toft, (25) croft, (26) or the like, nothing else will pass, except what falls with the utmost propriety under the term made use of; but by the name of land, which is nomen generalissimum;(27) every thing terrestrial will pass.(h)

CHAPTER III.

OF INCORPOREAL HEREDITAMENTS.

AN incorporeal hereditament is a right issuing out of a thing corporate (whether real or personal) or concerning, or annexed to, or exercisable within, the same. (a)(1) It is not the thing corporate itself, which may consist in lands, houses, jewels, or the like; but something collateral thereto, as a rent issuing out of those lands or houses, or an office relating to those jewels. (2) In short, as the logicians speak, corporeal hereditaments are the substance, which may be always seen, always handled: incorporeal hereditaments are but a sort of accidents, which inhere in and are supported by that substance; and may belong or not belong to it, without any visible alteration therein. (3) Their existence is merely in idea and abstracted contemplation; though their effects and profits may be frequently objects of our bodily senses. (4) And

(h) Co. Litt. 4, 5, 6.

(a) Ibid. 19, 20.

cum pertinentiis. Carden v. Tuck, Cro. Eliz. 89. For this purpose the word messuage seems formerly to have been thought more efficacious than the word house. Thomas v. Lane, 2 Cha. Ca. 27. S. P. Keilway, 57. But the subtlety of such a distinction has been since disapproved. Doe v. Collins, 2 T. R. 502. And when a man departs with a messuage cum pertinentiis, even by feoffment, or other common-law conveyance, not only the buildings, but the curtilage and garden, (if any there be,) will pass. Bettisworth's case, 2 Rep. 32. Hill v. Grange, 1 Plowd. 170, a.; S. C. Dyer, 130, b. A fortiori, in a will, although lands will not pass under the word appurtenances, taken in its strict technical sense, they will pass if it appear that a larger sense was intended to be given to it. Buck v. Nurton, 1 Bos. & Pull. 57. Ongley v. Chambers, 1 Bingh. 498. Press v. Parker, 2 Bingh. 462.-CHITTY.

(25) When land is built upon, the space occupied by the building changes its name into that of a messuage. If the building afterwards falls to decay, yet it shall not have the name of land, although there be nothing in substance left but the land, but it shall be called a toft, which is a name superior to land and inferior to messuage. Hill v. Grange, I Plowd. 170.-CHITTY.

(26) Croft is a small enclosure near to the homestead.--CHITTY.

(27) [The most general name.]

(1) I Washburn on Real Property, 36 (5 ed. 1887). Willard on Real Estate and Conveyancing, 189 (2 ed. 1885). I Pingrey on Real Property, 25, 101 (1895). In Virginia, with the exception of annuities, it would be difficult to imagine any case of an incorporeal hereditament arising out of personalty. I Lomax's Digest of the Laws of Real Property, 510 (1839).

The plea of right of way raises a question of title in the easement claimed, and easements are real estate, at common law. 2 Waterman on Trespass, 445, 479 (1875).

(2) This shows that the idea was entertained of incorporeal rights annexed to corporeal chattels, as well as of those rights which savored only of real estate. I Schouler's Personal Property, sect. 11 (2 ed. 1884).

An Act vested certain property in a harbor in commissioners and empowered them to levy certain duties on ships entering or leaving the haven, or loading or unloading in the roads. These duties were held not an interest in or affecting land. In re Christmas. Martin v. Lacon, 33 Ch. Div. 332, 339 (Eng. 1886).

(3) I Schouler's Personal Property, sect. II (2 ed. 1884). 2 Ballard's Real Property, sect. 521, p. 587 (1893). Pingrey on Real Property, 101 (1895).

