Bracton: Thorne Edition: English. Volume 2, Page 139

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Volume 2, Page 139

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[001] feoffee cannot take the esplees because of the usufructuary's term? The gift is
[002] good nonetheless, for the term must always be saved. And if the second feoffee
[003] [the termor], regarding himself as enfeoffed, takes the esplees? That will be a taking
[004] from the free tenement of the first feoffee rather than from his own; from the
[005] property of another because¹ when a donor has once given he retains nothing
[006] more he can give, except the bare lordship. That case arose at Clarendon, before
[007] John of Lexington,² and was there wrongly decided, an exception of villeinage
[008] being raised against the first feoffee who brought the assise of novel disseisin
[009] against the second feoffee and the donor.> ³Several may be enfeoffed of the same
[010] tenement at the same time and livery made to them all together; there will be a
[011] single gift and a single livery.⁴ ⁵Livery may also be made to one in the absence
[012] of the others, partly in his own name [and] partly in that of the others, that is, as
[013] procurator, and thus a thing is acquired for those absent by the act of those
[014] present.⁶ The gift will be single and the livery quasi-single.⁷ And as a gift may be
[015] made by one to several, de jure or de facto, so several may make a gift to one [or
[016] to several,] de facto or de jure: several de jure to one [or several,] of a thing they
[017] hold in common. If it is not a thing held in common, we must then see which [of them]
[018] was in possession, no matter by what causa, whether he has right or not; if he has
[019] made the gift and livery it will be good though the donor has no right, since one
[020] may give the property of another, and after livery made the donee at once begins
[021] to possess and the donor ceases to do so. Hence if the true lord [subsequently]
[022] enfeoffs the same donee [or another,] making him a charter and taking his homage,
[023] the gift will not be good, because, since he is out of seisin, he cannot transfer what he
[024] does not have.⁸ The feoffment one has from one by one causa he cannot have from
[025] another by force of the same causa, for what is once mine by force of one causa
[026] and from one person cannot again be made mine during my possession of it by
[027] the same causa from another. Two may no more give a single thing, by the same
[028] causa or different ones, unless it is held in common, as was said above, than ⁹they
[029] may possess a single thing at the same time and as a whole, nor may they possess a
[030] single thing at the same time and as a whole any more than one may stand where the
[031] other stands [or] sit where the other sits.¹⁰ ¹¹He cannot give who does not possess,
[032] but if he has the right in a thing, but not seisin, he may acknowledge it to be the
[033] right of the possessor and remit his right to him, or remit it simply without acknowledgment.¹²
[034] If he is lord he may also,

Notes

1. ‘de alieno quia’

2. Probably 1247, 1249 or 1250-51; no rolls extant. B.N.B. i, 39 n.; Meekings in Bull. Inst. Hist. Research, xxxii, 218

3-4. ‘Plures ... et una traditio,’ from 138, lines 35-37

5. Om: ‘Item si ... donatio’

6. Supra 95, 96

7. ‘erit [una] donatio ... quasi una,’ from lines 15-16

8. Om: ‘et quia’

9-10. D. 41.2.3.5: ‘Non magis enim eadem possessio apud duos esse potest quam ut tu stare vidaeris in eo loco in quo ego sto, vel in quo ego sedeo tu sedere videaris.’

11. Om: ‘et eisdem rationibus’

12. Supra 108, or confirm it, infra 174