Bracton: Thorne Edition: English. Volume 2, Page 149

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Volume 2, Page 149

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[001] it ought not, because the obligation still continues between the heirs of the first
[002] tenant and those of the sub-tenant, nor are the latter deprived by disuse since they
[003] would have used if they could.¹ Thus by special agreement one may renounce
[004] matters introduced for his own protection and that of his people,² who
[005] derive their cause and origin from him. ³One may renounce matters introduced
[006] for the benefit of himself and his own, contrary to common right, but by the same
[007] token he cannot renounce matters introduced for the benefit of others, to their
[008] prejudice, for that would be a wrong to them since they do not wish it [though]
[009] not wrongful to him since he does,⁴ though contrary to common right. For to one
[010] who knows and consents no injuria is done,⁵ and it is said ‘who knows and
[011] consents,’ because he who errs does not consent.⁶ ⁷Suppose that one makes a gift
[012] in these words, ‘to hold to such a one and his heirs or to whom he wishes to give
[013] or devise.’ At first sight it seems that the word ‘devise’ is without effect and must
[014] be disregarded, since a lay fee, unless it lies in special lands, as in burgages, cannot
[015] be devised. Hence if a fee of that kind is sought in a testamentary action in a
[016] secular court the legatee cannot be heard, for a testamentary action is not a matter
[017] treated in such a court but one specifically excepted from being considered. And
[018] if such a fee is sought in an ecclesiastical court, there a royal prohibition will bar
[019] the legatee,⁸ and thus it is evident that in whichever court he sues an action will
[020] fail him, [that is], when he is out of possession. But if he is in possession by virtue of
[021] the devise and the heir claims by assise of mortdancestor, quaere whether the demandant's
[022] action may be destroyed by the exception of gift by way of devise, since
[023] [the heir's] ancestor, the testator, so intended, though contrary to common right.
[024] I answer: it is submitted that this addition ought not to permit him to devise,
[025] since a devise is a gift mortis causa and is simply confirmed by death, a gift⁹ inter vivos
[026] by livery. If it is to take effect as a gift inter vivos, livery must follow in the life of the
[027] donor; if mortis causa, livery follows after death. But if there is no livery before death
[028] a gift inter vivos will not be valid, any more than would an assignment.¹⁰ If livery
[029] is made after death, as though it were a devise, [but] by force of a modus added to the
[030] gift, as though it were a gift inter vivos, it will not be good as a gift inter vivos because
[031] not followed by livery in the life [of the donor] nor as a devise because it is not a pure
[032] devise, [the words] being an addition or supplement to a gift inter vivos. Hence it
[033] ought to be valid under neither rationale, neither as a gift nor as a devise, and since
[034] no action would be available to the donee if he were out of seisin, and properly so,
[035] no exception against the assise of mortdancestor will lie for him when he is in seisin.¹¹

How one ought to use his seisin.

[037] After possession has been acquired, though the donee at once has a

Notes

1. Infra 167

2. C. 2.3.29.1.: supra 148

3. New paragraph

4. D. 39.3.9.1: ‘nullam enim potest videri iniuriam accipere qui semel voluit.’

5. Drogheda, 52, 175, 277, 407: infra 156; cf. Woodbine in Yale L. Jour. xxxi, 839

6. Supra 137, infra 174

7. New paragraph

8. Supra 70

9. ‘donatio,’ all MSS.

10. Supra 75

11. Cf. supra 70, infra 178