Holdsworth and Others v Fairfax and Another
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1834 |
| Date | 01 January 1834 |
| Court | Exchequer |
English Reports Citation: 5 E.R. 1169
COURT OF EXCHEQUER.
Mews' Dig. v. 23, 1249. S.C. 3 Cl. & F. 115.
[882] ENGLAND, COURT OF EXCHEQUER. roger holdsworth, john robson, robert S. thompson, and william wright,-Appellants; thomas lodington fairfax and the Reverend benjamin eamonson, Clerk,-Respondents [1834]. [Mews' Dig. v. 23, 1249. S.C. 3 Cl. & F. 115.] Under the powers created by the statute 17 Cha. 2. c. 3., F., by his will dated in 1671, gave all the tithes of hay, corn, grain, and all other tithes, great and small, of the parish of B., to H. F., his heirs, etc., to the use of a preaching minister, to be nominated by H. F. and his heirs. In 1716, T. F., the descendant and heir of H. F., conveyed the tithes, with other hereditaments, in trust for the payment of creditors ; and, upon a bill in equity filed by the creditors, they were sold under a decree of the Court, and in 1716 conveyed to R. F. "and J. H. (a trustee for R. F.), and their heirs, etc. in trust, as to the tithes of B., to the use of a preaching minister to be nominated by R. F. and his heirs. J. H. survived R. F. and became seised of the legal estate, and his descendant and heir in 1826 conveyed the tithes of B., etc. to T. L. F., the heir of T. F. upon the original trusts. Before this conveyance (in 1821), T. L. F., who then had the equitable estate in the tithes of B., appointed E. the preaching minister of B. Held, upon a bill in equity by T. L. F. and E., against occupiers of lands in B., for an account of tithes, that the title derived under the will of F., and the decree of sale for payment of debts, was good in equity, and the appointment made by T. L. F., before he had the legal estate, valid : Held, also, under the circumstances stated in the following report, that the tithes of corn and hay were due, except as to certain farms covered by a modus. The Respondents, in Easter Term, 1826, exhibited their bill of complaint against the Appellants, and Matthew Todd (since deceased), Henry [883] Dotchen, and John Powell, thereby stating that Thomas Lord Fairfax being, at the time of making the codicil therein after mentioned, and thenceforth to the time of his death, seised or otherwise well entitled, for an estate of inheritance in fee simple, of or to all the tithes of corn, grain, and hay, and all other tithes whatsoever, great and small, arising, growing, and renewing within the parish of Bilborough * and the titheable places thereof, duly made and executed a codicil to his last will, in such manner as the law requires for rendering valid de'vises of freehold estates, which codicil was dated the llth of November, 1671, and thereby gave to Richard Stretton, his domestic chaplain, all his tithes of Bilborough and of Sandwash, in the county of York, for the term of threescore years, if Richard Stretton should so long live, provided he supplied the office of preaching minister there, or procured one to do it; and the remainder in fee of the said tithes he gave to Henry Fairfax, of Oglethorp, therein named, and his heirs and assigns for ever, to the use and behoof of a preaching minister, there to be nominated by the said Henry Fairfax and his heirs for ever; and that the said testator shortly afterwards died, without having altered or revoked his said codicil, and thereupon the said Henry Fairfax (who, by the death of Thomas Lord Fairfax without issue male, became Lord Fairfax), became seised of the said tithes and premises, subject to the said estate therein of the said Richard Stretton, and continued so seised to the time of his decease, and afterwards died intestate as to the said tithes and premises; and that the same thereupon descended to his eldest son and heir-at-law [884] Thomas Lord Fairfax, who died so seised thereof to the uses aforesaid ; whereupon the same descended to his eldest son.and heir-at-law Thomas Lord Fairfax, who. * Bilbrough or Bilburgh. 