(4) I Barbour's Rights of Persons and Property, 299 (1890). A condition, the benefit of which may descend from an ancestor to his heir, is an incorporeal hereditament; so also a right of reverter can only be regarded as an incorporeal hereditament. The right of a party to have the water of a stream or water-course flow to or from his lands or mill over the land of another is an incorporeal hereditament. Wyatt v. Irrigation Co., 18 Colo. 307 (1893).

indeed, if we would fix a clear notion of an incorporeal hereditament, we must be careful not to confound together the profits produced, and the thing, or hereditament, which produces them. An annuity, for instance, is an incorporeal hereditament: (5) for though the money, which is the fruit or product of this annuity, is doubtless of a corporeal nature, yet the annuity itself, which produces that money, is a thing invisible, has only a mental existence, and cannot be delivered over from hand to hand. So tithes, if we consider the produce of them, as the tenth sheaf or tenth lamb, seem to be completely corporeal; yet they are indeed incorporeal hereditaments: for they, being merely a contingent springing right, collateral to or issuing out of lands, can never be the object of sense: that casual share of the annual increase is not, till severed, capable of being shown to the eye, nor of being delivered into bodily possession. (6)

*21]

Incorporeal hereditaments are principally of ten sorts; advowsons, tithes, commons, ways, offices, dignities, franchises, corodies or pensions, annuities, and rents. (7)

I. Advowson is the right of presentation to a church, or ecclesiastical benefice. Advowson, advocatio, signifies in clientelam recipere, the taking into protection; and therefore is synonymous with patronage, patronatus: and he who has the right of advowson is called the patron of the church. For, when lords of manors first built churches on their own demesnes, and appointed the tithes of those manors to be paid to the officiating ministers, which before were given to the clergy in common, (from whence, as was formerly mentioned, (b) arose the division of parishes,) the lord, who thus built a church, and endowed it with glebe or land, had of common right a power annexed of nominating such minister as he pleased (provided he were canonically qualified) to officiate in that church, of which he was the founder, endower, maintainer, or, in one word, the patron. (c)(8)

This instance of an advowson will completely illustrate the nature of an incorporeal hereditament. It is not itself the bodily possession of the church and its appendages: but it is a right to give some other man a title to such

(b) Book i. page 112.

(c) This original of the jus patronatus, [The right of patronage] by building and endowing the church,

appears also to have been allowed in the Roman empire. Nov. 26, t. 12, c. 2. Nov. 118, c. 23.

(5) Of course, our author meant to speak of an annuity granted to a man and his heirs, not of an annuity for life, which in no sense of the word can be called an hereditament. The word is no doubt often inserted in grants for life or years; but then it is only with reference to some subject which is matter of inheritance. Smith v. Tindal, 11 Mod. 90. -CHITTY.

(6) Goodeve's Modern Law of Real Property, 325 (1891). Wadsworth v. Buffalo Hydraulic Assn., 15 Barb. 83, 91 (N. Y. 1853). West River Bridge Co. v. Dix, 6 How. 507 (U. S. 1847) in Myers on Vested Rights, 522 (1891).

(7) Dove v. Dove, 18 U. C. C. P. 424, 429 (1868). Boone's Law of Real Property, sect. 2 (1883). I Pingrey on Real Property, 101 (1815). 1 Lomax's Digest of the Laws of Real Property, 511 (1839). Of these, commons, easements, rents and franchises pertain to the United States. The others do not now, if they ever did, exist here. Tiedeman on Real Property, sect. 588 (2 ed. 1892). Commons, as understood in England, are not known to the American law as things of which an estate can be predicated, and annuities are but claims of a personal nature. 2 Washburn on Real Property, 284 (5 ed. 1887).

In the United States there are no advowsons, titles, dignities, nor corodies, commons are rare, offices rare or unknown, and annuities have no necessary connection with land. But there are other incorporeal hereditaments not named in the list, as remainders and reversions, dependent on a particular estate of freehold, easements of light, air and the like, and equities of redemption. 1 Pingrey on Real Property, 25, 26 (1895).

(8) Turpin v. Locket, 6 Call, 113, 131 (Va. 1804). An advowson is, in fact, but a mere trust, or right of nomination to a benefice, which cannot be legally sold to the intended incumbent. Trustees of Dartmouth College v. Woodward, 4 Wheat. 518 (U. S. 1819). Myers on Vested Rights, 522 (1891).

