Young v Yonge
| Jurisdiction | England & Wales |
| Judgment Date | 22 July 1842 |
| Date | 22 July 1842 |
| Court | High Court of Chancery |
English Reports Citation: 49 E.R. 680
ROLLS COURT
[523] clarke v. yonoe. young v. yonge. May 26, 28, July 22, 1842. A confirmed award under the Tithe Commutation Act is final as between the tithe-owners and tithe-payers, but does not exclude from further investigation a case between the tithe-owners themselves, in which there was, before the award, a just title to tithes, which by accident and mistake was not brought forward till after the award was made. Thus, by an award, made with the concurrence of A., the patron, the whole rent charge was made payable to B. the rector, A. being at the time entitled to one-half (])And see Cooper v. Day, 3 Mer. 154; Martin v. Drinkwater, 2 Beav. 215; Overt-nil v. Chirney, 1 Sim. 128; Burrows v. Cattrell, 3 Sim. 375; C'hatteris v. Young, 6 Mad. 30; 2 Buss. 183; Day v. Croft, 4 Beav. 561; and Cooknon v. Hancock, 1 Keen, 817, and 2 Myl. & Or. 606. JBEAV.M4. CLARKE V. YONGE 681 of the corn tithes, but ignorant of his rights. Held, that A. might have relief in this Court as against B. A. and B. were entitled to tithes in equal moieties. B. under mistake received the whple, a bill by A. against B. for his moiety was dismissed with costs. The principal question in this case arose out of the provisions of the Tithe Commutation Act.(l) The facts and evidence in the cause being very fully stated in the judgment of the Court, it is merely, necessary here to advert to them shortly. The Plaintiffs in the first suit were entitled to the advowson of the Rectory of Necton, and were also entitled, as impropriators, to a portion of the corn tithes, but they were ignorant of their rights in respect of the latter. The Defendant was, in 1838, appointed the rector of the parish, and, as such, was entitled to a portion of the corn tithes; but from the time of his collation he had received the whole. In 1840 an agreement was entered into, under the authority of the Act, between the " landowners " and the Defendant, the rector of the parish, for the commutation of the tithes; and the Plaintiffs, as owners of the advowson, had consented thereto. The tithes were thereby commuted for a rent charge of £905, payable to the rector and his successors. The agreement was afterwards confirmed by the Tithe Commissioners. [524] The Plaintiffs, afterwards discovering their title to a portion of the corn tithes, filed this bill against the rector and other parties to have their right to a moiety of the rent charge declared, &c. The first question was, as to the right of the Plaintiffs to any portion of the tithes before the commutation; and the second was, whether, by the terms of the Act, they were precluded from having any remedy in this Court. The Act in question had for its object to abolish the inconvenient practice of collecting tithes in kind, and to substitute a determinate money payment by way of rent charge, varying, from time to time, in amount with the current price of corn. This was to be effected either by a voluntary agreement between the " landowners " and " tithtowners " (sect. 17), or compulsorily by the Commissioners (sect. 36), and the Commissioners were empowered by the forty-fifth section, to hear and determine any question of right between the parties. The sections of the Act principally relied on in the argument were the twelfth, twenty-first, forty-fifth, fifty-second, sixty-first, and seventy-first. Mr. Pemberton, Mr. Boteler, and Mr. Eagle, for the Plaintiff's, after discussing the first question upon the evidence, proceeded to contend, as to the second point, that the Tithe Commutation Act was not intended, and did not in fact, bind the rights of parties, other than as between the tithe-owners and the landowners, except only in those instances where questions had arisen which hindered the Commissioners making their award, and which had been " heard and determined " by them under the forty-fifth section of the Act. That here there had been a mistake as to the Plaintiffs' right, and no question had ever arisen or been determined between the Plaintiffs and the Defendant. [525] That the seventy-first section preserved to all persons having any interest or claim to any tithes, or any charge or ineumbrance on the tithes, their rights against the substituted rent charge, and the Plaintiff's, in no way repudiating the commutation as between the " tithe-owner " and the " landowner," had a right to the ordinary jurisdiction of this Court to fix upon the rent charge an equity, which, under a mistake, the agreement had deprived them of. Mr. Kinderaley and Mr. E. Montague, for the Defendant the rector, after dealing with the first question, contended, as to the second question, that this Court had no jurisdiction to alter or modify the agreement confirmed under the seal of the Tithe Commissioners; that the Act made the award final, and precluded any such interference. The forty-fifth section enacts, " That if any suit shall be pending touching the right to any tithes, or if there shall be any question as to the existence of any modus (1) The 6 & 7 W. 4, g. 71, amended, &c., by the 7 W. 4 & 1 Viet, c. 69, the 1 & 2 Viet, c. 64, the 2 & 3 Viet. c. 62, and the 5 & 6 Viet. c. 54. R. II.-22* 682 CLARKE V. YONGE 5 BEAV. 526. or composition real, or prescriptive or customary payment, or any claim of exemption from, or non-liability, under any circumstances, to the payment of any tithes, in respect of any lands, or any kind of produce, or touching the situation or boundary of any lands, or if any difference shall arise, whereby the making of any such award by the Commissioners or Assistant Commissioner shall be hindered, it shall be lawful for the Commissioners or Assistant Commissioner to appoint a time and place in or near the parish, for hearing and determining the same; and the decision of the Commissioners or Assistant Commissioner shall be final and conclusive on all persons subject to the provisions hereinafter contained." [526] The fifty-second section provides for the" confirmation of the award, and proceeds, "and every such confirmed award shall be binding on all persons interested in the said lands or tithes." The sixty-sixth section is positive, it provides, "That no confirmed agreement, award, or apportionment shall be impeached after the confirmation thereof, by reason of any mistake or informality therein, or in any proceeding relating thereunto." They argued that the Act, therefore, made the award final, and that it could not be impeached "by reason of any mistake." That the Plaintiffs claimed wholly by a title adverse to that of the Defendant, and that the case was not like one between a trustee and his cestui qiie trust. Mr. Turner and Mr. P. L. Foster, for the Bishop of Norwich. Mr. Pemberton, in reply. There is a marked difference...
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