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stances, may safely complete his contract. But where proof of a dying without issue is essential to establish the title of the vendor, the lapse of no definite period can be depended on ; unless indeed the party were greatly advanced in life when last heard of, and was then unmarried or had no children, and twenty years or more have since intervened.

[*]CHAPTER XVI.

PRESUMPTIONS OF FACT CONTINUED.

Of presumed Grants of Portions of Tithes, of Advow

sons, Faculties, Rents, Commons, Markets, Tolls, Lights, Ways, and Water-courses.

I. As to portions of Tithes.-Claims which are in derogation of the common-law right of rectors to tithes must, to be effectual, rest on one of the four following grounds; a real composition; a modus ; a prescriptive privilege de non decimando; or a title in pernancy to a portion(1).

A portion of tithes is a right to part of the tithes of a particular parish existing in some other person than the incumbent. Portions were originally held only by monasteries and abbeys, and by spiritual corporations secular, as bishops, deans and chapters, and parsons incumbent of other churches. But in sever

(1) A grant of land will never be presumed from lapse of time, unless it be so great as to create the belief that it was actually made, or unless the facts and circumstances of the case show that the party to whom it is presumed to have been made, was legally or equitably entitled to it. Jackson v. Moore, 6 Cowen, 706. See Jackson v. Dieffendorf, 3 Johns. 269. Jackson v. Gansvoort, 3 John. 109, Hurst's lessee v. M'Neil, 1 Wash. C. C. 70.

al instances they are now the property of laymen. On the dissolution of the monasteries, the portions which were held by the religious houses came with the rest of their possessions to the crown, and afterwards for the most part passed by grants from the crown into the hands of private individuals. Alienations from spiritual corporations of the secular order, before the [*]restraining statutes of Queen Elizabeth(a), are another cause to which the fact of portions being resident in lay hands may be ascribed ; and a third is found in alienations from lay rectors, since the time when the rectories thus held became impropriate. The two latter possible modes of deriving a title in private persons to portions of tithes, enable the courts on proper occasions to admit the doctrine of presumption in questions affecting the right to property of this nature. As to claims founded in the title of a dissolved monastery, it is obvious that their validity must be established on other grounds: the principle of presumption cannot be resorted to : for whether or not the portion claimed belonged to such monastery may always be ascertained as a matter of fact, by reference to the general survey of the lands, &c., of the religious houses made on or soon after their dissolution.

The cases in which a presumptive title to a portion of tithes has been considered effectual, may be divided into two classes ; first, where there is an actual pernancy and receipt of tithes issuing from the land of a stranger; and secondly, where the claim is made by the owner of the land in which the tithes arise. In

(a) 13 Eliz. c. 10; 13 Eliz. c. 20.

these two classes of cases, the nature and strength of the evidence necessary to create the presumption varies materially

With respect to the former cases, it is evident that as by one or other of the means before mentioned there [*]may be a proper legal title to a portion of tithes, and that as the very circumstance of an actual adverse

pernancy and receipt of them, denying in the most distinct and palpable form the common-law right of the incumbent, provokes the assertion of that right, if the title to the portion in question be ill-founded, the acquiescence of the incumbent in repeated acts of ownership by the party claiming title to the portion, raises in favour of the latter, as in all other cases of real property, a fair and legitimate presumption of right. It has accordingly been decided in several cases, that where an adverse perception or receipt of the tithes of a particular district, whether consisting of certain titheable articles only (a), of the whole tithes(6), or of a fractional part of them(c), has been had uninterruptedly for a long period of time, it shall be presumed in favour of the pernor, as well against a spiritual(d) as a lay rector(e), that such tithes have been properly severed from the rectory to which of common right they appertained ;-more especially if

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(a) Scott v. Airey, Gwil. 1174; 625 ; Foxcroft v. Parris, 5 Ves. Kinaston v. Clark, 5 T. R. 265, 221. n. ; Lady Dartmouth v. Roberts, (d) Scott v. Airey; Edwards v. 16 East, 334.

Lord Vernon ; Williams v. Ba(6) Edwards v. Lord Vernon, con ; ubi supra. See also 17 Ves. 3 Gwil. 1177, n. ; Williams v. Ba- 126. con, 1 Sim. & Stu. 415.

(e) Fanshaw v. Rotherham, 1 (c) Strutt v. Baker, 2 Ves. jun. Eden, 276; Gwil. 1177.

ancient conveyances or wills corroborate the supposition. The severance, unless repelled by counter testimony(a), is, in cases where the parsonage remains in the hands of the church, referred to a period antecedent to the disabling [*]statutes in the reign of Queen Elizabeth(b), and where the parsonage is impropriate, to a time subsequent to its passing into lay hands by grants from the crown(c).

In the first class of cases, then, long adverse possession alone is sufficient to raise a presumption of title. But in cases comprised in the second class, where the owner of the land sets up a title to the tithes issuing out of that land, long possession alone is not sufficient. It was very early established as a rule of law, that rights belonging to the church could not be bound or prejudiced by time. Nullum tempus occurrit ecclesiæ(1). In consequence of this rule (which still obtains) a mere retention or non-payment of tithes, for however long a time it may have continúed, cannot as against a spiritual rector be adduced in support of an alleged title to retain them. By virtue of the statute 31 Hen. 8, c. 13, lay impro

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(a) As to which evidence see Baker; Foxcroft v. Parris ; ubi Lady Dartmouth v. Roberts ; ubi supra; also Oxenden v. Skinner, supra.

Gwil. 1513. (6) See Scott v. Airey ; Lady (c) Fanshaw v. Rotheram, ubi Dartmouth v. Roberts; Strutt v. supra.

(1) Nullum tempus occurit reipublice. Birch y. Alexander, I Wash. 34. Wimmo's exr. v. Commonwealth, 4 H. & M. 57. Johnson v. Irwin, 3 Serg. & Rawle. 292. Stoughton et al. v. Baker et al., 4 Mass. R. 528. Kemp v. The Commonwealth, 1 Hen. & Munf. 85. Den v. Herring, 1 Murph. 414. Bagley v. Wallace, 16 Serg. & Rawle. 285. United States v. Hoar admr.

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