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GRANT OF NEXT PRESENTATION.

Consideration,

THIS INDENTURE WITNESSETH, that, in pursuance of the said agreement in this behalf, and in consideration of the sum of £-, at or immediately before the sealing and delivery of these presents to the said A. B. paid by the said C. D., (the receipt, &c. [see Receipt. Precedent XVI. page 194]), he the said A. B. hath given, granted, and confirmed, and by these presents doth give, Grant. grant, and confirm unto the said C. D., his executors, administrators, and assigns, All that the turn or right Parcels. of presentation, donation, collation, nomination, and free disposition of and to the said parsonage, rectory, and parish church, which, if the said parsonage, rectory, and parish church shall become vacant during the life of the said A. B., shall first or next happen after the sealing and delivery of these presents : TO HAVE AND TO hold the said first or Habendum. next turn or right of presentation so happening, during the life of the said A. B., unto the said C. D., his executors, administrators, and assigns, for his and their own use (d): AND THE SAID A. B. doth hereby, for himself, Absolute cove

nants by ven

dor;

which, of course, were to be absolute. Where it is intended that the covenants shall be absolute, that intention should always be stated in the recital, to prevent the setting up at any future time of an allegation, that the departure from the usual practice was made by mistake, and contrary to the intention of the vendor. (Coldcot v. Hide, 1 Cha. Ca. 15; 2 Freem. 173; Fielder v. Studley, Finch, 90; Browning v. Wright, 2 Bos. & Pul. 26; Hesse v. Stevenson, 3 Bos. & Pul. 575; 1 Sugd. V. & P. 161; 2 Id. 102. See, too, Stannard v. Forbes, 1 Nev. & Per. 633).

(d) The next presentation to a church, when severed from the Next presentaadvowson, is a chattel—a chattel real till the vacancy happens, and tion a chattel. a chattel personal afterwards. Of course, the habendum should be to the executors and administrators. (1 Williams's Law of Executors, 420, 421). And if an advowson presentative is vested in any person in his natural capacity, either in fee or for life, and the church become void, and the owner dies after such avoidance, without making any appointment—the right to appoint to the vacant turn belongs to the executor and not to the heir, or to the next owner of the advowson. (8 Bing. 557, 558; 1 Willms. Law of Executors, ubi supra). And the law is the same if the advowson is vested in the owner in a politic capacity. (Mirehouse v, Rennell, (in the House of Lords), 8 Bing. 490; S. C. below, nom. Rennell v. Bishop of Lincoln, 3 Bing,

GRANT OF

NEXT PRESENTATION.

--for title ;

his heirs, executors, and administrators, covenant with the said C. D., his executors, administrators, and assigns, that he the said A. B., at the time of the sealing and delivery of these presents, is lawfully, rightfully, and absolutely seised of and in, or well and sufficiently entitled to the said advowson and right of presentation of and to the said parsonage, rectory, and parish church aforesaid, for a good, sure, perfect, absolute, and indefeasible estate, for his life, in possession as tenant by the curtesy of England, without &c., (see page 202]: AND that he the said A. B. now hath in himself good right, full power, and absolute authority, to give, grant, and confirm the said first or next turn or right of presentation so happening during the life of the said A. B.,

--for right to grant;

223; 7 B. & C. 113). And see the authorities cited in the above case, particularly in the opinion of Tindal, C. J., 8 Bing. 556. But where a man was seised of an advowson donative, and the church became vacant, and he afterwards died, it was held that his heir and not his executor was entitled to present. (Repington v. Tamworth School, 2 Wils. 150). But the authority of this case is very doubtful. (See the remarks of the Judges in Rennell v. Bishop of Lincoln and Mirehouse v. Rennell, ubi supra; see, too, 1 Willms. Law of Executors, 422, note (o)).

