Bracton: Thorne Edition: English. Volume 3, Page 158

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Volume 3, Page 158

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[001] an assise of mortdancestor lies for the heir on the seisin of such¹ ancestor, as above,²
[002] [or a writ of entry.]³ But if, though he lived for a long time, and could have sued had
[003] he so wished, the disseisee did not do so, the heir ought scarcely to be aided, except
[004] only on the property. But he is sometimes aided, though contrary to law or in advance
[005] of it.>⁴ ⁵<Suppose that a husband disseises another of a tenement which at the
[006] beginning was⁶ the right of his wife [and that] the disseisee arraigns an assise of novel
[007] disseisin against him, so that the view is made and the jurors chosen, or, that the
[008] disseisin is committed so short a time before his death that the disseisee cannot sue.
[009] If the husband dies, and the wife remains in the same seisin after his death and dies
[010] so seised, and after her death the heir enters into it and the disseisee impetrates a
[011] writ of entry against him, by reason of the disseisin committed by the heir's father
[012] of the inheritance of the mother, and if the heir replies that he has no entry through
[013] the disseisin committed by his father but by descent from his mother, who died seised
[014] thereof as of fee and of right and who committed no disseisin, that reply will not
[015] prevent the action from proceeding against him, because, though the land in truth
[016] is the inheritance of his mother, her entry was wrongful, because of the disseisin
[017] committed by her husband, nor does the heir have seisin thereof except through the
[018] disseisin effected by his father and the wrongful entry of his mother after the disseisin
[019] by his father. Therefore the taint in the thing caused by his father and mother attaches
[020] to the heir, and he succeeds to the taint, though through an intervening person;
[021] thus the demandant will recover by such writ, as in the eyre of Martin of Pateshull
[022] [in the roll] of pleas which were reserved for judgment in divers counties, in the fifth⁷
[023] year of king Henry in the county of Gloucester, [the case] of Ralph Crupet,⁸ who impetrated
[024] a writ against William the earl marshall, the younger, who answered that
[025] he had no entry through William the earl, his father, but through the countess, his
[026] mother, whose inheritance that land was, and who died seised thereof as of fee and
[027] right.> And so if, though he wished to sue he could not, neither personally nor by
[028] another, as where he is confined by severe illness, though he has not lost his memory.
[029] And though he has lost his memory before the disseisin, and thus cannot cease to
[030] possess civilly though he ceases to possess naturally by the expulsion,⁹ two remedies
[031] lie for the heir, a writ of entry,¹⁰ if he chooses that, as here, or the assise of mortdancestor.
[032] Similarly, if he cannot sue because of the shortness of time, as where
[033] disseised today he dies immediately, or on the morrow or on the second or third day,
[034] so that time cannot suffice the disseisor for title,

Notes

1. ‘talis’

2. Infra 201, 270

3. Supra 157, infra 174

4. ‘praeter ius’: infra iv, 289; Drogheda, 321

5. Supra i, 400

6. ‘ab initio fuit’

7. ‘quinto’

8. Selden Soc. vol. 59, nos. 44, 115a; C.R.R., x, 207 (Mich. 5 H. 3); not in B.N.B.; Hall in Tulane L. Rev. xlii, 596

9. Infra 270

10. Without the clause