Bracton: Thorne Edition: English. Volume 3, Page 298

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Volume 3, Page 298

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[001] the heir has had seisin after the death of the ancestor whose seisin is sought, because
[002] if the heir, when he once has seisin [and] has made gifts, could then recur to the
[003] assise, he could nullify gifts properly made by him.¹

What kind of seisin bars the assise.

[005] [We thus must see what kind of seisin bars the assise and what does not. It is clear
[006] that if seisin is momentary,² so that the tenant could not have made gifts and alienations
[007] in so short a time, or if he was within age so that his gifts ought not to hold,
[008] or if he [was in] for a short time after the death of his ancestor, by intrusion or
[009] disseisin, and was then quickly ejected,³ or the disseisee recovered against him by an
[010] assise of novel disseisin, that the heir will have the assise of mortdancestor despite
[011] such seisin, [because such seisin as he had is proved void or wrongful,] not only
[012] because the intrusion was short, but because during it no gift, alienation or change
[013] of possession was made by the heir, and if anyone was ejected he recovered⁴ his
[014] seisin as fully and completely as he lost it. But [quaere] if, when the heir afterwards
[015] claims by assise of mortdancestor and it is objected against him that he does
[016] not merit it, because he usurped to himself without judgment and on his own authority
[017] what he ought to claim by the assise, whether this exception ought to bar him?
[018] [I do not see why not.]⁵ If one puts forward the exception of seisin had earlier he
[019] must prove two things: that the heir has been in seisin and has made gifts while he
[020] was in seisin, and was of such an age that the gifts cannot be revoked or nullified,
[021] otherwise the exception will not be good. If the heir puts in a denial, the truth will
[022] be declared by the assise taken in the manner of a jury. If seisin had while [the heir]
[023] was below age is objected against him, it will not hurt him, because, despite such
[024] seisin, if he makes gifts under age he may revoke them by an assise of mortdancestor,
[025] a writ of entry or a writ of right, as he chooses, [whether he makes the gift [or] his
[026] guardian or another,]⁶ unless he has confirmed the gifts on reaching full age. He will
[027] not have the assise of novel disseisin against such donees because, though under age,
[028] he withdrew freely and of his own volition. But if the guardian makes a gift while the
[029] heir is within age, the heir will have an assise of novel disseisin and all the other remedies
[030] aforesaid. Note that seisin [taken] earlier bars the heir from an assise of mortdancestor,
[031] no matter what

Notes

1. Infra 299

2. ‘momentaria possessio’: C. 3.6.3; 3.16; 8.5.1.pr.

3. ‘eiectus fuit’

4. ‘recuperavit’

5. Supra 176

6. ‘custos sive alius’