Bracton: Thorne Edition: English. Volume 2, Page 192

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Volume 2, Page 192

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[001] mother from whom the right descends; if from different ones, then unequals.
[002] Proximity of blood must be considered just as proximity of succession.> It makes a
[003] difference from whom the acquisition is made, whether from a stranger, the common
[004] father, or another ancestor, as an elder brother. A case may be put of three
[005] brothers in this way: [suppose] that a common father enfeoffs¹ his eldest son, who is
[006] his nearer heir, and the eldest son dies without an heir of his body before the inheritance
[007] descends to him; the middle brother will succeed to the acquisition as his nearer
[008] heir and the youngest son will then be nearer heir to the middle brother. If during the
[009] life of the eldest brother the paternal inheritance descends to him and homage
[010] has been done from the acquired property, succession and the right to succession
[011] to it will immediately belong to the middle brother, since the eldest cannot be
[012] heir and lord.² For the acquisition and lordship over it are incompatible with one
[013] another because of the homage, for the homage bars the acquisition. But if the
[014] acquisition is from a stranger, that is, from someone other than the common
[015] ancestor, and the inheritance falls to him, the homage done to the stranger from
[016] the acquisition does not bar the acquisition, since the eldest son will not here be
[017] both heir and lord. But suppose the gift was made to a younger son by the common
[018] father or by the eldest brother and he dies without an heir of his body; his eldest
[019] brother will be his younger brother's nearer heir and the acquisition³ will remain
[020] with him, if no homage has been done. [And though homage has been done [to the
[021] father] and the paternal inheritance descends to him, the eldest will always have
[022] first seisin by the assise of mortdancestor if the chief lord or a stranger has put
[023] himself in seisin; if the middle brother has put himself in seisin first the eldest's
[024] remedy then is by writ of right.]⁴ ⁵If homage has been done [and] if there is a nearer
[025] heir to the eldest who claims, it cannot remain with him for the aforesaid reason, but
[026] the right will descend to the children of the eldest,⁶ if he has children, his eldest son
[027] or [his] daughter, and their remedy, if they wish to claim seisin, is by writ of right,
[028] making their computation and count on the seisin of the younger brother. But if the
[029] eldest has no children, then the descent of the right⁷ is to the middle brother and an
[030] action by writ of right lies for him as it lay for the children aforesaid. But what if the
[031] eldest begins to have children while the middle brother is prosecuting his claim?
[032] When such are born the action of the brother falls and an action begins to lie for the
[033] children. But what if the [middle] brother has recovered seisin before such children
[034] are born?

Notes

1. ‘feoffaverit’

2. Glanvill, vii, 1; supra 83, 110, infra iii, 295, 308, 314, iv, 31

3. ‘perquisitum’

4. Infra iii, 307-8: B.N.B., no. 564, note

5. Om: ‘Et cum ... habuerit,’ a connective

6. ‘antenati’

7. ‘iuris’