Bracton: Thorne Edition: English. Volume 2, Page 163

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Volume 2, Page 163

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[001] because right and seisin come together, rightfully or wrongfully. But what if both
[002] present, that is, the first donor [A] and the second donee [C]? The first donor [A]
[003] must be preferred because of the seisin from which he has not withdrawn; nor could
[004] the second donor [B] bestow on another more than he himself had, that is, nothing¹
[005] except the right without seisin; and though the assignee should wish to vouch him
[006] to warranty he could not warrant to him more than he gave or could give him,
[007] nor could he defend him in the seisin of a presentation the assignee did not have.²
[008] Suppose that a gift or assignment has been made before there is seisin of the presentation,
[009] and in some way, as by escheat or in some other, the tenement and the
[010] advowson revert to the donor [B]; the church then falls vacant and both present,
[011] that is, the first donor [A] and the first donee [B]. The first donor must still be
[012] preferred because of his seisin of the presentation, from which he has not withdrawn.
[013] And if the donee [B] produces his charters of gift they will be void with
[014] respect to the right to present since whatever he [B] had he conferred upon his own
[015] feoffee, and he has now begun to possess anew by another causa and through another
[016] rather than by the first causa of gift and through his own feoffor. And that a gift
[017] made of an advowson ought not be valid before the donor is in possession of the
[018] presentation is proved in the roll of Michaelmas term in the eighth and the
[019] beginning of the ninth years of king Henry in the county of Bedford, [the case]
[020] of John of Trailly and the prior of Newnham, an assise of darrein presentment
[021] concerning the third part of the church of Southill,³ where the prior replied to the
[022] assise that Walter of Trailly, ancestor of the aforesaid John, gave the advowson
[023] of that third part to Fawkes de Breaut‰ and that the same Fawkes gave it to his
[024] [the prior's] house by his charter; but because the prior acknowledged that the
[025] same Walter made the last presentation and that Fawkes had never presented, it
[026] was held that John recover his seisin on the seisin of Walter his ancestor. To the
[027] same intent [in the roll] of the eyre of Martin of Pateshull in the county of
[028] Worcester in the fifth year of king Henry,⁴ where it is said that if an advowson is
[029] given to one who gives it over before he has presented the gift will be invalid,
[030] because the last donee has⁵ no warrantor. The gift of an advowson is invalid if
[031] the donor never had seisin of the presentation nor any portion of the manor or
[032] tenement to which the advowson was appurtenant, as among the pleas which
[033] follow the king in the twenty-second year of king Henry in Shropshire, [the case of]
[034] Godfrey de Gamages,⁶ where the same Godfrey said coram rege that a certain
[035] ancestor of his gave his father certain land with the advowson

Notes

1. ‘nihil,’ as V

2. Infra iii, 219

3. Not in B.N.B.; C.R.R., xi, no. 2780; infra iii, 228

4. Not in B.N.B.; cf. Selden Soc. vol. 53, no. 992; infra iii, 228

5. ‘habet’

6. B.N.B., no. 1224: illustrates the point that one cannot transfer a seisin he does not have, but no advowson involved