Bracton: Thorne Edition: English. Volume 3, Page 274

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Volume 3, Page 274

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[001] if he is hindered with respect to his seisin,¹ that he have [the same] seisin of the tenement
[002] that his ancestor had, and be recognized as heir, saving to the farmer his term.
[003] If the term has passed, and the farmer attempts to retain the tenement beyond the
[004] term, or transfers it to another, within the term or after it, an assise of novel disseisin
[005] lies for the heir if he so wishes.² Similarly, the assise of mortdancestor lies for his heir
[006] on the seisin of one within age who dies within age, despite the usufruct which a
[007] farmer or a guardian enjoys, of which the ancestor of the minor did not have seisin on
[008] the day he died, nor the minor while he lived, because though he does not himself
[009] use, he uses through others who are in seisin in his name, for he acts in whose name
[010] an act is done,³ as in the case of those who hold in villeinage, who use and enjoy not
[011] in their own names but in that of their lord, and hence, though another has the
[012] usufruct on the day the ancestor died, he may be said to die seised in his demesne as
[013] of fee, with respect to the free tenement and the fee, not to the use, so that the assise
[014] does not determine the use any more than if the tenement were held in villeinage.
[015] One may hold a tenement in demesne and in fee, and another hold it in service or
[016] with respect to its use. One may hold in fee as regards the service, as a chief lord,
[017] and not in demesne, and another may hold in fee and in demesne and not in service,
[018] as a free tenant; and thus though the tenant sells his tenement to another, the buyer
[019] does not enter the chief lord's fee,⁴ since he has nothing therein except service,
[020] nothing in demesne except service alone, only into the fee and demesne of the tenant,
[021] nor does the tenant do the chief lord an injuria, though he does him damage,
[022] because he may have his service and distrain his fee no matter who holds it.⁵ A
[023] tenant may therefore sell his tenement when and to whom he wishes (unless at the
[024] outset a modus is added between them that he may not)⁶ otherwise the lord would
[025] commit a disseisin to his tenant.

Also ‘as of fee.’

[027] The writ also contains the words ‘as of fee,’ which the demandant must prove as he
[028] must the other clauses. Thus we must see what may be held in fee and what a fee is.
[029] It is clear that a fee is that which one holds, by virtue of a causa of some kind, to
[030] himself and his heirs,⁷ whether it is a tenement or a rent, provided that ‘rent’ is not
[031] taken to mean that which issues out of a chamber,

Notes

1. Infra 276

2. Supra 30, 162

3. Om: ‘et si . . . per alios’

4. Supra ii, 143

5. Supra ii, 67, 78, 143

6. Supra ii, 50, 55, 142, 143

7. Supra ii, 83