If an incumbent of a benefice, with cure of souls, although of a less annual value than £8 in the king's books, be instituted to another benefice, the first benefice is absolutely void as to the patron, except for the purpose of lapse; and, therefore, where the patron of such a benefice, the incumbent of which had been instituted to another benefice, sold the advowson, it was held, that the right to the presentation did not pass with the advowson. (Alston v. Atlay, 2 Nev. & Per. 492). But the incumbent of a benefice so avoided, may sue for tithes till sentence of deprivation, or until another clerk is presented. (S. C.; see, too, Halton v. Cove, 1 B. & Ad. 538; Apperley v. Bishop of Hereford, 9 Bing. 681; Betham v. Gregg, 10 Bing. 352).

If a church become void during the life of a husband who is tenant by the curtesy, and he die before the church is filled, the executor of the husband shall have the turn, and not the heir of the wife. (Wats. C. L. p. 71, 4th edit.). So, if a husband be seised of an advowson in right of his wife, and the church become void during the coverture, the husband is entitled to present, even if the wife die before the presentation, and there be no issue of the marriage. But if the wife survive the husband, or if the vacancy fell before the coverture, she or her executors shall present. (Co. Lit. 351. a.; Wats. C. L. 71, 72).

and hereinbefore given, granted, and confirmed, or expressed and intended so to be, unto the said C. D., his executors, administrators, and assigns, in manner aforesaid, according to the true intent and meaning of these presents: AND –for quiet enthat it shall be lawful for the said C. D., his executors, administrators, and assigns, to present to the said parsonage, rectory, and parish church, when and if the same shall first or next become vacant during the life of the said A. B., by any means whatsoever, without the lawful let, suit, trouble, denial, eviction, interruption, claim, or demand whatsoever of or by the said A. B., his executors or administrators, or any other person or persons whomsoever, any estate, right, title, or interest having, or lawfully or equitably claiming, or to have, or lawfully or equitably claim in or to the said advowson or right of presentation; AND THAT —-free from infree and clear, and freely and clearly acquitted, exonerated, cumbrances ; and discharged, or otherwise by the said A. B., his heirs, executors, or administrators, well and sufficiently saved, defended, kept harmless, and indemnified of, from, and against all and all manner of former and other estates, titles, troubles, charges, and incumbrances whatsoever: And – for further FURTHER, that he the said A. B., his executors and ad- assuranc ministrators, and all and every other person and persons whomsoever, having, or lawfully or equitably claiming, or who shall or may have or lawfully or equitably claim any estate, right, title, or interest, of, in, or to the said first or next turn or right of presentation so happening during the life of the said A. B. as aforesaid, shall and will, from time to time, and at all times hereafter, upon the request of the said C. D., his executors, administrators, or assigns, but at the costs and charges of the said A. B. (e), his executors or administrators, make, do, and execute, or cause and procure to be made, done, and executed, all and every such further and other lawful acts, deeds, matters, things, gifts,

GRANT OF NEXT PRESENTATION.

ent;

(e) The costs of further assurances, (the covenants being absolute), Expense of furare here thrown upon the vendor, as in the case of a mortgage upon ther assurance the mortgagor. And so it should be, because the purchaser, not ;

or not when the title

" is not shewn. seeing the title, can only frame his conveyance upon the statement of the vendor, and errors ought therefore to be remedied at the expense of the vendor,

GRANT OP NEXT PRESENTATION.

grants, confirmations, and assurances in the law whatsoever, for the further, better, more perfectly, and absolutely granting, confirming, and assuring the said first or next turn or right of presentation so happening during the life of the said A. B. as aforesaid, unto the said C. D., his executors, administrators, and assigns, as by the said C. D., his executors, administrators, or assigns, or his or their counsel in the law, shall be reasonably advised or devised and required. IN WITNESS &c.

XXXIII.

COVENANT TO
SURRENDER
COPYHOLDS.

COVENANT to surrenDER COPYHOLDS, with

Covenants for Title, and with VARIATIONS, where the SURRENDER PRECEDES the Covenants for Title (a).

