Bracton: Thorne Edition: English. Volume 2, Page 92

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Volume 2, Page 92

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[001] the [disposition] will be good.¹ ²If the donor makes a gift in this way, for himself
[002] and his heirs to such a one, no mention made of the donee's heirs or that it is for
[003] his life, the thing so given will be a free tenement as long as the donee lives, for to
[004] give in this manner is the equivalent of giving for life. But if the gift is made for a
[005] term of years, though for a term so long that it exceeds the lives of men,³ he will
[006] not have a free tenement, since a term of years is certain and limited and a term of
[007] life uncertain, and because though nothing is more certain than death nothing is
[008] more uncertain than the hour of death.⁴ ⁵One may grant land to a person for a term
[009] of years and, within the term, give it to him [or another] in fee, and thus change one
[010] possession to another,⁶ as where he enfeoffs the termor. If he enfeoffs another,⁷ both
[011] possessions will continue, for a term and a feoffment of the same land are compatible
[012] with one another since there are there different rights.⁸ To the feoffee belongs the
[013] proprietas of the fee and the free tenement; the termor in truth may claim nothing
[014] except the usufruct, that is, to use it freely and take its fruits without interference by
[015] the feoffee.⁹ [One may also give land to another at will for as long as it pleases him.¹⁰
[016] from term to term [or] from year to year, and there the donee has no free tenement,
[017] since the owner may retake the thing so granted, as a precarium.]¹¹ Suppose that
[018] A. first demises [to C.] for a term of years, and afterward, during the term, enfeoffs
[019] B. and puts him in possession, saving to the termor his term. Then, when he no
[020] longer retains anything except the bare lordship, A. enfeoffs the termor [C.] de
[021] facto.¹² If B. ejects the termor at the conclusion of the term and puts himself in
[022] seisin by virtue of the first feoffment, restitution by the assise is not available to the
[023] termor, for A., since he had nothing except the bare lordship, could not cause him
[024] to have a free tenement.¹³ [But when this has been recognized by the assise, A.
[025] will be bound [to provide] his second feoffee [C.] with escambium, in that same
[026] proceeding and without any other writ, because of his fraud.]¹⁴ [If] the first feoffee
[027] [B.], when he has once put himself in seisin, is ejected by the second feoffee [C.],
[028] he will recover¹⁵ by the assise. That a gift is invalid when made by one who had
[029] nothing in demesne except bare dominium, that is, homage and service, is set forth
[030] [in the roll] of

Notes

1. Infra iv, 268

2. New paragraph

3. Infra iv, 21

4. Drogheda, 5: ‘nihil certius morte, nihil incertius hora mortis,’ also 10, 91; Policraticus, ii, 27 (471a): ‘Nichil morte certius est, nichil hora incertius’; B.N.B., no. 1124 (margin)

5. New paragraph

6. Infra 138

7. Reading: ‘et illam infra terminum illum dare eidem in feodo, vel alteri, et sic ... [ut] si firmarium feoffaverit. Si autem alium’

8. Supra 57, infra, 107, 138, iii, 162, B.N.B. no. 1290

9. Infra iv, 22; B.N.B., i, 92

10. D. 43.26.1. pr.: ‘Precarium est quod precibus petenti utendum conceditur tamdiu, quamdiu is qui concessit patitur.’

11. Infra 123, 157, 158, iii, 13, 127

12. Supra 53, infra 138-9

13. Infra 138

14. Supra 54, infra iii, 54

15. ‘recuperabit’