Bracton: Thorne Edition: English. Volume 3, Page 286

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Volume 3, Page 286

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[001] had seisin by himself, only with his donor. And since there may¹ be many exceptions,
[002] [on this matter let these suffice for the present by way of example.] The tenant may
[003] say by way of exception that if the ancestor had seisin, he had none in demesne,
[004] only for a term as a farmer, or in gage as a creditor or the like, another having the
[005] free tenement. [Or] that if the ancestor had that tenement in demesne, he did not
[006] have it in fee so that anything could descend to the demandant as heir, because he
[007] held only for a term of life, in whatever way. [Or] if the tenant admits that he held
[008] in fee, he may say by way of exception that nothing could descend to the demandant
[009] by assise from a tenement of that kind, because it was given to the aforesaid ancestor
[010] and his certain and limited heirs, as where it was given in maritagium to such a one,
[011] the ancestor, and the heirs of his body issuing, or to such a one with such a one, his
[012] wife, and their common, not their separate heirs. The same may be said of one enfeoffed
[013] [to himself] and his heirs, where heirs are restricted by² an agreement³ and a
[014] modus. The tenant [may] answer and admit that the ancestor died seised as of fee and
[015] in demesne, but nevertheless [that] by an agreement⁴ and modus the succession of
[016] such heir, to the extent of having seisin, is suspended for an uncertain time, that is,
[017] for the life [of the tenant], or until a certain time, that is, for a term of years, or for an
[018] indefinite time under a condition, that is, until the condition has or has not occurred,
[019] an exception which the tenant must prove by the assise in the manner of a jury. An
[020] ancestor pledged a tenement to a creditor until a certain day, subject to the condition
[021] that if the money was not paid on that day that the tenement should remain
[022] to the creditor in fee. We must [then] see whether the day of payment has passed or
[023] has not yet arrived. If it has passed, then whether payment was made in the lifetime
[024] of the debtor, or after his death, or not at all. If it was made, or the money was
[025] proffered on the day, as attested by the evidence of reputable men, the assise will
[026] proceed in the manner of a jury as to the payment made, and the heir will recover by
[027] the jury. If payment has not been made nor proffered, the assise falls and the tenement
[028] will remain to the creditor, because the condition was not satisfied. If the day has not
[029] yet passed, the assise is then suspended until the day, and, depending upon whether
[030] payment is or is not then made, will proceed on the morrow or remain.⁵ An assise
[031] may remain because of a condition and the modus of a transfer, though the ancestor
[032] dies seised as of fee, for example,

Notes

1. ‘possint’

2. Reading: ‘de eo qui feoffatus fuerit sibi et heredibus suis ubi coartantur heredes per’

3. ‘conventionem’: infra 287, 294

4. ‘conventionem’ in view of ‘condicione,’ line 21

5. Supra ii, 74, infra 287