were or should be made temporal, shall have the same remedies for recovery thereof, as for lands and tenements. 67. With respect to the estate which lay impropriators are capable of having in tithes, they may be tenants in fee simple, fee tail, for life, or years. Husbands may be tenants by the curtesy, and widows endowed of them. They are accounted assets for payment of debts, and have all other incidents belonging to temporal inheritances. An estate in tithes may be held in joint tenancy, coparcenary, or in common; and a partition of any of these may be obtained by a bill in Chancery. 68. On a bill for a partition of tithes and casual profits in the Isle of Wight, the defendant demurred, upon the ground that there were no casual profits, and that it might be divided upon a writ of partition. Lord Hardwicke said," An ejectment will lie of tithes, of which the execution is a writ of possession; and the sheriff may do as much on partition as on a writ of possession on ejectment. This is not casual, whether tithes will rise or not. I do not doubt but this Court can divide them, as it may several things which cannot at law. Over-rule the demurrer, therefore." But 69. Estates in tithes are alienable by lay impropriators, in the same manner as other real estates; and are comprehended within the statute of Uses, under the word hereditaments. it should be observed, that no good title can be made to tithes by a lay impropriator, without showing the letters patent by which the tithes, or the rectory or parsonage to which they are annexed, were granted by the crown to some lay person; for this is the only mode of repelling any claim which may be made to those tithes by an ecclesiastical person claiming jure ecclesia. The letters patent should also be inspected, to see that no reversion remains in the crown. What estate they may have. 1 Inst. 159 a. Baxter v. Ves. 494. Of exemptions from tithes. 2 Rep. 44 a. 70. With respect to exemptions from tithes, it should first be observed, that by the old law no layman was capable of having tithes, nor allowed to prescribe generally that his lands were exempt from the payment of tithes; for without special matter 3 Burn. Ecc. shown, it should not be intended that he had any lawful dis- Law, 414. charge therefore, the mere non-payment of tithes, though for time immemorial, [did not previously to the recent act of 2 & 3 Will. 4. c. 100. (for shortening the time required in claims of modus decimandi, or exemption from or discharge of I. A real com- 13 Eliz. c. 10. s. 3. Cholmley v. 2 Ed. 304. 2 Swan. 311. Turn. 61. Hawes v. Swain, 2 Cox R. 179. tithes,)] amount to an exemption, and could not be pleaded against a spiritual person, without setting out and establishing the causes of such exemption, except in the case of portionists. Lands may, however, be exempted from the payment of tithes. 1. By real composition. 2. By a prescription de modo decimandi. 3. By a prescription de non decimando. 4. By act of parliament. 71. A real composition is where an agreement is made between the owner of lands and the parson or vicar, with the consent of the patron and ordinary, that his lands shall in future be freed from the payment of all tithes, in consideration of some land, or other real recompence, given to the parson or vicar, in lieu and satisfaction of such tithe. This kind of composition was formerly permitted, because it was supposed that the clergy would be no losers by it, as the consent of the ordinary, whose duty it was to take care of the church in general, and of the patron whose interest it was to protect that particular church, were both required to render the composition effectual. 72. No real composition for tithes can be good, unless it was made before the thirteenth of the reign of Queen Elizabeth; for by a statute made in that year, it is enacted that no parson or vicar shall make any conveyance of any lands, tithes, tenements, or other hereditaments, being parcel of the possession of their churches, to any persons, except leases for twenty-one years, or three lives. And though there have been several decrees made by courts of equity to confirm compositions, made with the consent of the parson, patron, and ordinary, subsequent to the stat. 13 Eliz., still they were not held to be binding on the succeeding incumbents, [previously to the above mentioned act of 2 & 3 Will. 4. c. 100.; but by the second section of that statute it is enacted that such compositions so confirmed, and which have not since been set aside, abandoned, or been departed from, shall be valid.] 73. It was formerly held that a composition real could not be established without shewing the deed by which it was created, or proving the actual existence of such deed. It was, however, laid down in a modern case, that although, in order to establish a real composition for tithes, it was not now considered as absolutely necessary to produce the deed, yet evidence must be given of such deed having existed. That where such evidence rests on reputation such reputation must be distinctly of payments Benton, having been made under such a deed, and that those payments had their origin under an instrument made within time of memory; otherwise it will be evidence of a prescriptive payment. That although the Court had very properly relaxed in its practice, and did not now, as formerly, insist upon the production of the original instrument, yet they certainly expected that, in order to establish a real composition, the evidence should shew something that could distinguish it from a prescriptive payment. 74. In a subsequent case it was said, that where there has been a composition real, within time of memory, its commencement must be shewn, though it is not necessary to produce the deeds under which it took place. Presumptions are admitted in this, as in other cases; and the existence of such deeds may be inferred from other evidences. It is not necessary that the consent of all the parties should be by the same deed; this may 206. 3 Swan. frequently not happen. In the case of the King, who consents by letters patent it never can take place. But that a composition real could not be supported by evidence of immemorial payment. Sawbridge v. cote v. Main C. C. 217. and 2 Hen. Bl. 263. 4 Price, 143. 2 Bos. & Pul. 347. tion de modo 75. A prescription de modo decimandi, usually called a modus, II. Prescripis where an immemorial custom has established a particular decimandi. manner of tithing, different from the general way of taking tithes in kind; and the circumstances which are necessary to make a good and sufficient modus are laid down by Sir W. Blackstone and Doctor Burn. 1 Sim. & Stu. 415. 