[424] Monasteries. Warter Pr. Richal. Old Maulton Ab. St. Michael near Hull. Valle de Sancta Cruce in Clun. } T. W. Conq. 1226 6 0 Strata Florida in Cardi- ( Cist. or 7 At the time of the dissolution, the religious were discharged from payment of tithes three several ways; either 1. by the pope's bulls; or, 2. by their order [viz. of knights templars, &c.] as aforesaid; or, 3. by composition: which discharges would have vanished and expired with the spiritual bodies whereunto they were annexed, if they had not been continued by the special clause abovementioned (as it happened to those which were dissolved by the other statutes of dissolution, for want of such clause). And by the said clause also is created a new discharge, which was not before at the common law (5), that is, Unity of the possession of the parsonage and land titheable in the same hand: for if the monastery at the time of the dissolution, was seised of the lands and rectory, and had paid no tithes within the memory of man for the lands; those lands shall now be exempted from payment of tithe, by a supposed perpetual unity of possession; because the same persons that had the lands, having also the parsonage, they could not pay tithes to themselves. God. 383. Boh. 241. 248. (6) (5) Archbishop of Canterbury's case, 2 Rep. 46. Slade v. Drake, Hob. R. 297. (6) Button v. Long, Cro. El. 584. So if the lands were in lease for years, at the time of the dissolution, and the lessee paid tithes, the presumption arising from perpetual unity of possession is not destroyed: for quoad the abbot, the inheritance was discharged of tithes, and the king or his grantee holds it discharged as the abbot held it for the inheritance: and such lands are therefore tithe free. Porter v. Bathurst, Cro. J. 559. Cowley v. Keys, Gwm. 1308. Blackstone says, that spiritual persons or corporations were always capable of having their lands totally discharged of tithes by the above methods, among which he enumerates unity of possession without ascribing its origin to the above clause. Discharge by bull, composition, or order, must have been pleaded specially at common law whereas another discharge from tithe of lands of spiritual persons or corporations, viz. by Prescription, or having never been liable to tithes by being always But though by such union the persons so possessed were discharged from the payment of tithes, yet the lands were not absolutely discharged of the tithes for upon any disunion that might happen, the payment of tithes again revived (7), so that the union only suspended the payment, but was no absolute discharge of the tithes themselves. (8) And therefore such union is not to be pleaded as a discharge from tithes, but only as a discharge from the payment of tithes. Boh. 248. (9) And such union must appear to have had these four qualities: First, it must have been just; that is, claimed by right, and good and lawful title: and not by disseisin or other tortious, unjust, or unlawful act for such an union would not have been a good discharge within the statute. Secondly, it must have been equal; that is, there must have been a fee simple both in the lands and in the tithes; as well of the lands upon which the tithes are, as of the parsonage or rectory: for if those religious persons had held but by lease, that had not been such a unity as the statute intended. Thirdly, it must have been free; that is, free from the payment of any tithes in any manner: for if the abbots, or their farmers, or their tenants at will or for years, had paid any manner of tithes before the dissolution; it may be alleged as a sufficient bar to avoid the unity pleaded in discharge of tithes. Fourthly, it must have been perpetual, time out of mind, that such religious houses were endowed, and such religious persons [ 425 ] must have had in their hands both the rectory and lands united, perpetually, and without interruption, before the memory of man, or (as it seems according to the rule of the common law) before the first year of king Richard the first, discharged of tithes: for if by any records, or ancient deeds, or other legal evidence, it can be made to appear, that either the lands or the rectory came to the abbey since the said first year of king Richard the first, such union cannot be said to be perpetual. Boh. 250. And moreover, the lands of such houses dissolved as aforesaid, shall be free from the payment of tithes only so far, as they were free in the hands of the churchmen, namely, whilst they are in in spiritual hands, was allowed without any other reason, when it did not appear that tithes had ever been paid, because they were persons capable of such discharge. Slade v. Drake, Hob. R. 297. And evidence that the land of a spiritual farmer has never paid tithes is sufficient to prove the prescription. Nash v. Molins, Cro. El. 206. Clavill v. Oram, Gwm. 1355. This usage must have been constant, without interruption, perpetual, and immemorial, viz. from the time of Rich. I.'s return from the holy wars. (7) Benton v. Trott, Moor. 528. (8) Unity of possession did not extinguish tithes. See 30 H. 8. Dyer, 43. 32 H. 8. Br. Dismes, 17. (9) Henkin v. Gay, Bunb. 37. |