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May be alien
husband shall present to the next avoidance, as tenant by the curtefy.
§ 29. An advowfon appendant may be aliened by any kind of conveyance which transfers the manor to which it is appendant, even without the words cum pertinentiis.
§ 30. An advowfon in grofs being an incorporeal inheritance, and not lying in manual occupation, does nót pass by livery; but may be granted by deed. And
although the law does not confider the exercise of the Infra. ch. 2. right of prefentation, as of any pecuniary value, or a thing for which a price or compensation ought to be accepted, yet the general right to prefent is confidered as valuable, and an object of fale, which may be conveyed for a pecuniary, or other good confideration.
Grant of the next prefentation.
Ante f. 25.
§. 31. An advowfon may not only be aliened to a perfon in fee, for life, or years; but the next prefentation, or any future number of presentations may be granted.
§. 32. It has been ftated that where a married man granted the third presentation to a living, his wife being intitled to fuch third presentation, as part of her dower, the grantee fhould have the next prefentation after the wife's, because the wife's title arose from an act of law which fhall not operate to the pre
1 Inft. 378 6. judice of the grantee. But where a man granted the next prefentation to A. and before the church became
void, he granted the next presentation of the fame church to B. The fecond grant was void, for his right of presentation was destroyed by the act of the party; not as in the former cafe, by an act in law.
S. 33. It has been determined in a modern cafe, that a grant of the next presentation to a church, does not become void by the crown's acquiring a right to prefent,
§. 34, Sir Kenrick Clayton being feized in fee of an advowson, the church being then full, by a deed poll granted to M. Kenrick Efq. his executors, &c. the next presentation donation and free difpofition of the faid church, as fully freely and entirely as the faid Sir K. Clayton or his heirs.
The person who was then incumbent, was made bishop of Rochester; whereby the church became vacant, and the king by reafon of his royal prerogative became entitled to present a fit person to the faid church.
It was contended that in the event that had happened, this grant became void, and that in the cafe of Woodley v. Epifc. Exeter it was held that the grantee of the next avoidance must have the next or none at all; and must lose his right by the intervention of the prerogative, on the promotion of the incumbent to a bishopric.
8 Bro. Parl.
1 Bro. Parl. Ca. 108.
Infra Ch. 2.
On the other fide it was argued that the authority of the cafe of Woodley v. Epifc. Exeter was exprefsly contradicted by the note in the margin of Dyer 228. b. (which was apparently the fame cafe) where it was ftated to have been refolved by the court, that the grantee should have the next avoidance after the prerogative presentation; because that was the act of law; and the prerogative of the king, which excluded him from the firft prefentation, injures no one.
The Court of Common Pleas held that the grantee of the next prefentation fhould prefent on the next vacancy, occafioned by the death or refignation of the king's prefentee.
This judgment was affirmed by the Court of King's Bench and afterwards in the Houfe of Lords with the affent of the judges.
§. 35. Where a perfon has only a particular estate in a manor, to which an advowfon is appendant, he can of courfe only alien the advowfon for fo long as his eftate fhall continue, fo that if a tenant for life grants the next presentation to a church, it is void against the remainder man.
§. 36. An advowfon may also be aliened by way of mortgage but though the church becomes vacant before the mortgage is paid, the mortgagee cannot present.
§ 37. It
S. 37. It is faid by Lord Coke that an advowfon is affets to fatisfy a warranty, but an advowfon in grofs is not extendible upon a writ of elegit, because no annual value can be fet upon it.
§. 38. An advowfon in grofs, whether the proprietor has a legal or an equitable intereft therein, is affets for the payment of debts, and will be directed, by the Court of Chancery, to be fold for that purpose.
3. P. Wms.
1 Bro. Parl.
§. 39. John Tong being indebted to feveral perfons Tong v. by judgment, bond, and fimple contract, in great fums of money, died inteftate, feised in fee among other Ca. 114. things of the truft of an advowfon in grofs.
The question was whether this advowfon was affets, and Lord Chancellor King decreed that it was, and fhould be fold for payment of the debts of John Tong. Upon an appeal from this decree to the Houfe of Lords, it was infifted that the advowfon was not affets at law, or liable to the demands of any of the creditors of John Tong, because at law no inheritance is liable to any execution, that is not capable of raising some profits towards fatisfaction of the debt, which an advowson is not.
On the other fide it was contended that at common law an advowfon in fee is an hereditament defcendible to the heir, valuable in itself, and faleable; and even capable if neceffary of having an annual value put upon it, and is therefore legal affets in the hands of the
heir. The decree was affirmed with the concurrence of all the judges present.
§ 40. In a cafe before Lord Hardwicke in 1746, one of the questions was, whether an advowfon in grofs was affets by defcent. His Lordship obferved, it had been faid the authorities went no farther than where there had been a trust of an advowfon, and did not extend to a legal interest in an advowfon. But that this argument was quite cut up by the roots by the determination of the House of Lords in the cafe of Tong v. Robinson.
In the minute-book of that day, it was taken down, that the question proposed to be asked of the judges was, whether an advowson in fee was affets; it must have been defectively taken by the clerk, for the queftion intended was, whether an advowfon in fee in grofs was affets for there could be no doubt as to an advowfon appendant to a manor, because the manor itself being affets, what is appendant must be affets likewife. His Lordship decreed that it was affets by defcent to fatisfy specialty debts.