VI. PRECEDENT VI. AGREEMENT for the SALE of a NEXT PRESENTATION to a RECTORY (a). Covenant to PAY INTEREST till a VACANCY. SALE OF NEXT PRESENTATION. 1. Parties. 2. Agreement for sale. Simony, statutes respecting. Simony, where patron presents for profit. By sale of presentation or ad day of 18—, AN AGREEMENT, made this 1. The said A. B. will sell, and the said C. D. will purchase, the next presentation to the rectory and parish (a) The principal peculiarity in sales of next presentations and advowsons is occasioned by the law relating to simony. It does not appear that simony was an offence punishable by the common law: 2 Blac. Com. 279; but by the statute 31 Eliz. c. 6, it is enacted, that if any patron, for any sum of money, reward, gift, profit, or benefit, directly or indirectly, or for or by reason of any promise, agreement, grant, bond, covenant, or other assurance, shall present or collate any person to an ecclesiastical benefice or dignity, such presentation shall be void; the presentee shall be rendered incapable of ever enjoying the same benefice; and the Crown shall present to it for that time only. If, however, the simoniacal presentee die without having been convicted of such simony in his lifetime, such simoniacal contract shall not prejudice any innocent patron or clerk on pretence of lapse to the Crown or otherwise: Stat. 1 Will. & Mary, c. 16. By the stat. 12 Anne, c. 12, it is declared, that if any person for money or profit shall procure, in his own name or the name of any other, the next presentation to any living ecclesiastical, and shall be presented thereupon, such contract is simoniacal; the presentee is disabled from holding the benefice; and the presentation devolves to the Crown. It is obvious, that, under the stat. 31 Eliz., any presentee, giving or promising to the patron any benefit or profit for being presented, incurs the guilt of simony: 3 Cru. Dig. tit. 21, ch. 2, ss. 55, 56; 2 Blac. Com. 279. Marriage is a profit within the meaning of the statute: Byrte v. Manning, Cro. Car. 191. If the presentee be not cognisant of the simony, the presentation devolves to the Crown, but he is not disabled from holding the benefice: Hutchinson's case, 12 Rep. 101, 74, 3 Inst. 154, Cro. Eliz. 789; Rex v. Trussel, 1 Sid. 329, 2 Keb. 204. Another kind of simony is the sale of the presentation during a vacancy of the church, which is within the statute of 31 Eliz., and church of in the county of —, at the price of £, whereof £ and diocese of PRECEDENT VI. shall be paid. is also void at law, on account of such presentation being a chose in action which cannot be transferred: Bishop of Lincoln v. Wolferstan, 1 W. Bl. 490, 2 Wils. 174, 3 Burr. 1504. But if the advowson be granted during the vacancy, the grant is only void as to that presentation, and not as to the advowson: S. C. (See Grey v. Hesketh, Ambler, 268). If the patron sell the advowson during the vacancy, neither he nor his vendee can have a quare impedit, because the vacancy makes it a chose in action, so that it does not pass to the grantee; and the grantor has destroyed his action by the conveyance: Leak v. Bishop of Coventry, Cro. Eliz. 811. A sale during the incumbency of a clerk, who has been wrongly presented, is considered as a sale during a vacancy: Walker v. Hammersley, Skin. 20. It is not now deemed simony (though the contrary was formerly held) to purchase a next presentation, the church being full, with a view to present a particular person, who is afterwards presented: 3 Cru. Dig. tit. 21, ch. 2, s. 69; 6 Bing. 17. SALE OF NEXT PRESENTATION. 3. Consideration. vowson during vacancy. Simoniacal purchase of advowson affects only next presentation. The statutes against simony apply only to the presentation corruptly procured or intended to be procured; and, therefore, where in pursuance of a contract which was simoniacal in respect to the next presentation, there was a conveyance of the advowson, including the next presentation; it was held that the conveyance was void only as to the simoniacal transaction, and not as to the conveyance of the advowson: Greenwood v. The Bishop of London, 5 Taunt. 