Bracton: Thorne Edition: English. Volume 2, Page 162

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Volume 2, Page 162

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[001] [the case] of Richard of Wike and the prior of Tywardray, an assise of darrein
[002] presentment concerning the church of Wike,¹ where a gift made of an advowson
[003] was invalid because the donor had never been in seisin of the presentation, nor had
[004] he any land in that vill to which the advowson could be appurtenant, despite the
[005] fact that there had been many confirmations by bishops and chief lords. An
[006] advowson must therefore be transferred with a corporeal thing, with the seisin of
[007] him who transfers or of one of his ancestors, and when a gift is so made, of the advowson
[008] and tenement, livery of the corporeal thing, that is, the tenement having
[009] been made, the donee at once begins to possess that tenement and to quasi-possess
[010] the right to present; but he will never have seisin until the church falls vacant so
[011] that he may then present. Hence if the gift is made to the donee alone, without his
[012] heirs, if a vacancy occurs in his lifetime he can present and use his seisin; if it does
[013] not, the presentation will remain with the donor; if he [the donee] gives it to another
[014] before there is a vacancy, the gift will be invalid, since he was not in seisin of the
[015] presentation; it will remain with the [first] donor. If the gift is made ‘to him and
[016] his heirs’ [and] the donee cannot present during his lifetime because no vacancy
[017] occurs, he nevertheless transmits the right to present to his heirs, near and remote,
[018] ad infinitum, on the seisin of his donor and warrantor as on the seisin of one of his
[019] ancestors. ²By virtue of the gift the donee is always in quasi-possession and is taken
[020] to use until he loses his seisin by non-use, that is, if through his negligence or acquiescence
[021] he allows the donor or another to present to the church when it falls vacant,
[022] in which case he will never recover, nor will his heirs, because the charter and gift
[023] will be empty without seisin.³ If before the church falls vacant, or before he has
[024] presented, the donee or his heirs give that advowson to another, with the tenement
[025] or without it, the gift will be ineffective, for though they transfer the right to present
[026] they do not transfer a seisin they do not have; that will always remain with
[027] the donor who last presented,⁴ unless the [original] gift was made ‘to the donee and
[028] his heirs or to whom he wishes to give or assign,’ for [then], because of the modus
[029] of the gift, donees and assigns will stand in the place of heirs.⁵ But if, when nothing
[030] is said of assigns, the donee or his heirs give or assign before they have seisin and
[031] the donee or assign presents when the church falls vacant, and, because of the
[032] negligence or acquiescence of the first donor,⁶ a clerk is admitted at their presentation,
[033] such donees or assigns will then begin to possess through the negligence
[034] and acquiescence of the others, and the gift will begin to be valid,

Notes

1. B.N.B., no. 1070; not in C.R.R., xii; infra iii, 228

2. New paragraph

3. Supra 159, infra 167, iii, 165, 168, 173, 177, iv, 318

4. Infra iii, 218-19, 227-8

5. Supra 159, infra 177

6. ‘donatoris’