Bracton: Thorne Edition: English. Volume 2, Page 104

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Volume 2, Page 104

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[001] the land the husband and wife together hold in dower of the gift of her first husband.
[002] Though¹ the warrantor wishes to make the gift, he cannot put the donee into vacant
[003] seisin, since husband and wife are the same body and flesh. Nor, for the same reason,
[004] can he attorn the service of the wife to her husband².

By a gift one causa possidendi is sometimes changed to another.

[006] ³By a gift one causa possidendi is sometimes changed into another, [If one at first
[007] has a bare use in some thing, by grant of him who has the proprietas he may have a
[008] usufruct. If at the outset he has a usufruct and a term, he may, before the term has
[009] expired and while he is thus in possession, have a free tenement.] ⁴as where to one
[010] having a free tenement, as to one who holds in dower, or by the law of England or the
[011] like,⁵ it is granted, while he is thus in seisin, [without putting himself out of seisin
[012] provided some ceremony is observed at the making of the change, lest the gift fail
[013] for lack of proof,]⁶ that he hold it in fee and thenceforth have the proprietas, for
[014] he [who has the proprietas] may⁷ of a free tenement make the possessor a fee. ⁸<The
[015] ceremony is [not] required in order that what one first has for a term may be given⁹
[016] him in fee, [for] whether the donor and donee are present or absent the causa possidendi
[017] is changed ipso jure, [but] for this reason, because it is one thing to have only a
[018] right of use and a usufruct, and a very different thing to have dominium and proprietas.
[019] Hence it is safer that some ceremony be observed in order to prove the
[020] change, for unless it is, proof may fail though there is no absence of right.> <A
[021] donor and true lord, with the tenant's consent, may change one causa possidendi
[022] to another, without any change of possession, [When he is once in possession, it is
[023] not necessary to take back the thing once given in order to change the causa, as
[024] though the gift had to be made de novo, because if the true lord could grant him the
[025] thing in fee, without any change of possession, though¹⁰ he entered by intrusion or
[026] disseisin [and] his possession is wrongful, a fortiori he may do so if it is rightful.]
[027] unless it is to the prejudice of another,¹¹ as where a gift is made to a minor, whose
[028] causa cannot be changed to his damage and disadvantage, only to the improvement
[029] of his position.¹² It cannot be changed within age to his damage, that is, that he have
[030] for life what was earlier given him to himself and his heirs, or [so that] what was
[031] given him in fee or for life be transferred to another, to

Notes

1. ‘Etsi’

2. Continued infra 105, n. 3; om: ‘Et unde . . . recuperabit’

3. Belongs at end of first paragraph, infra 105

4. ‘absque eo . . . probationis,’ infra n. 6; om: ‘Item mutari . . . aliam,’ a connective

5. ‘sicut illi qui tenet ... huiusmodi,’ from lines 18-19

6. ‘absque eo ... probationis,’ from lines 13-15

7. ‘poterit’

8. Supra i. 377; reading: ‘Solemnitas non erit facienda ut id quod ... in feodo, quia sive ... absentes mutatur causa possidendi ipso iure, [sed] itaque, quia aliud’

9. ‘dari’ all MSS

10. ‘quamvis’ for ‘quis’

11. ‘nisi sit ad praeiudicium’

12. Inst. 1.21.pr.