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[001] one is in possession for a term and retains possession by an agreement, and is ejected
[002] contrary to it.> If he is kept out by force he has an action on the agreement, and thus
[003] the agreement gives an exception to the possessor and an action to him who does not
[004] possess.1 The possessor has an exception because he enters into possession with the
[005] consent of the plaintiff, because he once wished it though he afterwards ceased to do
[006] so, for it suffices that he once wished it,2 nor may a mutual agreement be dissolved
[007] except by a contrary mutual agreement.3 In all these cases we must see whether the
[008] agreement was satisfied or not, and thus whether he who complains ought to be content
[009] or not.4 If it is agreed that he could enter,5 [as above more fully [in the portion]
[010] on gifts,]6 and thus an agreement falls into the assise and by it the assise falls and is
[011] turned into a jury to inquire into the agreement.

The exception against the words ‘he disseised him.’

[013] An exception may be raised against the assise by virtue of the phrase ‘he disseised
[014] him,’ for it may be alleged that the plaintiff never was in seisin. 7 For he is ejected who
[015] loses possession, not he who was never in possession;8 9nor is the assise available to
[016] anyone except one who, when he was ejected, possessed, nor is anyone taken to be
[017] ejected except one who possesses,10 in his own name.11 For one may not be disseised
[018] who never had seisin, neither in his own name nor in another's. If in another's, as a
[019] procurator, creditor, farmer or villein, though they have natural possession, the
[020] assise is not available to them if they are ejected, but to the owner, who always has
[021] civil possession and retains natural possession for himself through them.12 And since
[022] to be in seisin is very different from being seised, just as it is very different to be in
[023] possession and to possess,13 we must see who is so seised that he may recover his seisin
[024] and who is not. It is clear that some are in seisin and not seised, as those who possess
[025] in the name of another, as said above; though they are in possession with the consent
[026] of the lords, and though in a way they are seised, with respect to the use and the fruits,
[027] they are not seised as of a free tenement, though they may recover their possession in
[028] a way other than by the assise, as will be explained below.14 There are some who are in
[029] seisin and not seised before [a certain] time, peaceful and long, which may suffice for
[030] title, through the negligence or acquiescence or weakness of lords, as intruders and
[031] disseisors, and others, who, by reason of being conjoined,15 as a husband with his wife
[032] when there are no children of the marriage, or if they have children


1. Supra ii, 69, infra 146, 148

2. D.

3. D. 50.17.35; supra ii, 289, infra 129, 167-8, 178

4. Supra ii, 69, iii, 36, infra 146

5. Deleted

6. Supra ii, 69, 145

7-8. D.; ‘deicitur’ for ‘dicitur,’ as D. and LA, MC, OC

9-10. D.; supra 34

11. D. 41.2.18.pr.

12. Supra 33, infra 136

13. D.; supra 33

14. Infra 161

15. Supra 113-14, infra 129

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