Infra, § 92.

Nagle v. Ed

wards, 3 Anstr. 702.

Baron Clarke said he knew no case which deserved more consideration; for though the authorities against such a prescription were very great, yet the reason of them grew weaker every day. Before the Reformation all tithes were ecclesiastical; and a layman could have tithes by way of discharge only, by the grant of patron, parson, and ordinary. Since that, there were other ways, both of having tithes, and of being discharged from them. Since tithes had been in the hands of lay impropriators, many persons had purchased discharges for their particular lands; yet if such grants were lost by the common fate of things, those persons must lose the benefit of their purchases; and that must often happen, though they were enrolled, or any other way was taken to preserve them. Very few records of the church were extant; and it would be very hard that time, which strengthens all other rights, should weaken this. It seemed very extraordinary that a layman might prescribe, upon the presumption of a grant, for the portion of tithes in the soil of another, even against the rector of the parish, and yet could not prescribe for the tithes of his own land in the same way. If therefore he should concur in this opinion, it would be merely from the force of authority; for he thought that the reason of the thing was strong against it. He allowed that, in general, authorities ought to prevail in law; because great inconveniences and confusion would arise from overturning established rules of property. But in this particular case, the inconveniences and confusion of property would be much greater from pursuing those resolutions than from overturning them.

89. The plaintiff sued in the Exchequer as lay impropriator of the parish of L. for tithe of hay and agistment. The defendant insisted, that from tithes of hay never having been paid to the rector, within memory, a conveyance of them to the landholder should be presumed.

Lord Ch. B. Macdonald said, the plaintiff having made out to himself a clear title as rector, the defendant insisted on exemption from payment of hay and agistment tithe, on the ground of never having paid these tithes. From non-payment he wished the Court to presume a grant or conveyance of these tithes from the lay impropriator. It was clear that, against an ecclesiastical rector, this defence could never be set up in any shape. Whether a lay impropriator should have the same benefit was at first doubted: but that point seemed at rest. Three successive decisions upon it had fully established that there was no difference between a lay and an ecclesiastical rector.

coe, 3 Anstr.

90. In a subsequent case of this kind, the same Petre v. Blenjudge said, "It is now established by many cases, too 945. firmly to be disputed, that mere non-payment is not, even among laymen, any answer to the demand of tithes. These determinations are perhaps to be lamented. I should have liked better to have found, in regard to tithes, the same principle of decision which regulates the title to every other lay fee. If non-payment for See ante, § 82. any length of time forms no presumption of a grant of note. the tithes; then the length of enjoyment, which in all other cases is the best possible title, serves only to weaken the claim of exemption from tithes, as the difficulty of tracing its origin is increased. In the present case it is hardly credible that the plaintiff's family have omitted for above two centuries to exert this right, from mere forbearance or negligence. Some other transaction probably took place between the parties, the memory of which is now lost. But the cases prevent us from deciding upon the ground of such a presumption."

Rose ". Calland, 5 Ves. 186.

91. Lord Loughborough appears to have been inclined to differ from these cases, and to hold that nonpayment alone might be set up as a defence to a claim of tithes by a lay impropriator: but Lord Eldon has de- Birney v. Harcidedly upheld them. And it appears to be now settled, vey, 17 Ves.

VOL. III.

And it

F

119.

Vide Tit. 31.

c. 2.

But long possession of a

portion of

title.

Fanshawv. Ro

therham, Gwill.

that a prescription de non decimando can no more be set up against a lay impropriator, than against a spiritual person; as such a prescription must have its origin at a time when the church was incapable of alienating its possessions. But the claim of a lay impropriator may be repelled by evidence of a grant of the tithes from some preceding lay impropriator.

