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Agreement for the Sale of an Advowson, and also

for a Lease of the Tithes.

Obs. 1. The grant of an advowson during a vacancy, is void, quoad the next presentation, Grey v. Hesketh, Ambl. 268; but not as to the advowson itself, Barret v. Glubb, 2 Bl. 1052. So the sale of the next presentation is void by the Statute of Simony, and a contract for the sale of the next presentation, the parties at the same time knowing the incumbent to be at the point of death, is simoniacal, For v. Bishop of Chester; 2 B. & C. 655. So by the 12 Ann, st. 2, c. 12, if any clerk purchase for himself the next presentation, and is presented thereon, the next presentation is void.

2. If a church become vacant by the promotion of the incumbent to a bishoprick, the king, by his prerogative, has the next presentation; provision is, therefore, frequently made for this event, in the contract for the purchase of an advowson.

to £

to £

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Purchase

and Sale

of an Advowson

Vendor agrees to

make out

a title; and to convey advow

son.

Articles, &c. (see p. 15) Witness That in conson of the sum of £ - to be pd to, &c. (vendor) by, &c. (purchaser) at the time hnaftr mentd he the sd (V ́) for himself, &c. [Agreement to make out a title, see p. 52] and at the request costs, &c. on or before, &c. well, &c. convey, &c. unto, &c. (P) his, &c. All that advowson donation right of patronage and presentation of in and to the rectory of afd with the rights members and apts and the inhance thof free from all incumbs whatsr charged upon or in any wise affecting the sd advowson or the incumbent thof save and except the land-tax amounting to £-per ann. a tenth amounting per ann. synodals and procurations amounting And whas the present rector or incumbent of the sd rectory of hath completed the yr of his age Now these Presents furr Witness and it is hby decld In case the and agrd by and betn the pties hto That in case of the church be death resignation cession deprivation or relinquishment vacant, to of the sd () on or before the day of next ensu- nominee of ing he the sd (V) his hrs, &c. shall and will duly present such parson to the sd rectory as the sd (P) shall nominate And that if the presentation should devolve on the crown in consequence of the present incumbent being promoted to a bishoprick before the day of then and in such case so much of the purchase-money as shall be equal to the value of the next presentation to be ascertained by two indifferent psns to be apptd in the usual manner shall be returned by the sd (V) to the sd (P) (or, 'this contract shall not be affected thereby nor shall the sd (P) be entitled to any deduction out of the sd purchase-money,' as the case may be) And the To grant a sd (V) doth hby furr agree That upon paymt of the sd sum of £ as hnaftr mentd he the sd (V) shall and will at the request, &c.of the sd (P) grant unto the sd (P) a good and valid lease of all the tithes and compositions

present

the purcha

ser.

lease of

the tithes.

Sole of a for tithes belonging or paye to the sd rectory or the rector Boarding or patron in respect of the same and the tithe barn and School. glebe lds belonging to the sd rectory for and during the term of years to be completed from the

Covenant

that vendor shall repair barn and parsonage,

ac.

a curate;

and pay all taxes, &c.

day of last if the sd (V) should so long live or remain incumbent of the sd rectory at or under the yrly rent of paye on the day of in which lease so to be granted as afd shall be contained a covt on the part of the sd (V) inamly on the exon of the sd lease to the barn in good and tenantable repair and during put the continuance of the sd lease to keep the same barn and also the parsonage-house belonging to the same with the appts and also the chancel of the church of

afd in good and tenantable repair except such repairs as may be required in consequence of any voluntary and provide dilapidations by the sd (P) his exrs, &c. And also shall and will during the sd lease at his own expense provide a curate to perform the duties of the sd church of afd And it is furr agreed That in such lease it shall be provided that the ld-tax and all synodals procurations and tenths and all or. taxes rates assessments and payments in respect of the sd tithe barn and glebe lds shall be pd by the sd (V) and that it shall be lful for the sd (P) to deduct out of the sd annual rent all such sums of money as he shall pay on account of the sd ld-tax tenths synodals procurations and all or. rates and assessments whatsr And the sd (P) for himself his hrs, &c. doth hereby agree to pay the sd sum of £- upon the exon of the sd conveye and to accept the sd lease And that the conveye and the lease to be granted to the sd (P) and also the counterpart thof shall be prepared by him at his own costs and chas but that in all or. respects each of the sd pties shall pay the fees of his own counsel and the chas of his own solicitor In Witness, &c.

Purchaser agrees to pay purchase-mo

ney, accept lease,

and pay

expense of conveyance, &c.

Vendors

agree to as sign goodwill of the

school and the messuage;

Agreement to assign a Boarding - School, Lease of the
Premises, and Furniture.

