretion, which an infant was not master of; and though the law fuffered them to present to their own livings, yet it was of neceffity, because there was no body else to do it, and if they could not, then a lapse must incur: For a prefentation to a living being a thing of no value, and therefore not to be accounted for, a guardian could not have it, whereas in the prefent cafe if the grantor or his heirs neglected or were incapable of presenting, the trustees were expressly authorized to prefent, whose act would be confidered as the act of the infant, so that no injury would be done to any body. And though in cafes of evident neceffity, equity might fquare itself by law, yet where no fuch neceffity appeared, reason and common sense ought to prevail; from whence it was inferred that the nomination being an act requir