92. It has been stated that portions of tithes were frequently severed from rectories before the council of tithes creates a Lateran; and therefore no claim can be made to them, but by persons deriving a title, either from the crown, or some ecclesiastical corporation, who had a power of alienation. It follows that there is a material difference between a prescription de non decimando, and a claim to a portion of tithes; for in the latter case, if the claim be supported by evidence of actual pernancy and enjoyment, for a long time, a court of equity will not interfere; but leave the parties to their legal remedy. 93. The plaintiff, as lay impropriator, brought his 1177. 1 Eden, bill for an account of tithes; the defendant insisted, by his answer, that he and they whose estate he had in the lands, whereof the tithes were demanded, had a title to the tithes. It was in proof in the cause, that the defendant and those under whom he claimed had been in possession above one hundred years, and several conveyances intervening, without any claim from the plaintiff or his ancestors; it was insisted that there had been a severance of the tithes from the rectory; or that there had been some grant or deed, whereby the plaintiff's ancestors, or those who had the right to the rectory, had exempted the defendant's estate from the payment of tithes.

276.

Lord Henley was of opinion that this by the grant became a lay fee; and the dispute, as between those entitled to the spiritual fee or rectory, must stand on the same foot, and be determined by the same law, as any other right or fee. In this case the plaintiff made no particular title at all; he would have the Court pre

sume that his right descended to him, but did not shew any one family settlement, &c. for a great number of years, (above forty) where this was mentioned; and yet he prayed the Court to interpose against a possession which had been in the defendant and his ancestors above a century. It was urged that the law says, caveat emptor: but equity says, teneat emptor, if he is a fair purchaser. The defendant appeared to him as a fair purchaser, there having been several intermediate conveyances, and possession having gone along with them for above one hundred and thirty years; and therefore equity would not interpose to disturb him. If the plaintiff had any title at law, he might pursue it. But equity would not interpose against a fair possessor, only because the plaintiff was afraid his title might fail at law. The bill was dismissed.

Gwill. 1174.

94. Doctor Scott, being rector of Simonburne in the Scott v. Ayrey, county of Northumberland, filed his bill in the Court of Exchequer for the tithes of corn and grain of a farm called Eal's farm. The defendants, the Ayreys, were owners of part of the lands, and claimed the tithes of Eal's farm. The question was, whether the plaintiff was entitled to the tithes of corn and hay of the lands of which the Ayreys claimed the tithes.

The Lord Ch. B. said-This was not a demand of tithe of land, which had hitherto paid no tithe; and that the defence was not a prescription de non decimando. In all such cases the rule had been, that a person setting up an exemption from the payment of tithes must shew the particular ground of exemption. If that was not shewn, the defence amounted to no more than a mere non-payment of tithes, which, however long, was no defence: but in the present case the plaintiff claimed the tithe of land, of which tithe had been constantly taken; for although a part of the land had not actually paid tithe, it had been no otherwise exempt, than because the tenant of that part had been tenant of the tithe of all. The tithes having

been actually paid, the next question was, how they had been paid; they had been paid from particular lands in the nature of a portion of tithes. It appeared that in the year 1608 these tithes were in the possession of the family of Ridley; that they were sold in 1683 to one Whitfield; that in 1708 they were conveyed to Green in fee. They were afterwards mortgaged; and the devisee of the mortgagee purchased the equity of redemption, and devised to persons under whom the defendants claimed. For one hundred and seventy years they had been the subject of sales, mortgages, and devises, as other property; and had always been considered in the same light as the other real property of the persons, who from time to time had claimed them. They were capable of being enjoyed by the persons who had enjoyed them; and the question was, whether a court of equity ought to interfere to take the possession from persons who had been in possession for so many years, with knowledge of the rector. did not appear how the Ridleys became entitled: but it appeared that, being in possession, they settled, mortgaged, and devised, these tithes as their own absolute property. If, notwithstanding this long possession, the plaintiff was legally entitled, he was not without remedy: but it was too much in a case of this kind for a court of equity to interpose, and after so long a possession, to take the property from the possessors, and decree the rector to be entitled to it. The court had been pressed to direct an issue: but there seemed no reason to interfere thus far. Whether the court directed an issue which adopted in some degree the plaintiff's demand, or left the plaintiff to pursue his legal remedy, he might make good his demand, if it was well founded. It was therefore not absolutely necessary for the court to interpose.

It

Mr. Baron Eyre said-The principal question in this case was, the defence set up by the Ayreys against the prima facie title of the rector, founded on a title set