Bracton: Thorne Edition: English. Volume 2, Page 96

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Volume 2, Page 96

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[001] though he is absent and without notice, even asleep, by a procurator,¹ or by a
[002] bondsman,² if he stipulates³ in his name,⁴ and as it is acquired for the true but
[003] absent heir by a guardian when he is in possession in the name of the true heir.⁵
[004] A gift may be made to a legitimately born concubine and her children, present
[005] and absent, born and to be born,⁶ and if all are under age the mother may
[006] be in seisin in her own name and in that of her children as tutor and curatrix;
[007] thus in the one tenement she may have a free tenement in her own name and a
[008] curatorship in the name of her children, and thus she may acquire a free tenement
[009] for herself (since she is in possession in her own name by the causa of gift) and for
[010] all her children, whether minors or of full age, as was said above, through her
[011] procuratorship.⁷ Hence if they are in possession and are ejected, some of them or
[012] all, the assise of novel disseisin is available to them for recovering their seisin;⁸
[013] and when the absent ones appear and are denied admittance the assise is similarly
[014] available to them, though they have not themselves been in seisin before, since it
[015] suffices if another was in their name, as procurator or curator,⁹ for possession is
[016] acquired by a procurator for one who is absent and retained as though by that
[017] other's own corpus.¹⁰ ¹¹<And similarly, by the procurator's animus as by the other's
[018] own animus, since it may be acquired for one who is without notice just as for one
[019] with it, and for one absent as for one present.>¹² A gift may be made to several
[020] persons together, strangers as well as those connected by family relationship as
[021] above, as where A. makes a gift to both B. and C. (who are unrelated) and their
[022] heirs. If each of them has heirs partition will be necessary, but if only one of
[023] them has heirs his heirs succeed to the whole, because of the unitary [nature] of the
[024] gift and the right of accruer. If neither has heirs the land reverts to the donor.
[025] If a gift is made to a husband and wife together¹³ (not to each separately and by
[026] himself)¹⁴ and their heirs, not in maritagium but as an absolute feoffment, we then
[027] must see whether [it is] to certain and limited heirs or generally to all. If to limited
[028] and certain heirs, such having failed, the thing given reverts to the donor although
[029] other heirs exist. If to all heirs generally, then if common heirs are in existence such
[030] are preferred to the others; if they fail, their separate heirs (so it seems) are admitted.¹⁵
[031] But if it is said that the land is given in maritagium with the wife and to their
[032] heirs, only the common heirs of both their bodies are admitted [and] if they fail the
[033] land reverts, more remote [heirs] being excluded. [If a gift is made in maritagium],
[034] the thing given is the free tenement of the wife and not the husband, since he has
[035] nothing but the custody of it with his wife.¹⁶ But if it is given in maritagium to the
[036] husband with the wife and to their heirs

Notes

1. Inst. 2.9.5: ‘per procuratorem placet non solum scientibus sed etiam ignorantibus vobis adquiri possessionem’; infra 136

2. Supra 87

3. Reading: ‘per procuratorem, vel per servum si . . . stipuletur’

4. Inst. 3.17.3; 28.3; D. 41.1.10.1; 41.1.23.2; 37.3; supra 87, 88, infra 135, 136, iii, 92

5. Infra 135, iii, 247, 271

6. Supra 54, 76, infra iii, 271

7. Supra 55

8. Ibid

9. Supra 55, 95

10. D. 41.2.3.12: ‘Certerum animo nostro, corpore etiam alieno possidemus, sicut diximus per colonum et servum, nec movere nos debet quod quasdam etiam ignorantes possidemus ... nam videmur eas eorundem et animo et corpore possidere.’

11. Supra i, 377

12. D. 41.1.13.1: 41.2.49.2: ‘possessio per procuratorem ignoranti quaeritur’

13. Infra 224, 266

14. Supra 76

15. Supra 80

16. Infra 368; D. 23.3.75: ‘quamvis in bonis mariti dos sit tamen mulieris est.’