Bracton: Thorne Edition: English. Volume 2, Page 81

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Volume 2, Page 81

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[001] to the donor by tacit condition, and pacts immediately added become parts of
[002] agreements, impose a law upon them and fashion them.¹ The question arises,
[003] therefore, which portion shall prevail. Some say the homage, since it is the first
[004] and principal agreement and the maritagium merely accessory to it; others the
[005] maritagium, since as is evident, the land was given out of affection for the woman
[006] and on the occasion of her marriage, and [because] an earlier agreement ought to
[007] be superseded by a later.² But the better view, it is submitted, is that the homage
[008] ought to prevail,³ [an opinion] which may be supported by a number of reasons.
[009] If it is said, ‘I give such a person so much land (by way of a modus) that he take
[010] my daughter as wife,’ or by way of a condition, ‘if he takes my daughter as wife,’
[011] and the donee marries another or betakes himself to other vows,⁴ a repetitio is
[012] available to the donor (though the gift is complete) because it was given for a
[013] causa that did not follow.⁵ Hence if after he has married another the donor
[014] promptly ejects him he will not recover by the assise of novel disseisin. He is taken
[015] to be ejected promptly [if he is ejected] at the time the marriage is contracted, or
[016] within the third or fourth day after it, [or after notice has reached him,]⁶ or within
[017] a short time thereafter if there is reason for such extension. On this there is matter
[018] [in the roll] of the eyre of the abbot of Reading and Martin of Pateshull in the
[019] county of Leicester, an assise of novel disseisin [beginning] ‘if Robert, son of Mary.’⁷
[020] But the same result will not follow if, as agreed, the donee marries the daughter
[021] and they are afterwards divorced, for the modus or condition is satisfied. But the
[022] gift may be reclaimed in another way, depending upon whether the married couple
[023] have had heirs or not. Let this account of the maritagium suffice for the present
[024] by way of illustration.

That a maritagium reverts for failure of heirs.

[026] [A thing] sometimes reverts to the donor for failure of heirs.⁸ Whether homage has
[027] been taken or not,⁹ there sometimes is¹⁰ a reversion to the donor for failure of heirs by
[028] force of a modus, tacit or express, [tacit], as where land is given in maritagium or to a
[029] bastard. Also by force of a condition, tacit or express, tacit, as [where], though no
[030] mention is made in the gift of a reversion, the thing must of necessity revert to the
[031] donor since the mere right has no other to whom it may descend.¹¹ A thing that has so

Notes

1. Supra 50, 64, infra 287, iii, 144

2. D. 2.14.27.2: ‘prius pactum per posterius eliditur’

3. Infra 97, 147

4. X. 4.17.12: ‘ad alia vota transiverit’

5. D. 12.6.52: ‘ob rem vero datur ut aliquid sequatur, quo non sequente repetitio competit’; supra 73, infra 98, 144, iii, 29

6. Reading: ‘vel post scientiam’; infra iii, 22

7. B.N.B., no. 1965; no roll extant

8. Rubric; rubric above erroneous

9. Om: ‘videndum igitur . . . sciendum quod’

10. ‘sit’

11. Infra 188, 195, 267