Bracton: Thorne Edition: English. Volume 2, Page 164

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Volume 2, Page 164

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[001] of the church and it was later proved that the same ancestor never had seisin,
[002] and so the gift [was held] void, though the same Godfrey and his father had subsequently
[003] been in seisin. To the same intent [in the roll] of Easter term in the tenth
[004] year of king Henry, in the county of Leicester, an assise of darrein presentment
[005] between Walter of Rideware and the prior of Dudelegh,¹ where the same Walter
[006] took nothing by his assise because the earl of Ferrers, who gave the manor to which
[007] the advowson was appurtenant to the aforesaid Walter, had never presented to
[008] that church. And to the same intent [in the roll] of Michaelmas term in the ninth
[009] and the beginning of the tenth years of king Henry, an assise of darrein presentment
[010] between the Prior of Lewes and Adam of Newmarket concerning the church
[011] of Hatfield,² where the same Adam recovered his presentation on the seisin of his
[012] grandfather on his maternal side. The case is this: the grandfather of the same
[013] Adam etc.³ [On this matter there is more below [in the portion on] the assise of
[014] darrein presentment;⁴ it is superfluous here or there.] ⁵It seems that the right
[015] of advowson may be transferred to another by itself, without a corporeal thing,
[016] and like a servitude be quasi-possessed⁶ until vacancy occurs, and then, by use
[017] and presentation, retained, [For it is not essential, so it seems, that like a servitude⁷
[018] it always cleave to the estate or tenement in which it inheres, since it may inhere in
[019] the church, as built of timber and stone, which is why it is called the advowson of
[020] such church,⁸ ⁹and thus if the church is given without the tenement the advowson
[021] may still be transferred.] as where,¹⁰ when the advowson is given by itself and when
[022] the church falls vacant the donee presents, he will retain the right of advowson by
[023] seisin and it will thus cease to be among the appurtenances of the estate.¹¹ Thus it
[024] appears that if he who had given the advowson (whether before or after vacancy) then
[025] gives the estate with all its appurtenances, expressly with the advowson of the
[026] church, the gift will be invalid as to the advowson, though good as to the estate
[027] without it, because the donor cannot take back without the consent of the donee
[028] what he earlier gave, nor give it a second time, though it may seem at first sight that
[029] he always remains in seisin until the donee has presented. But in truth he cannot give
[030] it, since the donee has the right of presentation and is in quasi-seisin until the church
[031] falls vacant, and so by virtue of a fictional seisin.

Notes

1. B.N.B., no. 1758; C.R.R., xii, no. 2641; infra iii, 229

2. B.N.B., no. 1685; C.R.R., xii, no. 1423; infra iii, 229

3. Deleted. The facts are given infra iii, 229

4. Infra iii, 229

5. New paragraph. New theory and change of mind.

6. Supra 161

7. ‘ad similitudinem servitutis,’ from preceding line

8. Infra iv, 184, 185

9. Not a new sentence in any MS.

10. ‘ut si;’ om: ‘retineri,’ a connective

11. Supra 106