Bracton: Thorne Edition: English. Volume 3, Page 313

Harvard Law School Library

Bracton Online -- English

Volume 3, Page 313

Next

Go to Volume: Page:

[001] and action must be by a writ of right. Let a grand assise proceed¹ between them by
[002] these words, ‘whether she who is the tenant has a greater right in that land, as in
[003] land which was given in maritagium to such a one, the first husband, with such a
[004] one, the common mother, and the heirs of their two bodies issuing, than such a
[005] one, the brother by a second husband who claims, has in it as in land which was given
[006] in maritagium with such a one, the common mother, and the heirs of the mother.’
[007] In this case the matter will not be determined by count counted as between coheirs.²
[008] Let the same be done if villeinage is objected, or that the demandant was
[009] begotten of the seed of a felon, with respect to the maternal inheritance, as will be
[010] explained below in the tractate on the writ of right. Between co-heirs an assise of
[011] mortdancestor will not lie, [It does not proceed where a younger brother has³ such
[012] seisin through time that he cannot be ejected without writ.⁴ Since by such seisin he is
[013] the equal of the older brother and nearer heir with respect to possession, no action
[014] can be brought except by writ of right on the right and the property.]⁵ since the
[015] younger and older have equal rights to seisin, and the matter will be determined in a
[016] writ of right by count counted.⁶ But if the younger does not have such seisin, [long,
[017] as aforesaid, between parties who were present and longer between absentees,
[018] according as the older is traveling in remote or more remote parts, as in the Holy Land
[019] or on some other pilgrimage in parts across the sea, distant or more distant, [and so]
[020] within the realm, outside the county or within it, or in prison, or detained by a
[021] serious illness,]⁷ and [the older] cannot eject the younger at once, an assise of
[022] mortdancestor will well lie between such co-heirs just as between strangers, because,
[023] since the younger cannot have a free tenement through time and long and peaceful
[024] seisin,⁸ he will never be the equal of the older with respect to possession, but a
[025] stranger so far as an assise of mortdancestor is concerned, because his seisin is
[026] valueless. And so if when the older cannot enter he immediately sues by writ, or
[027] immediately puts forward his claim, by which the possession of the younger is
[028] interrupted, so that he will never be the equal of the older with respect to possession.⁹
[029] And the same may be observed between cousins, if suit is brought by writ of cosinage.¹⁰
[030] [If] when there are three brothers the eldest enfeoffs his middle brother, to
[031] hold to himself and his heirs, he either enfeoffs him [for homage or] without homage.
[032] [If without homage and] he dies without an heir of his body, the eldest brother and
[033] feoffor will be his nearer heir and the tenement may remain with him.

Notes

1. ‘procedat’

2. Supra 283

3. ‘habuerit’

4. Supra ii, 188

5. Om: ‘nec procedet . . . mortis’

6. Infra 320

7. Infra 320

8. ‘seisina’; infra 320

9. Supra ii, 189; infra 321

10. Infra 320