Witness That for and to be pd on the day said (V) do hby agree

Articles of, &c. Betn (vendors) of, &c. of the one pt and (purchaser) of the or. pt in conson of the sum of £ of next ensuing they the to relinquish and assign All that the boarding-school conducted by them at and All that the messe or tent garden and preses where the same has been heretofore carried on and to exte on recpt thof a good and valid assnment in the law of the sd boarding-school and preses and also the indre of lease by which the sd

day of

day of

now

Sale of a
Boarding
School.

agrees to deration.

pay consi

(V) hold the same for the residue of the term then to come and unexpired but subject to the rent and covts thin reserved and contd togr also with the two policies of insurance whby the sd preses and the household fur- also policies niture goods and effects thin contd are insured from of insurfire And also shall and will pay all rent and taxes due ance. for the sd messe up to the sd ensuing And the sd (P) doth hby covt promise and Purchaser agree with and to the sd (V) that she the sd (P) shall and will on the sd well and truly pay to them the sd (V) the full sum of £― of lful, &c. as a premium or conson for the sd boarding-sehool messe, &c. and shall and will accept such assignmt thof resply as is hereinbefore mentd And it is hby mutually agrd Valuation. by the pties hereto that a valuation shall forthwith be made of the household furniture goods chattels linen fixtures and things which are in and upon the sd preses by two psns one to be chosen by the sd () and the or. by the sd (P) And the sd (P) doth hby agree to pay Purchaser unto the sd (V) cal mths after the sd day of agrees to

next ensuing the full amount at which the sd furni- pay the ture and effects shall have been valued In Witness, &c.

amount.

ANNUITY.

§ 1. An annuity is a yearly payment of a certain sum of money Definition, granted to another for life or years, or in fee. Co. Litt. 144. b. If a man seised of land grant a yearly rent, issuable out of the land to another, in fee-tail or for term of life, &c. with a clause of distress; this is a rent-charge. The principal difference between an annuity and a rent-charge is, the remedy which the law gives for the recovery of the arrears. If an annuity issue out of land, as it now most commonly does, the grantee has his election to bring a writ of annuity, and charging it upon the person, to make it personal, or to distrain upon the land so as to make it real. Co. Litt. 144, a. But he cannot have them both together, for if he recover by a writ of annuity, then the land is discharged of the distress; but if he distrain for the arrears, and avow the taking of the distress in a court of record, then is the land charged, and the person of the grantor discharged. Litt. s. 219. As few grants of annuities are without a covenant for payment expressed or implied, an action of covenant may, and now mostly is, brought for the recovery of the arrears when a distress cannot be made. When the grantor of an annuity wishes his person to be discharged, and his land charged, a clauseto that effect may be inserted in the deed. Litt. 220.

2. To make a good grant of an annuity, no particular technical mode of expression is necessary. If, therefore, a person intending to grant a rent-charge, do it in such a manner that it shall be void as a rent, it will be good as an annuity, for the words to perceive' or receive,' is a sufficient charge on the person of the grantor. I Roll. Abr. 227. 2 Vin. Abr. 507. [E]

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How granted. By the words' perceive' and ' receive.'

Annuity.

To whom granted.

Rentcharge not apportionable.

When an annuity or rent-charge goes to the heir.

When a wife
is bound by
grant by
her hus-
band.

Power of distress.

3. If a rent-charge be granted to a man and his heirs, he shall not have a writ of annuity against the heir of the grantor, although he has assets, unless the grant be for him and his heirs. Plowd. 457. Co. Litt. 144, b. But in the case of a corporation, which has a perpetual continuance, the successors will be bound, although not named. Harg. Co. Litt. 144, n. 2. If a man have a rent-charge to him and his heirs, issuing out of certain lands, and he purchase any parcel of those lands to him and his heirs, all the rent-charge becomes extinct, because it cannot be apportioned. Litt. s. 222. So likewise an annuity, if it were not made chargeable on the person, before the purchase. Dyer, 140. Gilb. Rents. 152. So a rentcharge, not being apportionable, if it be made payable half-yearly or quarterly, and the annuitant die in the interval between the days of payment, nothing is due for the time he lives, unless by express stipulation. Pearly v. Smith, 3 Atk. 260. Whether an annuity chargeable on the person only, and not on the lands, be subject to the same rule, appears to be doubtful. Edwards v. Countess of Warwick. 2 P. Wms. 176. To obviate all doubts, it is usual in grants of annuities, to insert a stipulation for the payment of the annuity for the intervening time that has elapsed between the last payment and the decease of the annuitant.

