Harvard Law School Library

Bracton Online -- English

Previous   Volume 2, Page 69  Next    

Go to Volume:      Page:    

[001] will always be a free tenement and, all other heirs being excluded, will revert to
[002] the donor, since the condition was not satisfied.1 Thus a condition is joined to a
[003] modus. By the modus a gift may be made to the husband and wife and the heirs
[004] of the wife only, or to the husband and wife and the heirs of the husband only.
[005] Also to the husband and wife and their common heirs, if there are such, and if not,
[006] then to the heirs of the survivor.2

Gifts may be made subject to a modus with a condition attached.

[008] If one says, ‘I give to such a one so much land etc. that he give me so much,’ or
[009] ‘that he find me in necessaries,’ though not entirely free, a gift of that kind is
[010] simple and absolute and, if followed by livery, cannot be revoked; he who transferred
[011] can sue only for this, that the donee hold to his agreement and do what he
[012] promised.3 But if, when the gift is first made, a condition is at once attached to
[013] it, that unless the recipient holds to his agreement the transferor may at once
[014] put himself back into the land and hold it to himself and his heirs, quit of the
[015] recipient and his heirs, [it will be otherwise].4 If he afterwards puts himself in
[016] seisin [and] the donee arraigns an assise of novel disseisin against him, it must first
[017] be asked whether he who took the tenement has found the donor in necessaries to
[018] an extent that ought to satisfy him.5 If he has not, the assise falls; if he has, he
[019] will recover by the assise. If he has not provided sufficiently and the transferor
[020] cannot put himself back into seisin by force of the condition, an action [based
[021] upon] the agreement6 will be given him for recovering his seisin; 7if he is in possession
[022] by his own efforts he may maintain himself there by an exception based upon the
[023] agreement. But what if he who took under a limitation of this kind gives the land
[024] over to another; though it is subject to a condition, quaere whether he who [first]
[025] transferred may eject the alienee since the agreement does not touch him. It
[026] appears at first sight that he may, for the thing seems to be bound as well as the
[027] person, so that it cannot be transferred to another without its burden, [and] thus
[028] that if [the second feoffee] is ejected, though without judgment, he will not recover.
[029] But in truth the obligation is personal, and an agreement made between certain
[030] persons does not bind others, only those between whom it was made, nor was it
[031] expressly stated from what tenement the necessaries ought to be found, from
[032] [this] any more than from that, and therefore the tenement is neither charged nor
[033] burdened.8 How must the plaintiff aid himself if he cannot eject one so enfeoffed
[034] nor put himself in seisin in accordance with the agreement nor bring an action
[035] against him on the agreement? He must sue him, it is submitted, with the


1. Infra 144, 267

2. The portion infra 70 n. 5 belongs here

3. Infra 71, 145, 182

4. Infra 145

5. Infra iii, 36, 124

6. ‘conventione,’ as below

7. Om: ‘nisi’

8. Infra 145-6

Contact: specialc@law.harvard.edu
Page last reviewed April 2003.
© 2003 The President and Fellows of Harvard College