Bracton: Thorne Edition: English. Volume 2, Page 132

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Volume 2, Page 132

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[001] they are present crops or future. Present crops he may well except, for they do
[002] not hinder the donee from immediately using and enjoying, but if future crops are
[003] excepted it then is important to see whether they are excepted for some definite
[004] period or forever. If he cannot use and enjoy before a certain time possession will
[005] be complete to the extent of having a free tenement, but it will not be full ownership
[006] until he has the usufruct.¹ With respect to what is said [above], that possession
[007] must be vacant, two things are principally required for the gift and livery of a thing
[008] to be complete, that an action may lie by the donee against the donor, namely, that
[009] the thing be transferred and that a missio into vacant possession of the thing follow.
[010] Vacant possession is not taken to be transferred if [the donor] possesses the thing
[011] himself, or someone is in possession, a procurator, farmer or tenant, guest, villein or
[012] friend, though he is not subject to him in whose name he is in possession.² When
[013] both are in possession, whether they use it together or not, if the donor regrets
[014] having made livery and ejects the donee the latter will not recover by the assise,
[015] whether the gift is feigned or not,³ because he did not have vacant possession, since
[016] the donor never withdrew.⁴ Conversely, if the donee ejects the donor he will recover
[017] by the assise, for the reason aforesaid, because he never ceased to possess. When
[018] the donor puts the donee in possession and immediately withdraws, [if] he afterwards,
[019] having returned at once, has begged lodging there under colour of sojourning
[020] as a guest, [his] gift may still be fictitious rather than real.⁵ We must then see
[021] whether he has been admitted under such pretext or repulsed. If repulsed he will not
[022] recover by the assise, because he left willingly and without coercion,⁶ and the gift
[023] will be good and firm since he once intended it. If he is freely admitted we must
[024] then see whether he conducts himself as lord, using, acting and taking as before:
[025] if so, it is then apparent that he did not withdraw from possession animo but rather
[026] continued it animo.⁷ If he returns [and so conducts himself] after a long interval,
[027] the donee having been in possession in the meantime, using the land by himself,
[028] the livery will be good, since time cures the defect,⁸ [especially if he returns under a
[029] new agreement, if a new agreement⁹ has been made,]¹⁰ and thus a gift may be
[030] good and valid though [the donor] converts the fruits and other things to his own
[031] use during his lifetime. Without prejudice to a better opinion it is submitted that
[032] having once withdrawn, whether he returns at once or after a time,¹¹ provided he
[033] does not act as lord but has completely changed his status, so that he acts as
[034] procurator, steward or servant where he formerly was lord, as assistant where

Notes

1. Infra iv, 43, 170

2. Inst. 4.15.5: ‘Possidere autem videtur non solum si ipse possideat sed et si eius nomine aliquis in possessione sit, licet eius iuri subjectus non sit, qualis est colonus et inquilinus.’

3. ‘sive imaginaria ... sive non,’ from lines 13-14

4. Infra 153

5. Supra 107, infra 151, 153, 154

6. Supra 130, infra iii, 277

7. Supra 107, infra 151, 153

8. Supra 107, infra 151

9. ‘conventio,’ all MSS.

10. Infra 151

11. Supra 107