1169 VIII BLIGH N. S. HOLDSWORTH V. FAIRFAX [1834] being, so seised thereof to the uses aforesaid by indentures of lease and release, bearing date respectively the 13th and 14th of July, 1716, for the considerations therein mentioned, did grant and convey to Robert Fairfax (the great grandfather of the Respondent), Thomas Lodington Fairfax, and John Hardwick, their heirs and assigns, (amongst other hereditaments,) all the said tithes of Bilborough and of Sandwish, otherwise Sandwash, and the advowson or patronage, donation, and nomination of a preaching minister to the parish church of Bilborough aforesaid, to hold unto and to the use of the said grantees, their heirs and assigns for ever, in trust, nevertheless, as to the said tithes of Bilborough and Sandwish aforesaid, to the use and behoof of a preaching minister, there to be nominated by the said Robert Fairfax and his heirs ; and that afterwards by an indenture, dated the 18th of March, 1716 (in which the said last-mentioned indentures of lease and release were recited), the said John Hardwick did acknowledge the consideration thereof to have been paid by the said Robert Fairfax out of his own monies, and that the name of the said John Hardwick was used therein in trust only for the said Robert Fairfax and his heirs ; and the said John Hardwick covenanted to convey the premises therein mentioned accordingly, so as such conveyances and assurances for and concerning the said tithes should be to the use of a preaching minister, there to be nominated by the said Robert Fairfax and his heirs ; and that the said Robert Fairfax died in or about the year [885] 1725, leaving the said John Hardwick him surviving; and that the legal estate of the said tithes and premises became solely vested in the said John Hardwick; and that by divers mesne conveyances and assurance's and other acts in the law, and ultimately by indentures of lease and release, dated respectively the 19th and 20th March, 1826, the release being made between William Parkins (who was the eldest son and heir-at-law of Richard Parkins and Catherine his wife, the great niece and heiress-at-law of the said John Hardwick), of the first part, the Respondent Thomas Lodington Fairfax, of the second part, and Jonathan Gray, gentleman, of the third part, for the considerations therein mentioned (amongst and together with other things), the said tithes of Bilborough and Sandwish, otherwise Sandwash, were conveyed by the said William Parkins unto the Respondent Thomas Lodington Fairfax, his heirs and assigns for ever, upon the same trusts, nevertheless, as to the said tithes of Bilborough and Sandwish, otherwise Sandwash, as the said William Parkins held the same, and as were mentioned in the said in part stated indenture of release, of the 14th of July, 1716 ; and that the said advowson or patronage, donation and nomination, of a preaching minister to the parish church of Bilborough aforesaid, previously to the year 1821, descended upon and became and was then vested in the Respondent Thomas Lodington Fairfax, the heir-at-law of the said Robert Fairfax ; and that the Respondent Benjamin Eamonson then was, and had been since the year 1821, the minister of the said parish church, to which he was, in the said year 1821, duly nominated by the said Respondent Thomas [886] Lodington Fairfax, and licensed by the Archbishop of York, and had ever since officiated in the said church as minister thereof, by performing service therein ; and, during all the time aforesaid, the Respondent Benjamin Eamonson had been and then was entitled under the trust aforesaid to receive all and every the tithes arising, growing, and renewing within the said parish of Bilborough, and the titheable places thereof; and that all the said Defendants then were, and ever since, and also long previously to the appointment of the Respondent Benjamin Eamonson as minister as aforesaid, had been respectively the occupiers of divers farms, lands, and tenements in the said parish of Bilborough, consisting respectively of many acres of arable, pasture, and meadow lands ; and that certain payments, by composition or agreement, had, at times, been accepted and taken by the predecessors of the Respondent Benjamin Eamonson, the former ministers of the said church, or some of them, from the occupiers for the time being of the said several farms, lands, and tenements in satisfaction of the tithes thereof ; and that the Reverend Thomas Lambe, the immediate predecessor of the Respondent Benjamin Eamonson, and who was for many years the preaching minister of the said church, accepted and received from such occupiers respectively a composition of 5s. per acre, in...
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