Bracton: Thorne Edition: English. Volume 2, Page 133

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Volume 2, Page 133

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[001] earlier he was¹ master and ruler, the gift and livery will not be feigned, for by
[002] act and use the truth is made clear. ²When both are in possession and the donor has
[003] once withdrawn, or when the donee is in possession the donor regrets his gift, and,
[004] when he cannot re-enter, puts himself into some portion of the land given, he disseises,
[005] the donee,³ for though the donee⁴ has not circumambulated the entire estate
[006] and does not occupy every part of it, he nevertheless acquired the whole by livery,
[007] since he then obtained seisin with the intention of possessing the entire estate with
[008] the appurtenances to its boundaries,⁵ and because, at the livery, the donor reserved
[009] nothing to himself; if he had, it would be otherwise.⁶ ⁷Suppose that a donor in
[010] his gift and livery makes the exception that the donee not use or enjoy; the gift
[011] will be complete, but useless, having neither purpose nor profit.⁸ ⁹Suppose that a
[012] procurator conducting the affairs of his lord buys a thing in his absence or stipulates
[013] for it by way of gift; the donor, after livery, withdraws animo and corpore, the
[014] procurator in his lord's name enters into possession corpore with the animus retinendi,
[015] and when the lord is informed¹⁰ he disavows his procurator's act. A stranger intervenes
[016] and ejects the procurator. To whom is the assise available? Not to the donor,
[017] for he withdrew from possession animo and corpore; not to the procurator, since
[018] he did not [take possession] in his own name but another's; not to the lord because
[019] he disapproved his procurator's act. It seems, therefore, that [the land] will remain
[020] with the disseisor, which would be unfair since one ought not to profit by his own
[021] wrong.¹¹ In truth, the assise is available to the donor, for though he withdrew
[022] animo and corpore he did not cease to possess since the donee never began to do so.
[023] ¹²One begins to possess when, with the consent of the donor, he has obtained
[024] vacant possession corpore with the animus retinendi, through the donor or his
[025] procurator [or] by letters and¹³ a messenger, as was said above,¹⁴ but [what if] the
[026] donor has sent his procurator or messenger and, before livery has been made,
[027] he regrets his gift; may the gift be revoked because of his change of mind? It is submitted
[028] that it may. But it depends upon whether or not the procurator or messenger
[029] has notice of the changed will of the donor. If he has, the gift will be void, though
[030] livery has followed; if he has not, the gift will be good. Suppose that the donor
[031] dies before livery; the gift is invalid, whether [the procurator or messenger] knows
[032] of his death or not.¹⁵ The same is true if the donee dies before livery, where
[033] possession has been obtained through a procurator. Suppose that,

Notes

1. ‘fuit’

2. New paragraph

3. Infra 154

4. ‘donatarius,’ as supra 125, infra 150

5. D. 41.2.3.1; supra 125, infra 150

6. Infra 150, 151

7. New paragraph

8. Supra 131-2

9. New paragraph

10. ‘certioratus [fuerit] factum’; cf. supra 129, infra 136

11. Drogheda, 128: ‘cum ex delicto suo commodum non debet reportari;’ X.2.1.7: ‘de sua malitia commodum reportare’

12. New paragraph

13. ‘et’

14. Supra 124, 130

15. Cf. infra 137