ticular facts and circumstances of a case to ascertain the true nature and character of a contract. I need not here repeat the facts of this case; I hope they are such as have not often happened, and are not likely soon to happen again; and our judgment will be an authority only for a case of similar circumstances, and not for any case of a mere expectation of early vacancy from the apparent ill health, age, or infirmity of an incumbent, of which expectation the fulfilment may be long delayed or wholly frustrated. For we consider the present to be, as I have before said, the case of a church full in name and form only, but vacant in substance and reality; and known so to be to the contracting parties, who dared not to exhibit their contract in its true shape, but endeavoured to cloak and mask it by the resemblance of a conveyance more extensive in its form, but limited in its operation, by their mutual agreement to the sole object of their contract, which was an immediate and single presentation to a benefice about which the parties treated as if it was then actually vacant. For these reasons the judgment of the court below is to be affirmed. Hence it is simony to sell the next presentation of a living when the incumbent is known to be in extremis, though the purchase is not made with a view to present a particular clerk; and though the purchaser has no particular clerk in view when he makes the purchase, especially if there was no treaty for the purchase till the incumbent was known to be extremis; and if the parties resorted as an expedient to a conveyance, which does not thereby represent the bargain between the parties, the presentation is simoniacal, though made by the purchaser, because such presentation is indirectly a presentation by the seller. (1) It has been held, that the purchase of the next avoidance, if made by a parent in the absence of his son, is not a corrupt contract (2); but the doctrine of that case has been since contradicted (3), and probably would be again if disputed. an advowson Although the purchase of the next presenta- Purchase of tion to a church, when the incumbent is in when incuma dying state, is simony, and the purchase of bent in a an advowson, the church being actually void, is dying state. simoniacal and void, as far as respects the then vacancy (4); yet in a case already named, it seems to have been decided that the purchase of an advowson in fee simple, at a period when the (1) Per Mr. Justice Bayley. (2) Smith v. Shelburne, Cro. El. 685. (8) Winchcomb v. Pulleston, Noy's R. 25. () Walker v. Hammersly, 3 Lev. R. 116. Wolferston incumbent was in a dying state, was not simony. Thus, where one having notice that the incumbent of a living was on his death bed, and that it was uncertain whether he would live over the night, purchased the advowson in fee, and the incumbent died the next day, and the purchaser presented his clerk on that avoidance, Chief Justice De Grey said, he was not able to doubt upon the question. An advowson was a temporal right, not indeed jus habendi, but jus disponendi. The exercise of that right was by presentation. The right itself was a valuable right, therefore an advowson was held to be assets in case of lineal warranty. It was real assets in the hands of the heir; and the trustee or mortgagee of an advowson was bound to present the clerk of the cestui que trust, or mortgagor. Thus far it was a valuable right, and properly the object of sale; but the exercise of this right was a public trust, therefore ought to be void of any pecuniary consideration, either in the patron or presentee. It could not, it ought not to produce any profit. It was not vested in a guardian in socage, nor was he accountable for any presentation made during the infancy of his ward, What was or was not simony depended on the statute 31 Eliz. which did not adopt all the wild notions of the canon law, but had defined it to be a corrupt agreement to present. No conveyance of an advowson could be affected by that act, unless so far as it affected the immediate presentation; therefore the sale of an advowson, the church being actually void, was simoniacal and void in respect to the then present vacancy. But it had never been thought that to purchase an advowson merely with the prospect, however probable, that the church would soon become void, was either corrupt or simoniacal; though, by the common law, if a clerk, or stranger with the privity of the clerk, contracted for the next avoidance, the incumbent being in extremis, it was held to be simoniacal. The present case was the purchase of an advowson in fee. No privity of the clerk appeared. The church was not actually void, but in great probability of a vacancy; which, however, was by no means equivalent to a certainty. The judges would go beyond every resolution of their predecessors to determine this to be simony. (1) immediate Where the incumbent of a living and owner Sale of adof an advowson agrees with a person for the sale vowson and of the advowson, and for the immediate resigna- resignation tion to the bishop, who refuses to accept it, by incumanother agreement is then entered into between the same parties, for the sale of the advowson (1) Barrett v. Glubb, 2 Black. R. 1052. only without any contract for the resignation, and at the same time, by a separate agreement, the incumbent grants him a lease of the tithes for ninety-nine years, if he, the incumbent, the grantor should live so long, under which lease the grantee receives the profits until the incumbent's death. The incumbent presented by the crown dies, when the grantee claims the right to present, to which the heir of the grantor objects, and states that the second contract for the sale of the advowson and the lease of the tithes of the same date, being for the purpose of carrying the former simoniacal contract into effect, was also simoniacal and void; it was held, that whether the second agreement was simoniacal or not, the illegality, if any, extended only to the next presentation, and that, therefore, the crown having presented for one turn, the grantee had a good title to the advowson, and a right to present on the vacancy. Though the conveyance of an advowson in fee is in itself legal, yet if it be made for the purpose of carrying a simoniacal contract into execution it is void, as to so much as goes to effect that purpose, and if the sound part cannot be separated from the corrupt, it is void altogether. (1) (1) Greenwood v. The Bishop of London, 1 Marsh. R. 5 Taunt. R. 746. 292. |