Parties.

THIS INDENTURE, made &c. Between A. B., of &c. [vendor], of the one part, and C. D., of &c. [purchaser),

Forms of the (a) The legal estate in copyhold hereditaments can be conveyed assurances of

only by the customary mode of assurance, generally by surrender, copyholds.

into the hands of the lord, or of his steward, or other customary deputy, and the consequent admittance of the purchaser. The record of this customary conveyance is preserved on the court-rolls, and is evidenced by the stamped copy of the entry on the rolls. See the cases cited ante, page 157, note.

But as no covenants for title can be entered into on the courtrolls, it is usual, at the present day, to have a separate deed prepared, for the purpose of containing the usual covenants. If the deed precede the surrender, it assumes the form of the precedent in the text, viz. a covenant by the vendor to surrender to the purchaser, followed by the usual covenants for title; and this is the more common form. But if the surrender precede the deed, the words in the text within brackets must be omitted, and the variations in the notes

introduced at the places referred to. Purchase

In case the former method of conveyance is resorted to, and the money not to be paid till sur. covenant precede the surrender, the purchaser must not

pay
his

purrender. chase-money until the actual surrender has been made; for, if after

of the other part: Whereas the said A. B. [hath] con

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the execution of the deed of covenant, but before the surrender, an- Recital of con

tract for sale. other purehaser, for valuable consideration, and without notice of tract the covenant, should take a surrender to himself and be admitted, he would be entitled to hold the estate against those claiming under the covenant; for he would have an equal equity with them, and be the owner of the legal estate. (Orwick v. Plumer, 5 Bac. Abr. 43; see, too, Whitbread v. Jordan, 1 You. & Col. 303; Plumbe v. Fluitt, 2 Anst. 432).

It is, probably, from the circumstance that copyholds are fre- Whether covequently sold together with freeholds, at an entire price for the whole,

for the whole nants for title,

entered into that the practice of taking the covenant to surrender has arisen; the before surrendpurchase-money is paid on the execution of the deed of conveyance er, run with the of the freeholds; and, in the same deed, is inserted the covenant to surrender the copyholds. The apportionment of price is only made for the purpose of the stamp duty, and without any regard to the real comparative value of the freeholds and copyholds. But, it may be doubted, whether the practice is correct, for, independently of the consideration, that the value or price of copyholds ought not to be paid until, by the surrender of the vendor, the legal title to admittance is vested in the purchaser; it is a very serious question, whether the covenants for title will run with the land if they are entered into before the surrender to the purchaser. In the case of Riddell Riddell v. Ridv. Riddell, (7 Sim. 529), John Riddell, by an indenture, dated the dell. 15th of July 1825, covenanted for valuable consideration to surrender to Robert Morris, his heirs and assigns, a piece of land, held by copy of the manor of Cheltenham, and entered into the usual covenants for title with Morris, his heirs and assigns. On the 16th of July, 1825, Riddell surrendered to Morris, in pursuance of the covenant. In November, 1825, Morris sold to Billings, and covenanted to surrender, and covenanted with Billings, his heirs and assigns, for title, as against his (Morris's) own acts, and the acts of persons claiming under him; shortly afterwards Morris surrendered to Billings, who was admitted, and then Morris became bankrupt. The widow of John Riddell afterwards established her right to freebench out of the lands aliened by her husband; (Riddell v. Jenner, 10 Bing. 29); and it then became a question, whether Billings could avail himself of Riddell's covenants with Morris, so as to obtain an indemnity for the dower. The master to whom the cause stood referred, reported that the indemnity made by the covenants was a subsisting charge, and capable of being enforced by Billings against the estate and effects of John Riddell. The report was objected to and the point argued; and the Vice-Chancellor (Sir L. Shadwell) decided in favour of the report. “Where,” his Honor observed, “ a deed containing a covenant to surrender copyholds and covenants for title is executed on

land.

VOL. III.

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