Thexton v Betts
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1683 |
| Date | 01 January 1683 |
| Court | High Court of Chancery |
English Reports Citation: 22 E.R. 1075
Chancery Division
C. 96.-thexton v. betts. [1683.] Advowson mortgaged The plaintiff's testator being incumbent of a parsonage, and having a grant of the next avoidance, mortgaged the next avoidance for twenty-five pounds ; he being dead, the plaintiff is his executor, and brought his bill to redeem; and the defendant demurred. Per curiam, he shall not redeem, for now the advowson (1) is become in that plight, that it cannot be transferred in law, the party shall never be decreed here to transfer it; and the plaintiff's bill was to be dismist; but if the defendant takes the benefit of presenting,(2) he shall not also sue for his money. [88] It was proposed, that though the defendant could not by law assign the next avoidance now it is fallen, and so could not be decreed to do an act against law, yet this court might compel the mortgagee, upon receipt of his money, to present the nominee of the mortgagor. But that the Lord Keeper said he would never do, for that would be for this court to do the same thing in substance which the law allows not to be done, and might tend to encourage simony ; (3) and therefore he would never do it; and he said the grant of the next avoidance comes as near simony as may be 1076 FITTON V. MAXEPIELD (LORD) 3PEEEMAN, 89. (1) The presentation to the actual vacancy is, of course, meant; not the perpetual advowson. (2) The mortgagee of an advowson has a right, at common law, to present; Croft v. Powell, Comyns, 609 ; but as the presentation is, or is understood to be, gratuitous, and the mortgagee cannot account with the mortgagor for any benefit derived from it; a court of equity will order such mortgagee to present the nominee of the mort gagor. Jory v. Cox, Free, in Cha. 71. And this even though the mortgage be, as in the present case, of a naked advowson ; Mackenzie v. Robinson, 3 Atk. 560 ; Qubbins v. Creed, 2 Sch. and Lef. 218 ; post, c. 342, p. 274...
To continue reading
Request your trial
-
Howard v Harris
...in the family, being tenant for life, with remainder to Henry his first son, sold the lands in question to the defendant; afterwards 2 FREEMAN, 87, THEXTON V. BETTS 1075 he dying, his son Henry defeated the said purchase by virtue of the said settlement, and in the year 1670 mortgageth the ......
-
Gardiner v Griffith
...(1) Com. Rep. 343, nom. Gaily v. Serjeant Selby; S. C. 2 Freem. 273, nom. Dimock's case, or Hobart v. Selby. See also Thexton v. Belts, 2 Freem. 87. So, the assignees of a bankrupt patron shall not present to a vacant benefice. St. 6 G. 4, c. 16, s. 77. English Reports Citation: 24 E.R. 78......
-
Hunter v Seton
...to complete it by the time limited), bar a redemption. : Jason v. Eyres, 2 Freem. 70. Newcombe v. Bonham, 2 Frcem. 67. Howard v. Harris, 2 Freem. 87. 4. Notwithstanding the report of the principal case represents Lord Kldon to have intimated, that, whether interest was reserved on a mortgag......
-
Amhurst v Dawling
...343 [2 Freem. 273], S. C. So where mortgagor and mortgagee of a naked advowson, Mackensie v. Robinson, 3 Atk. 559. [Thexton v. Belts, 2 Freem. 87. Gardiner v. Griffith, 2 P. Wms. 404; and see Mutter v. Chauvel, 1 Mer. 493.] But the right of the mortgagor is merely in equity, at law it is in......