Bracton: Thorne Edition: English. Volume 2, Page 150

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Volume 2, Page 150

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[001] free tenement, nevertheless, in order to make his possession evident,¹ lest the gift be
[002] considered fictitious even though he is put into vacant possession, he must use his
[003] seisin, [Hence when a thing has been given, to a minor or to one of full age, it is
[004] necessary that the donee use and enjoy his seisin; if he is of full age, by himself or by a
[005] procurator, any man whatever, free or bond, who is in possession in his name and who
[006] takes the fruits and produce and profits to the use of the donee, taking nothing to the
[007] use of the donor. If he is a minor or enfeebled he must make use of it through a
[008] tutor or curator provided by the donor.] for if² the donor, a father or another, withdraws
[009] from seisin³ and he converts the profits to his own use, though he does so qua
[010] curator,⁴ and though homage has been taken, a charter made and seisin transferred
[011] with the proper ceremonies, the gift will still not be valid.⁵ Nor if, after the donor's
[012] death, the donee puts himself in seisin on the strength of the acts aforesaid and is
[013] at once ejected will he recover by the assise of novel disseisin. But if, through the
[014] negligence of the true heir, he has long and peaceful seisin and is then ejected, after an
[015] interval, he will recover, because ejected without judgment; the assise of mortdancestor
[016] is available to the true heir.⁶ And so if⁷ they cultivate the land together,
[017] as a whole or each a part, or⁸ share the profits in common, for by use what lies hidden
[018] in the mind of the donor may be discovered.⁹ This is so whether the donor's possession
[019] is continuous or broken by an interval, for by such use the donor continues his
[020] own seisin and obstructs and destroys that of the donee. It is evident from such use
[021] that he did not withdraw from possession animo or corpore. ¹⁰<Though the charter
[022] of gift states that, the donor has given the thing completely, if the donee uses one
[023] part of the land and the donor another, the latter by such use continues his seisin
[024] of the whole, unless the part was specially excepted.¹¹ But if, provided the donor does
[025] not use it at all, the donee uses only a part with the intention of possessing the
[026] estate to its boundaries,¹² such use suffices for retaining the entire estate. If the
[027] donee uses the appurtenances and the donor the principal thing, by his use the
[028] donor will retain the whole and the donee by his acquire nothing,¹³ for it is either
[029] all or nothing, since the donor must have the intention of transferring the whole and
[030] the donee of accepting the whole. It was wrongly decided to the contrary [in the
[031] case] between Roger of Reygny and Robert of Schute over the land of Dulverton
[032] and the hundred appurtenant,¹⁴ where it was held that by such use Robert retained
[033] the hundred,

Notes

1. As supra 125, infra 160

2. ‘quia si’

3. ‘a seisina recesserit,’ in view of the example infra 151, n. 11

4. Om: ‘ita seisitus obierit’

5. Supra 54, infra 153

6. Infra 152, iii, 34

7. Om: ‘quod ... donatio’; ‘cum simul ... possessione’

8. ‘vel’

9. Supra 130, 131, infra 153

10. Supra i, 381

11. Supra 133, infra 151

12. D. 41.2.3.1: supra 125, 133

13. Supra 125, infra 151

14. Commission issued to Br. August 1255 (Pat. Roll 39 H. 3, m. 9); taken by Br., apparently at South Petherton, 5 Sept. 1255, J.I. 1/1182, ms. 7 (cancelled) 8, and thence adjourned coram rege for certification at Easter three weeks: Somerset Pleas, no. 1491. Coram rege roll not extant. B.N.B., i, 39-40. Information from Mr. C.A.F. Meekings