727. The purchase of an advowson in fee, or of the next presentation Purchase when alone, the incumbent being in extremis within the knowledge of incumbent is in both parties, but the purchase being made without the privity, and without a view to the nomination, of any particular clerk, is not void on the ground of simony: Barret v. Glubb, 1 W. Bl. 1052; Fox v. Bishop of Chester, 6 Bing. 1; S. C., 1 Dowl. N. S. 416; Alston v. Atlay, 6 N. & M. 686. The purchase of an advowson in fee by a clergyman, and the presentation of himself on the next vacation, is not, it seems, within the statute 12 Anne: Cases & Opinions, 409; but the purchase of a next presentation by a clergyman is within the statute. There is nothing necessarily simoniacal in an agreement between two incumbents not to claim dilapidations on an exchange of livings: Goldham v. Edwards, 18 C. B. 389. See more on the subject of simony, Bac. Abr. tit. Simony; Watson's Complete Incumbent: Tudor's L. C. Conv. 160. extremis. Purchases and exchanges by clergymen. The Crown, as head of the Church of England, presents to all Prerogative benefices not belonging to other patrons (1 Eliz. c. 1), or which, presentation. PRECEDENT VI. upon the execution of these presents, and £, the remainder thereof, on the SALE OF NEXT PRESENTATION. An archbishop's option. Next presentation personal estate. Who may pre- Infants. Lunatics. day of next, at the belonging to an archbishopric or bishopric, become void during a vacancy of the see: Bro. Presentment, 10, 13; and if the incumbent of a church be made a bishop of a see in England, the Crown is entitled to present for that turn: 3 Wils. 232; but the Lord Chancellor or Keeper of the Great Seal has the right to present to such of those livings as are below the value of £20 in the King's Books, according to the valuation in the time of Henry 8: Tudor's L. C. C. 155. The Crown has, however, no prerogative right to present to a benefice in England becoming vacant by the promotion of the incumbent to a colonial bishopric within the Queen's dominions which has been created solely by the prerogative of the Crown; and it is doubtful if the prerogative right of presentation exists where the incumbent is promoted to an Irish bishopric or a colonial bishopric created by Act of Parliament: Reg. v. Eton Coll. 8 E. & B. 610. The right of the Crown to present to a benefice of which the incumbent has been made a bishop, only postpones and does not take away the right of the patron of the next turn to present: Grocers' Company v. Archbishop of Canterbury, 3 Wils. 216. And, therefore, a purchaser of a next presentation, if the incumbent be made a bishop, will be entitled to present on the succeeding vacancy: Cailland v. Troward, 2 H. Bl. 324; Troward v. Cailland, 6 T. R. 439, 778. Hence, in agreements for the sale of next presentations, it is necessary to provide for the incumbent being promoted to a bishopric, otherwise the purchase will be of the second turn. Every bishop, whether created or translated, is bound immediately after confirmation to make a legal conveyance to the archbishop of the next avoidance of one such dignity or benefice belonging to his see as the archbishop shall choose; and if the archbishop die before the avoidance happens, the right of filling up the vacancy goes to his executor or administrator. Wms. Executors, 595. The next presentation to a church is personal property, and goes to the executor, if not specifically disposed of by will, unless the owner of the advowson be also the incumbent: Wms. Executors 592. During coverture, the husband of a woman having an advowson presents jointly with her in both their names; and advowsons are subject to tenancy by curtesy, and to dower: Co. Litt. 29, a., 32, a., 120, a., 166, a., 388, a. An infant, whatever may be his age, and not his guardian, will present Co. Litt. 17, b., 89, a. Where a lunatic is patron, the Lord Chancellor presents to the living, usually giving it to a member of the family: Shelf. Lun, 11, Phillips, Lun. 336. office of to the vendor, or as he shall direct: THE PRECEDENT VI. vendor will, within SALE OF NEXT PRESENTATION. -for delivery of abstract, When an advowson descends to coparceners, and they cannot agree Coparceners. to present, they present successively according to seniority; and this privilege extends not only to the heirs, but to the assignees of each coparcener, whether by conveyance or act of law; so that a tenant by the curtesy shall have the same turn as his wife would have had : Co. Litt. 166, b.; 3 Cru. Dig. 21; Gully v. Bishop of Exeter, 10 B. & C. 584. The presentation to benefices belonging to papists is vested in the