4. By the common law, if a rent be granted to a man and his heirs generally, and he die without devising the rent, and without an heir, the rent does not escheat, but sinks into the land. Butler's n. Co. Litt. 298, n. (2.) Some have supposed that the common law is so far altered by the Statute of Frauds, that an estate pur autre vie in a rent continues for the executors or administrators of the owner of the rent when it is not limited to his heirs; but the better opinion appears to be, that as the words of the statute, which give estates pur autre vie to executors or administrators, only extend to those cases in which there can be no occupant at common law, which in rents cannot be; therefore, if such an estate be limited to a man and his heirs, and he die without devising the rent, and without heirs, it seems that his executors or administrators would not be entitled to the rent, but it would sink into the land. Savory v. Dyer, Ambl. 139. Smartle v. Penhallow, 2 Ld. Raym. 1000. When, therefore, it is the grantee's intention that an annuity, or rent-charge, for the life of the grantor or the lives of nominees, should form part of his personal estate, it should be limited to him, his executors, administrators, and assigns, for a term of years, if the grantor, nominee, or nominees, or the survivor of them should so long live. Such an express li'nitation, however, does not appear to be necessary in the grant of a personal annuity pur autre vie, because it is not a freehold, but only a chattel, Savory v. Dyer, Ambl. 139. 1 Dick. 162; nor in a grant of an annuity or rent-charge out of a term of years, for this is good for so many years as the term continues, and is not determined by the death of the grantee. Cro. Eliz. 183. 7 Co. 25, a. 1 Roll. Abr. 831, pl. 3.

5. If a man be possessed of land for a term of years in the right of his wife, and grant a rent-charge and die, the wife shali avoid the charge, because she does not claim under her husband. But the husband's alienation of the term itself, or any part of it, binds the wife surviving. Hargr. Co. Litt. 184, a. n. 1. Butl. Co. Litt. 351,

a. n. 1.

6. Although the power of distress has, by different statutes, been extended to almost every case of rent in arrears, yet an express power of distress is absolutely necessary, to enable the grantee to distrain; for it appears, that where an annual sum is granted upon an incorporeal hereditament, the sum so reserved, although nominally a rent, is only a personal annuity. Co. Litt.

47, a. Dean and Chapter of Windsor v. Gower, 2 Saund. 302. So Annuity. likewise, in creating a rent for life or years to be issuing out of a chattel interest, this clause is equally necessary, because it appears to be a rule of common law, that notwithstanding any statute, a rent cannot issue out of a mere chattel interest. 7 Co. 23, 24.

7. A power of entry, as well as a power of distress, is usually Power of given to the grantee of an annuity, or rent-charge, or to his repre- entry. sentatives, in default of payment for a certain number of days. If this be limited by way of use, it takes effect from the Statute of Uses; but if in a grant of rent, to be issuing out of certain lauds, a proviso, condition, or covenant be inserted, that if the rent be in arrear, the grantee may enter; in that case, he or his assignee may enter by virtue of such proviso. Butl. Co. Litt. 203, a. n. (1.) But previous to such entry, there must be an actual demand on the last day, Butl. Co. Litt. 202, a. n. (1.), unless it be otherwise expressly stipulated. (As to the clauses of distress and entry, in the case of copyholds, see Grant of an Annuity secured on Copyholds.)

8. In order to make the person of the grantor, as well as his estate liable, it is usual to secure the payment of the annuity or rent-charge, either by a warrant of attorney to confess judgment, or by a bond, or by a covenant to pay, very frequently by a bond or covenant, as well as a warrant of attorney; but where there is a covenant to pay, a bond does not add to the security, and is therefore a superfluous expense. When a warrant of attorney is taken, judgment ought to be entered up immediately. Wild v. Sands, 2 Stra. 7, 8. Cowie v. Allaway, 8 T. R. 257. But, in order to obviate the consequences of any omission so to do, a provision is mostly inserted, dispensing with the necessity to revive judgment.

9. An annuity may be redeemable, but it is not necessarily so; and it is not redeemable, unless there be a special provision to that effect in the deed granting it, Coverley v. Burrell, 5 B. & A. 257; which ought in no case to be omitted, where it is intended by the parties that it should be redeemed.

10. In the grant of an annuity, as in other cases, where a trust is raised by deed or will for sale of an estate, a clause that the receipts of trustees shall be sufficient discharges, is mostly inserted, and rarely ought to be omitted; as equity will in some cases bind purchasers to see the money applied according to the trust, if they be not expressly released by the authority of the trust. Sugd. V. & P. 525, 8th ed.

11. The grant of an annuity being a species of conveyance, an ad valorem stamp is required for an annuity deed, by the 55 G. III. c. 184. (As to an agreement to grant an annuity, assignment of an annuity, and memorial of annuity, see the subsequent precedents.)

Agreement to grant an Annuity.

Obs. 1. An agreement for the grant of an annuity is sometimes entered into, for the purpose of completing the transaction at some future period, and may be entered into on the part of a feme covert, with respect to her independent property. Essex v. Atkins, 14 Ves. 542. Such an agreement need not to be memorialized, as it is not within the 53 G. III. c. 14. Jackson v. Leaver, 3 B. C. C. 605. Nield v. Smith, 14 Ves. 491; but it is frequently required by way of precaution.

Warrant of attorney, bond, and covenant to

pay.

Clause that receipts of trustees shall be valid discharges.

A femme

covert may enter into an agreement to

grant an annuity. Specific

2. Specific performance of an agreement to grant an annuity, as a consideration for the purchase of an estate, will be enforced, performalthough the vendor die previous to the completion of the contract. ance when Mortimer v. Capper, 1 B. C. C. 156. Jackson v. Leaver, 3 B. C. C. enforced.

605.

G

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