1836. CHAPMAN บ. GATCOMBE. pars, which we call tithes, is an ecclesiastical inheritance collateral to the estate of the land, and, of their proper nature, due only to an ecclesiastical person by the ecclesiastical law:" and although from other parts of that report it seems to have been considered that they are an incorporeal hereditament, and as such may, where the intention is clear, pass under the word hereditaments; yet, the deed now under consideration appears to me to contain no words calculated to evince an intention that they should pass under the word hereditaments. The conveyance is of a house and lands, followed by the general words that are to be found in all conveyances-" together with all houses, outhouses, edifices, buildings, ways, paths, passages, waters, watercourses, easements, profits, commodities, advantages, emoluments, hereditaments, and appurtenances whatsoever to the said premises belonging or in any wise appertaining"-the words "to the said premises belonging &c.," overriding "hereditaments," as well as all the other general words. The question is whether, consistently with the decided cases, we can hold the word hereditaments, which here means no more than appurtenances, to convey the tithes; for, as to the words which follow-" and the reversion &c., and all the estate, right, title, interest, use, trust, possession, freehold, inheritance, reversion, possibility, property, challenge, claim, and demand whatsoever, either at law or in equity, of him, the said W. Gatcombe therein or thereto, or to any part or parcel thereof"-and that have been so much relied upon, it seems to me that they carry the meaning no further, relating merely to property of the like description with that which is the subject of the conveyance. Let us see what was the situation of the parties. It appears, that, in 1815, the grantor purchased the inheritance of the tithes in question. At the time of the execution of the deed, in 1816, therefore, he was the owner of the inheritance of the land and of the inheritance of the tithes. That such unity of possession does not operate an extinguishment of the tithe, is clear from an anonymous case in Moore, 50: so separate and distinct in its nature is the tithe from the land, that, in that case, where a manor and parsonage which had belonged to an abbot came into the hands of the crown, and the crown granted the parsonage to one and twenty acres of the manor to another, it was held that this unity of possession in the crown did not extinguish the tithes. If these tithes were not extinguished, they can only be held to have passed provided the words of the grant are sufficient for that purpose. Parkins v. Hynde, Cro. Eliz. 161, is a distinct authority to shew that tithes must be conveyed by a specific description. There, the parson of Babington leased all his glebe land to Mills for ninety-nine years, rendering 13s. 4d. rent for all exactions and demands. The successor sued for tithes. Wray, J., says: "The parson shall have tithes against his lessee, and the words here shall be no discharge; for, these tithes are not things issuing out of the land, but collateral, and due jure divino; and therefore cannot be discharged but by special words. But, if the words had been, as well for tithes growing and arising upon the lands, as for other demands, then peradventure it had been a good discharge; but, as the case is, it cannot be intended by any words that he reserved the rent for tithes." In Carey's case, 1 Leon. 281, where a man granted situm rectoriæ cum decimis eidem pertinent., habend. situm prædict. cum suis pertinentiis for twenty years, and the first grantee died within the term-the tithes not having been expressly named in the habendum, the question was whether the grantee should have them for life only: the court said: "The tithes are parcel of the rectory, and therefore, for the nearness between them, the rectory and the tithes, the tithes upon the matter pass together with the site of the rectory for the term of twenty years." But, in a subsequent case, Grubbam v. Grate, 1 Roll. Rep. 150, Palm. 1836. CHAPMAN v. GATCOMBE. 1836. CHAPMAN v. GATCOMBE. 94, 1. Ea. & Y. 313, it was held that tithes did not pass by a grant of totam illam capellam de Asherton fundatam in ecclesiâ de Barwicke, cum pertinentiis, &c. That case shews how very close and nice the distinction has been held between what words will and what will not pass property of this description. Then comes the case of Bone v. The Bishop of Norwich, Winch, 72, 1 Ea. & Y. 331, where it was held that tithes cannot pass as appurtenances to a grange, for they are of several natures; except, as Winch said, that the grange be the glebe, for, if it be, then the rectory may pass by that name. That case governs the present; for, the words of this deed do not extend beyond appurtenants, and tithes clearly cannot pass by such a description. Upon reading Lord Redesdale's judgment in Norbury v. Meade, I do not take it to be an authority that, upon the construction of the conveyance then under consideration, the tithes passed: he seems to leave it open whether there might not be a presumption of some other deed which did pass them; for, I observe he says: "It appeared from the evidence that both the rectory and the lands came to Sir John Packington, and that Sir John Packington, having the rectory, granted the lands. When he conveyed the lands, could he not convey them as he held them? Is it probable that he conveyed them subject to tithes, holding them himself not subject to tithes, though he might, if he thought fit, have made a separate demise of the tithes and of the land. That circumstance alone seems to afford ground of presumption, and a very strong ground of presumption, especially coupled with this, that there is no evidence of the persons who afterwards derived title from Sir John Packington to the rectory impropriate having ever received or ever claimed tithes of these lands." The cases are too strong to allow us to arrive at any other conclusion than that the tithes in this case did not pass by the conveyance in question. The rule for setting aside the verdict and entering a nonsuit must therefore be discharged. PARK, J.-I am of the same opinion. All the authorities (with the single exception of Lord Redesdale's opinion in Norbury v. Meade) are uniform to shew that the tithes in question did not pass under the conveyance of 1816. "Hereditaments," occurring in the description of the property conveyed, might, under certain circumstances, pass tithes; but clearly not where the word occurs in the place it occurs in here. GASELEE, J.-The cases are all one way, except Norbury v. Meade, which looks a little adverse. BOSANQUET, J.-I am of the same opinion. The question is whether the tithes passed under the deed of 1816. Norbury v. Meade, which has been much relied on on the part of the defendant, proceeded on the presumption of a grant. There, the land and tithes had originally been in the crown, and had been granted by the crown to Sir John Packington, and he conveyed to the party under whom the defendant claimed by a deed containing nothing to shew that tithes were intended to pass under it; but there was evidence to shew long enjoyment of the tithes by the defendant, and those under whom he claimed. Under these circumstances, there was reasonable ground, not for presuming that Sir John Packington intended by that deed to convey the tithes, which would be giving an effect to the deed larger than the words of it warranted, but for presuming the existence of some other deed under which they passed. That is the interpretation I put upon the words of Lord Redesdale. Beyond question, the inheritance of the tithes is distinct from the inheritance of the land. Where the word "hereditaments" occurred in a deed to lead or to declare the uses, accompanied by words of local description of land out of which the tithes arose, it was the practice of this court (on motions concerning fines and recoveries) to hold tithes to pass under "hereditC c c 2 1836. CHAPMAN v. GATCOMBE. 1836. CHAPMAN บ. GATCOMBE. aments." But, here, the meaning of the word is narrowed by those that follow-to the said premises belonging or appertaining. The tithes did not belong or appertain to the land. The other general words which follow carry the matter no further. Upon the whole I am of opinion that the court would not be justified in holding that the tithes in question passed by this deed. Rule discharged. Thursday, Jan. 28th. Testator by his annuity upon JAMES v. SALTER and Another. REPLEVIN for chattels distrained in a dwelling will charged an house, farm, and lands, in the parish of Uffculme, in the county of Devon, on the 17th March, 1835. certain lease hold premises, with a declaration, that, in case the leasehold specified should prove insufficient to discharge the annuity, the deficiency should be made up out of the rents and profits of his freehold premises. The annuitant The defendants in their avowry and cognizance stated that the dwelling-house, farm, land, and premises in which &c., theretofore, to wit, on the 10th November, 1804, were the freehold premises of one John Salter, since deceased, late father of the defendant Salter, and continued so until and at the time of the decease of the said John Salter; that the taking the said goods and chattels as in the declaration mentioned, was done under and in pursuance of a certain power contained in the last will and testament of the said John Salter deceased, bearing date the feeehold for arrears of the third August, 1800, for raising and paying a certain the annuity. In replevin :- annuity, yearly rent, or sum of 307. given and bequeathed Held, that the in and by the said will to the defendant Salter, and charged will, even as against the an- and chargeable on the said freehold premises of the said nuitant claiming under it, John Salter deceased; and because the sum of 870%., part did not disof the said annuity, yearly rent, or sum of 30%., accruing pense with due at Christmas Day last, was behind and unpaid for the space of twenty days after the said Christmas Day, distrained upon proof that the testator died possessed of the leasehold. An annu itant claiming under a will, who has never received the annuity, is not barred by the 3 & 4 Will. 4, c. 27, ss. 2, 3, although more than twenty years have elapsed since the right to the annuity first accrued to him. |