Papists. Universities of Oxford and Cambridge: 1 Will. & M. c. 26; see also 3 Jac. 1, c. 5; 12 Anne, st. 2, c. 14; 11 Geo. 2, c. 17. A mortgagee cannot derive any pecuniary benefit from a fallen Mortgagees. presentation; and even though there be an express stipulation that he shall have the presentation, he must present the nominee of the mortgagor: Mackenzie v. Robinson, 3 Atk. 559; Gardiner v. Griffiths, 1 P. Wms. 404; Amhurst v. Dowling, 2 Vern, 401; Gally v. Selby, 1 Com. R. 343; S. C., 1 Stra. 403. A bankrupt has the right of presentation if a vacancy occur before Bankrupts. a sale: 12 & 13 Vict. c. 106, s. 147. A trustee must present the nominee of his cestui que trust: Bar- Trustees. ret v. Glubb, 2 W. Black. 1052; Lord Albemarle v. Rogers, 2 Ves. jun. 477; S. C., 7 Bro. P. C. 522; Boteler v. Allington, 3 Atk. 458; Sherrard v. Lord Harborough, Amb. 165. But a right to receive the income of the proceeds of the sale of real estate, and the rents until sale, does not necessarily confer the right of presentation to an advowson included in the devise: the presentation may devolve on the heir: Martin v. Martin, 12 Sim. 579. See further on this subject, Tudor's L. C. C. 156 et seq., and the notes to the Precedents of Grants of an Advowson and next Presentation, infra. (b) The title to an advowson or to a next presentation must, in the absence of express stipulation, be deduced through a period of sixty years at least, and through such longer period (if needful) as shall include three incumbencies, not reckoning the incumbencies of clerks. presented by the Crown on the promotion of a former clerk to a bishopric. But it is not necessary to produce, under any circumstances, a longer title than for 100 years. (See statute 3 & 4 Will. 4, c. 27; and Dart, 157.) Title to advowson and presentation. common. Joint tenants and tenants in common must concur in a presenta- Joint tenants tion; but if they present different clerks, the bishop may admit and tenants in either or refuse both Co. Litt. 186, b.; Wilson v. Kirkshaw, 1 Ves. 313; 3 Cru. Dig. tit. 21, c. 2, ss. 27-35; but where a protestant and a papist are tenants in common, the right of presentation is in VOL. II. D PRECEDENT VI. SALE OF NEXT PRESENTATION. -and for conveyance. 4. If next turn fall before pay ment of purchase money, vendor to present pur day of on payment, on the day of day of 2. If the next presentation shall fall before the said the vendor will, as soon as the purchase-money shall have been paid, present and procure chaser's nominee. to be instituted and inducted to the said rectory or parish church, such duly qualified person as the purchaser shall nominate; and if the presentation shall devolve on the Crown in consequence of the present incumbent being promoted to a bishopric before the said this agreement shall become void. 5. Agreement to be voidable, if the purchase be not completed at the time fixed. Time, the essence of the agreement, day of 3. If the purchase shall not be completed on the day of, then the present agreement shall, as against the party through whose neglect or default such non-completion shall have happened, be voidable, at the option of the other party; and if so made void, all the costs and expenses of and incidental to the same, and to the investigation of title, and otherwise in relation to the premises, shall be paid by the party in default (c). the protestant alone: Edwards v. Bishop of Exeter, 5 Bing. N. C. 652. If tenants in common cannot agree in presentation, they must draw lots for choice: Johnstone v. Baber, 22 Beav. 562, and on app. 5 De G. M. & G. 439. (c) This stipulation is neither necessary nor a usual part of such an agreement, and in many cases it is desirable to give the vendor power to rescind the contract if a requisition be made which he may be unable or unwilling to comply with. See such a clause suprà, p. 12. If there has been no fraud or concealment on the vendor's part the purchaser of an advowson will not be entitled where such a clause forms part of the contract, to insist on specific performance with compensation on account of a charge on the living to Queen Anne's Bounty, the existence of which he may discover before completion. Edwards- Wood v. Marjoribanks, 3 De G. & J. 329, affd. 7 H. L. Cas. 806. A clause making time the essence of the contract, should always be inserted in agreements for the sale of next presentations, because, |