76. It is probable that every modus had its commencement by deed; because a composition for tithes can never become a modus, unless the patron and ordinary be parties thereto, or it be confirmed by them. But a modus may be prescribed for, without Bacon v. Smith, producing the deed by which it was created; for, wherever there has been a constant annual payment for time immemorial, it shall be intended that such payment had a proper commencement. And in the case of hemp, flax, and madder, it has been stated that a modus is established by act of parliament. (a) (a) [By the stat. 2 & 3 Will. 4. c. 100. it is enacted, that all prescriptions de modo decimandi, and to any exemption or discharge of tithes by composition, real or otherwise, shall in all claims for tithes in kind by the King or any other lay persons, (not being corporations sole) or by any body corporate of many, be valid, upon evidence shewing, in case of claim of a modus decimandi, the payment or render of such modus, and, in cases of claim to exemption or discharge, shewing the enjoyment of the 12 East. 33. 464. 2 Jac. & Wal. III. Or de non decimando. 1 Turn. 250. Cro. Eliz. 511. Hard. R. 315. Hertford v. Leech, W. Jones, 387. 4 Rep. 44 a. 77. A prescription de non decimando is a claim to be entirely discharged from tithes, and to pay no compensation for them. This may be a privilege annexed either to the person holding the lands; or to the lands themselves. 78. The King being persona mixta, is not only capable of having tithes, but may also prescribe to be discharged from the payment of tithes; therefore, lands lying within a forest, and in the hands of the King, do not pay tithes, although they are within a parish. But this privilege only extends to the King's lessee, not to his feoffee. 79. Spiritual persons, or corporations, being capable of having tithes in pernancy, may prescribe to be discharged generally; so that no tithe shall be paid of their lands, nor any recompence for them. Besides, it is a maxim of law, that ecclesia decimas non solvit ecclesiæ; and a spiritual person may prescribe de non decimando, for himself, his farmers, and tenants, and also for his Crouch v. Frier, copyholders. For, by this means, it is to be presumed that the spiritual person has greater fines and rents. Cro. Eliz. 784. See also stat. 3 & 4 Will. 4. c. 27. s. 29. 80. The rector or parson of a parish is not liable to the payment of tithes to the vicar, nor the vicar to the rector; and a lay rector is also exempted from paying tithes to the vicar out of the glebe, as long as he holds it in his own hands; but upon the death of the spiritual or lay rector, or of the vicar, his executor is liable to the payment of tithes out of the growing crop. 81. A prescription de non decimando may also be annexed to land without payment of tithes, money, or other matter in lieu thereof, for the full period of thirty years next before the time of such demand; unless in the case of claim of modus decimandi, actual payment or render, differing in amount or quality or quantity from the modus claimed, or, in case of claim to exemption, payment of tithes, or other matter in lieu thereof, shall be shewn to have taken place at some time prior to such thirty years, or it shall be proved that such modus claimed, or such enjoyment was had by agreement, by deed or writing; and if such proof in support of the claim shall be extended to sixty years before the demand, the claim shall be indefeasible; unless it can be proved that such modus was made and enjoyment had by consent, by deed, or agreement in writing. And with respect to claims for tithes in kind by any archbishop, bishop, dean, &c. or other corporation sole, spiritual or temporal, the period for limiting such claims is the whole time during which two persons in succession shall have held the office or the benefice, in respect of which such claims shall be made, and for not less than three years after the appointment of a successor; but if such period be less than sixty years, then for so many years as will make up sixty years. There are some exceptions to the operation of the act, ss. 3, 4. 6.] the land itself, though in the possession of lay persons: but this can only arise from the following circumstances. Spiritual persons, or corporations, were always capable of hav- 2 Comm. 32. ing their lands totally discharged of tithes by various ways.1. By real composition. 2. By papal bulls of exemption. 3. Hob. 309. By unity of possession; as when the rectory of a parish, and the lands in the same parish, both belonged to a religious house, those lands were discharged of tithes by this unity of possession. 4. By prescription; having never been liable to tithes, by being always in spiritual hands. 5. By virtue of their order; as the Knights Templars, Cistercians, and others; whose lands were privileged by the Pope with a discharge of tithes. 82. These exemptions from tithes would have ceased upon the dissolution of the abbeys, and the lands become again subject to tithes, were it not enacted by the statute 31 Hen. 8. c. 13. s. 21., (a) that all persons who should come to the possession of the lands of any abbey then dissolved should hold them free and discharged of tithes, in as large and ample a manner as the abbeys formerly held them. And Sir W. Blackstone says, that from 2 Comm. 32. this original have sprung all the lands, which, being in lay hands, do at present claim to be tithe-free. his lands to have been such abbey lands, and also immemorially discharged from tithes, by any of the means before mentioned, this is now a good prescription de non decimando. But he must must shew both these requisites; for abbey lands, without a Lamprey r. special ground of discharge, are not discharged of course; neither will any prescription de non decimando avail in total discharge of tithes, unless it relates to such abbey lands. For, if a man can shew 83. This privilege only extended to the lands of the religious houses, quamdiu propriis manibus excoluntur; not when in the occupation of their lessees or farmers. And it was formerly held that this exemption applied only to those persons who had an (a) This statute applies only to the greater monasteries. It has been held that lands which were held discharged of tithes before time of memory, by one of the alien priories, and coming to the Crown on their suppression, were granted to one of the greater monasteries, in whose hands they remained till the dissolution, were no longer exempt. Penfred v. Groome, decree of the Exchequer, affirmed by the House of Lords. See 2 Jac. and Walk. 534., and Page v. Wilson, 513. In the latter case the lands had been granted to the monastery by the grantee of the Crown. In both cases the lands had not paid tithes since the dissolution.-Note to former edition. R. 291. Rooke, Amb. Smith, |