[*22

bodily possession. The advowson is the object of neither the sight, nor the touch; and yet it perpetually exists in the mind's eye, and in contemplation of law. It cannot be delivered from man to man by any visible bodily transfer, nor can corporeal possession be *had of it. If the patron takes corporeal possession of the church, the churchyard, the glebe, or the like, he intrudes on another man's property; for to these the parson has an exclusive right. The patronage can therefore be only conveyed by operation of law, by verbal grant, (9) either oral or written, which is a kind of invisible mental transfer: and being so vested it lies dormant and unnoticed, till occasion calls it forth: when it produces a visible corporeal fruit, by entitling some clerk, whom the patron shall please to nominate, to enter, and receive bodily possession of the lands and tenements of the church.

Advowsons are either advowsons appendant, or advowsons in gross. Lords of manors being originally the only founders, and of course the only patrons, of churches, (d) the right of patronage or presentation, so long as it continues annexed to the possession of the manor, as some have done from the foundation of the church to this day, is called an advowson appendant: (e) and it will pass, or be conveyed, together with the manor, as incident and appendant thereto, by a grant of the manor only, without adding any other words. (f) (10) But where the property of the advowson has been once separated from the property of the manor by legal conveyance, (11) it is called an advowson in gross, or at large, and never can be appendant any more; but it is for the future annexed to the person of its owner, and not to his manor or his lands. (g)

Advowsons are also either presentative, collative, or donative: (h) an advowson presentative is where the patron hath a right of presentation to the bishop or ordinary, and moreover to demand of him to institute his clerk, if he finds

(9) The late learned Vinerian professor, Mr. Wooddeson, has taken notice of this inaccuracy, and has observed that "advowsons, merely as such, [i. e., in gross,] could never, in any age of the English law, pass by oral grant without deed." 2 Woodd. 64. Lord Coke says expressly that "grant is properly of things incorporeal, which cannot pass without deed." I Inst. 9. But before the Statute of Frauds, 29 Car. II. c. 3, any freehold interest in corporeal hereditaments might have passed by a verbal feoffment, accompanied with livery of seisin. Litt. 59. And by such a verbal grant of a manor, Mr. Wooddeson justly observes, before the Statute, an advowson appendant to it might have been conveyed. But he who has an advowson or a right of patronage in fee may by deed transfer every species of interest out of it,-viz., in fee, in tail, for life, for years, -or may grant one or more presentations.-CHRISTIAN.

(10) Goodeve's Modern Law of Real Property, 344 (1891).

(11) For instance, if the manor to which an advowson is appendant be conveyed away in fee simple, excepting the advowson, or, vice versa, if the advowson be conveyed away without the manor to which it was appendant, the advowson becomes in gross. Fulmerston v. Stuard, Dyer, 103, b. If, upon partition between two coparceners, a manor be allotted to one, and an advowson appendant thereto to another, the advowson becomes, for a time at least, severed from the manor; but if, by the death of one coparcener, without issue, the two estates become reunited by law, the advowson which was once severed is now appendant again. Sir Moyle Finch's case, 6 Rep. 64, b. Hartop v. Dalby, Hetley, 14. The dictum in the text, therefore, which intimates that an advowson which once becomes in gross can never again be appendant, must be qualified. See Gibson's Codex, 757. And our author could not mean that a temporary severance, by a lease for life or years of a manor, with the exception of an appendant advowson, will have the effect of totally destroying its appendant qualities: the contrary doctrine has been established. Hartox v. Cock, Hutt. 89, Jenk. Cent. 310, pl. 91. And where several parties have a right to nominate and present to a church in turns, the advowson may be appendant for one turn, and in gross for another. Illisfield case, Dyer, 259, a. pl. 19.-CHITTY.

him canonically qualified; and this is the most usual advowson. (12) An advowson collative is where the bishop and patron are one and the same

person; in which case the bishop cannot present to himself; but he *23] does, by the one act of collation, or con*ferring the benefice, the whole

that is done in common cases, by both presentation and institution. (13) An advowson donative is when the king, or any subject by his license, doth found a church or chapel, and ordains that it shall be merely in the gift or disposal of the patron; subject to his visitation only, and not to that of the ordinary; and vested absolutely in the clerk by the patron's deed of donátion, without presentation, institution, or induction.(i) This is said to have (i) Co. Litt. 344.

