Public Trustee v Duchy of Lancaster: CA 1927

The court was asked whether the conveyance of a farm out of which a tithe rentcharge issued carried with it, by reason of Section 63, the rentcharge itself.
Held: The farm and the tithe rentcharge were two separate hereditaments and express words would be necessary to pass the rentcharge. The intention of the 1836 Act was to keep the tithe rentcharge hereditament separate from the land out of which it issued.
Bankes LJ referred to Chapman v Gatcombe and said: ‘ general words such as those used in that case, ‘together with all the estate, right, title, interest . . of him W. Gatcombe therein or thereto or to any part or parcel thereof’, are insufficient to pass tithe rentcharge. And as the object of Section 63 of the Conveyancing Act 1881 was merely to do away with a necessity of using those general words and to treat every conveyance as if it contained them, that section does not carry the matter any further. It only enacts that the conveyance shall pass every interest etc. which the conveying party may have in ‘the property conveyed’ and for the reasons above given tithe rentcharge is not such an interest.’
Scrutton LJ said that a tithe was not regarded as an interest in the land in respect of which it was payable, ans: ‘. . It was called in the language of lawyers of that day [1836] a ‘collateral hereditament’ which was held by a different title from that of the land itself.’ He referred to Chapman v Gatcombe and said: ‘That being so Section 63 of the Conveyancing Act 1881 does not assist the Appellant. It merely renders it unnecessary any longer to include in a conveyance the long string of general words, ‘all the estate, right, title, interest,’ etc., that used to be known by the name of the ‘all estate clause’, and, in the absence of a contrary intention appearing, treats the conveyance as containing them. The result is that the conveyance of the lands of Chapel House Farm to the Duchy of Lancaster did not carry with it the rectorial tithe rentcharge, as that rentcharge was not an ‘interest in’ the land out of which it issued but something collateral to and independent of it.’ He noted that the relevant conveyance had there begun with a conveyance of physical land and continued:- ‘So far it is plain that the conveyance would not include tithe rentcharge. But it is said this tithe rentcharge is an ‘interest in the land’, and that by virtue of Section 63 of the Conveyancing Act 1881, the conveyance is to be read as if these words were written in it. Now it is quite clear that before 1836 a conveyance of physical land with any number of general words added, such as ‘all the estate, right, property, interest, claim and demand’ in the land conveyed would not pass tithe, for the reason that tithe was a hereditament independent of and separate from the land on which it was charged and was not an interest in it or appertaining to it.’

Bankes LJ, Scrutton LJ
[1927] 1 KB 516
Law of Property Act 1925 63, Tithe Commutation Act 1836, Conveancing Act 1881 63
England and Wales
Still Good LawChapman v Gatcombe 1836
One separate hereditament cannot be appurtenant to another. . .

Cited by:
CitedHarbour Estates Limited v HSBC Bank Plc ChD 15-Jul-2004
The lease contained a break clause. The parties disputed whether the benefit of the clause was personal to the orginal lessee, or whether it touched and concerned the land, and therefore the benefit of it passed with the land.
Held: The . .

Lists of cited by and citing cases may be incomplete.

Land, Ecclesiastical

Updated: 16 November 2021; Ref: scu.263189