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husband shall present to the next avoidance, as tenant
May be aliened.
§ 29. An advowson 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 advowson in gross being an incorporeal inheritance, and not lying in manual occupation, does not pass by livery; but may be granted by deed. And
although the law does not consider the exercise of the Infra. ch. 2. right of presentation, as of any pecuniary value, or a
thing for which a price or compensation ought to be
Grant of the next presentation.
$. 31. An advowfon may not only be aliened to a person in fee, for life, or years ; but the next presentation, or any future number of presentations may be granted.
Ante f. 25.
$. 32. It has been stated that where a married man granted the third presentation to a living, his wife being intitled to such third presentation, as part of her dower, the grantee should have the next presentation after the wife's, because the wife's title arose
from an act of law which shall not operate to the pre1 Inft. 378 6. judice of the grantee. But where a man granted the next presentation to A. and before the church became
void, he granted the next presentation of the same church to B. The second grant was void, for his right of presentation was destroyed by the act of the party; not as in the former case, by an act in law.
S: 33. It has been determined in a modern case, that a grant of the next presentation to a church, does not become void by the crown's acquiring a right to present,
S. 34, Sir Kenrick Clayton being seized in fee of Troward v.
Cailland, an advowson, the church being then full, by a deed 2 H. Black. poll granted to M. Kenrick Esq. his executors, &c. Rep. 324.
6 Term Rep. the next presentation donation and free disposition of 439.778. the said church, as fully freely and entirely as the said 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 reason of his royal prerogative became entitled to present a fit person to the said church.
It was contended that in the event that had happened, this grant became void, and that in the case of Woodley v. Episc. Exeter it was held that the grantee Cro. Jac. 695. of the next avoidance must have the next or none at
Winch. all ; and must lose his right by the intervention of the prerogative, on the promotion of the incumbent to a bishopric.
On the other fide it was argued that the authority of the case of Woodley v. Episc. Exeter was expressly contradicted by the note in the margin of Dyer 228. b. (which was apparently the same case) where it was stated to have been resolved by the court, that the grantee should have the next avoidance after the prerogative presentation ; because that was the act of law; and the prercgative of the king, which excluded him from the first presentation, injures no one.
The Court of Common Pleas held that the grantee of the next presentation should present on the next vacancy, occasioned by the death or resignation of the king's presentee,
This judgment was affirmed by the Court of King's Bench and afterwards in the House of Lords with the assent of the judges.
S. 35. Where a person has only a particular estate in a manor, to which an advowson is appendant, he can of course only alien the advowson for so long as his estate shall continue, so that if a tenant for life grants the next presentation to a church, it is void against the remainder man.
$. 36. An advowson may also be aliened by way of mortgage but though the church becomes vacant before the mortgage is paid, the motgagee cannot present.
Infra Ch. 2.
$ 37. It
S. 37. It is said by Lord Coke that an advowson is Is assets.
1 Init. 374.b. assets to satisfy a warranty, but an advowson in gross 3 Atk. 464.
Cro. Eliz. is not extendible upon a writ of elegit, because no annual value can be set
W. Jones 24.
401. S. 38. An advowson in gross, whether the proprietor has a legal or an equitable interest therein, is assets for the payment of debts, and will be directed, by the Court of Chancery, to be sold for that purpose.
S. 39. John Tong being indebted to several persons Tong v.
Robinson, by judgment, bond, and simple contract, in great
i Bro. Pari. of money, died intestate, feised in fee among other Ca, 114
Vin, db. things of the trust of an advowson in gross.
The question was whether this advowson was assets, and Lord Chancellor King decreed that it was, and should be sold for payment of the debts of John Tong. Upon an appeal from this decree to the House of Lords, it was insisted that the advowson was not assets 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 satisfaction of the debt, which an advowson is not.
On the other side it was contended that at common law an advowfon in fee is an hereditament defcendible to the heir, valuable in itself, and saleable; and even capable if neceffary of having an annual value put upon it, and is therefore legal assets in the hands of the
heir. The decree was affirmed with the concurrence of all the judges present.
S 40. In a case before Lord Hardwicke in 1746, one of the questions was, whether an advowson in gross was afsets by descent. His Lordship observed, it had been said the authorities went no farther than where there had been a trust of an advowson, and did not extend to a legal interest in an advowson. But that this argument was quite cut up by the roots by the determination of the House of Lords in the case 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 assets; it must have been defectively taken by the clerk, for the question intended was, whether an advowson in fee in gross was assets : for there could be no doubt as to an advowson appendant to a manor, because the manor itself being assets, what is appendant must be assets likewise. His Lordship decreed that it was assets by descent to satisfy specialty debts.