(12) The right of presentation is the right to offer a clerk to the bishop, to be instituted to a church. Co. Litt. 120, a. 3 Cruise, 3. All persons seised in fee, in tail, or for life, or possessed for a term of years of a manor to which an advowson is appendant, or of an advowson in gross, may present to a church when vacant. Although this is a right considered of great value, as a provision for relations, a pledge of friendship, or, what is its true use and object, the reward of learning and virtue, yet the possession of it never can yield any lucrative benefit to the owner, as the law has provided that the exercise of this right must be perfectly gratuitous. The advowson itself is valuable and salable, but not the presentation when the living is void. I Leon. 205. Dartmouth College v. Woodward, 4 Wheaton (U. S.) 518, 697 (1819), in Meyers on Vested Rights, 527 (1891). Therefore, the mortgagor shall present when the church is vacant, though the advowson alone is mortgaged in fee, for the mortgagee could derive no advantage from the presentation in reduction of his debt. 3 Atk. 599. Mirehouse, Adv. 150, 151. So, though the assignees of a bankrupt may sell the advowson, yet, if the church be void at the time of the sale, the bankrupt himself must present the clerk, (Mirehouse, 156;) and if an advowson is sold when the church is void, the grantee cannot have the benefit of the next presentation; and it has been doubted whether the whole grant is not void, (Cro. Eliz. 811. 3 Burr. 1510. Bla. Rep. 492, 1054. Amb. 268;) though probably there would be no objection to the grant of an advowson, though the church is vacant, if the next presentation be expressly reserved by the grantor, especially as it has been decided that a conveyance of an advowson, though it may be void for the next presentation, yet may be good for the remaining interest, when it can be fairly separated from the objectionable part. 5 Taunt. 727. I Marsh. 292. An advowson in fee in gross is assets in the hands of the heir, (3 Bro. P. C. 556;) but it is not extendible under an elegit, because a moiety cannot be set out, nor can it be valued at any certain rent towards payment of the debt. Gilb. Exec. 39. 2 Saund. 63, f.

He who has an advowson or right of patronage in fee may, by deed, transfer every species of interest out of it, viz., in fee, in tail, for life, for years, or may grant one or more presentations. The right of presentation descends by course of inheritance from heir to heir, as lands and tenements, unless the church become vacant in the lifetime of the person seised of the advowson in fee, when the void turn, being then a chattel, goes to the executor, unless it be a donative benefice, and in that case the right of donation descends to the heir. 2 Wils. 150. If, however, the patron presents and dies before his clerk is admitted, and his executor presents another, both these presentments are good, and the bishop may receive which of the clerks he pleases. Co. Litt. 388, a. Burn, E. L. tit. Advowson. Mirehouse on Advowsons, 139, where see in general the right of presentation. See further as to presentation by joint-tenants and tenants in common, 2 Saund. 116, b. Where the same person is patron and incumbent, and dies, his heir is to present, (3 Lev. 47. 3 Buls. 47;) but such patron and incumbent may devise the presentation. I Lev. 205. 2 Roll. Rep. 214. 6 Cruise, Dig. 21. Mirehouse, 70. But, as we have seen, an advowson in gross will not pass by the word "lands" in a will, though it will be comprehended under the terms tenements" " and "hereditaments." Ante, 16, n. 2.

The remedy for the infraction of the right of presentation is an action of quare impedit, in which, although we have seen that no profit can be taken for presenting the clerk, yet the patron, whose right of patronage is injuriously disturbed, recovers two years' value of the church if the turn of presentation is lost. 3 Cruise, 17, 18. The particulars of the action of quare impedit will be considered, post, 3 book, 242 to 253. When the bishop refuses without good cause, or unduly delays, to admit and institute a clerk, he may have his remedy against the bishop in the ecclesiastical court. 3 Cruise, 17. As to any remedy for the clerk at law, see 13 East, 419. 15 East, 117.-CHITTY.

