Bracton: Thorne Edition: English. Volume 2, Page 127

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Volume 2, Page 127

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[001] has dominium (the mere right and the property, the fee and the free tenement and
[002] the usufruct) in an estate, by giving livery he at once transfers the whole to
[003] the donee. If he does not have the whole, he at once transfers what he has. And if
[004] he has only the usufruct he nevertheless immediately causes his feoffee to have a
[005] free tenement, [that is], as against himself and others who have no right, but as
[006] against the true lord only after the passage of time.¹⁷ But if he who transfers has
[007] nothing at all, no seisin of any kind, he transfers nothing to the donee,¹⁸ for he
[008] cannot give and transfer, nor give livery of, what he does not have.¹⁹ ²⁰When
[009] dominium is transferred it is transferred to the taker just as it was when in the
[010] hands of the transferor, so that if the land was servient or burdened it is so transferred
[011] (unless the donor, when making the gift, takes the burden upon himself in
[012] whole or in part);²¹ if it was free, then as such. If when the donor transfers he says
[013] the land is free, though in truth it is servient, he diminishes the servitude in no
[014] way but takes it upon himself to make good what he said.²² If he transfers the
[015] land with its appurtenances and servitudes, he transfers the appurtenances and
[016] the servitudes to the taker. ²³Though the donor cannot transfer anything to the
[017] taker except what he has, as where he has nothing except a bare use or a usufruct,
[018] nevertheless something²⁴ other is transferred from the point of view of the taker,
[019] that is, with respect to²⁵ the mere right, the fee and the free tenement, for simply
[020] because one is in possession to some extent and to some degree, he may cause his
[021] feoffee to have all these with respect to dominium (or at least to escambium)²⁶
[022] though he is not himself dominus. But as against the true lord the taker is not made
[023] lord at once, only after long and peaceful seisin,²⁷ and hence if the true lord
[024] immediately ejects him he will not recover by the assise if his donor did not have
[025] full right in the thing, as where he holds only for life²⁸ or has nothing except a
[026] usufruct or a bare use.²⁹ But if his donor or one who has no right ejects him,
[027] against all such he will recover by the assise whether time has passed or not. ³⁰If
[028] a gift and livery of the same thing is made to one by a lord and a non-lord,³¹
[029] the livery made by the lord will prevail, and so if they make it to two, for one may
[030] be revoked and the other not. If a gift and livery is made of the same thing by two

Notes

17. Supra 101, 102, infra 157

19. Supra 103, infra 139

20-22. D. 41.1.20.1: ‘Quotiens autem dominium transfertur, ad eum qui accipit tale transfertur quale fuit apud eum qui tradit: si servus fuit fundus, cum servitutibus transit, si liber uti fuit ... Si quis igitur fundum dixerit liberum cum traderet, eum qui servus sit, nihil iuri servitutis fundi detrahit, verumtamen obligat se debebitque praestare quod dixit.’; infra 182

21. Infra 146, 147

23. New paragraph; ‘Etsi’

24. ‘aliquid’ for ‘ad’

25. ‘quoad’

26. Supra 57

27. Supra 101, 102, 123, infra 157

28. Supra 102, infra 157

29. Supra 102

30. New paragraph

31. ‘ab uno domino et alio non domino’