(13) Of the collative church the bishop is patron, because he is quasi the founder of that, having built it himself, or been principally instrumental in procuring it to be built, or applied to the purpose of religion. Godwin v. Lunan, 1 Jeff. (Va.) 96 (99) 1771.

been anciently the only way of conferring ecclesiastical benefices in England; the method of institution by the bishop not being established more early than the time of Archbishop Becket in the reign of Henry II.(k) And therefore though Pope Alexander III.(7) in a letter to Becket, severely inveighs against a prava consuetudo,(14) as he calls it, of investiture conferred by the patron only, this however shows what was then the common usage. Others contend that the claim of the bishops to institution is as old as the firs planting of Christianity in this island; and in proof of it they allege a letter from the English nobility to the pope in the reign of Henry the Third, recorded by Matthew Paris, (m) which speaks of presentation to the bishop as a thing immemorial. The truth seems to be, that, where the benefice was to be conferred on a mere lay man, he was first presented to the bishop, in order to receive ordination, who was at liberty to examine and refuse him: but where the clerk was already in orders, the living was usually vested in him by the sole donation of the patron; till about the middle of the twelfth century, when the pope and his bishops endeavored to introduce a kind of feodal dominion over ecclesiastical benefices, and, in consequence of that, began to claim and exercise the right of institution universally as a species of spiritual investiture.

However this may be, if, as the law now stands, the true patron once waives this privilege of donation, and presents to the bishop, and his clerk is admitted and instituted, the advowson is now become forever pre- [*24 sentative, and shall never be donative any more. (n) For these exceptions to general rules, and common right, are ever looked upon by the law in an unfavorable view, and construed as strictly as possible. If therefore the patron, in whom such peculiar right resides, does once give up that right, the law, which loves uniformity, will interpret it to be done with an intention of giving it up forever; and will therefore reduce it to the standard of other ecclesiastical livings. (15)

II. A second species of incorporeal hereditaments is that of tithes; which are defined to be the tenth part of the increase, yearly arising and renewing from the profits of lands, the stock upon lands, and the personal industry of the inhabitants: (16) the first species being usually called predial, as of corn,

(k) Seld. Tith. c. 12, 22. (1) Decretal, l. 3, t. 7, c. 3.

(14) [An erroneous practice.]

(m) A. D. 1239.
(n) Co. Litt. 344. Cro. Jac. 63.

(15) The contrary is held by a later authority than the authorities referred to by the learned judge; in which it was declared that, although a presentation may destroy an impropriation, yet it cannot destroy a donative, because the creation thereof is by letterspatent. 2 Salk. 541.-CHRISTIAN. 3 Salk. 140. Mirehouse, 26. It may here be observed, that when an incumbent is made a bishop, the right of presentation in that case is in the king, and is called a prerogative presentation; the law concerning which was doubted in Car. II.'s time, but in the time of king William it was finally determined in favor of the crown. 2 Bla. R. 770.-CHITTY.

Advowsons do not exist in the United States. The first amendment to the constitution provides that "Congress shall make no law respecting an establishment of religion." Nor is there any provision for the establishment of religion in any of the States. The policy of this country is religious freedom; and as a rule pastors and other church officials are chosen by the congregations.

(16) The definition proposed in the text is not strictly accurate. The faulty part of the definition seems to be the supposition that tithe consists, in all cases, of the tenth part of the increase yearly arising and renewing. This is not correct, even as to predial tithes, universally; and to mixed and personal tithes it does not at all apply. See the 4th ch. of Toller on Tithes.

Wood is one of the instances to show that predial tithe may be payable in respect of an article of which the renewal is not annual. Silva cædua is tithable when it is felled; and between the falls several years commonly (and a great many years not unfrequently) intervene. Page v. Wilson, 2 Jac. & Walk. 523. Walton v. Tryou, I Dick. 245. Chichester v. Sheldon, Turn. & Russ. 249.-CHITTY.