Bracton: Thorne Edition: English. Volume 3, Page 321

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Volume 3, Page 321

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[001] the elder quickly ejects him, he will not recover, because of tenuous¹ seisin. If [the
[002] elder] cannot eject him at once and without delay, let him make the matter contentious
[003] by interpellatio² or diligent impetration;³ then the younger will never have
[004] peaceful seisin, thus no free tenement and consequently no seisin. Therefore [if]
[005] the exception of equality does not lie⁴ for him, since he is only in seisin to the extent
[006] of a bare entry, an assise of mortdancestor will well lie between the elder and
[007] younger brothers just as against any stranger. When, in such circumstances, a
[008] younger brother makes a gift of the common inheritance and is vouched to warranty
[009] by his feoffee,⁵ we must see what kind of seisin the younger brother had⁶ before the
[010] gift, in the light of what is said above, and according to that, when he has warranted,
[011] the assise will either proceed against the younger brother who warranted or will
[012] remain, because it has come to the case⁷ in which a writ of right lies. Nor may anyone
[013] make a gift except one who has seisin.> ⁸<There is a dispute among the great⁹ with
[014] respect to the following case: if a younger brother, who cannot be ejected without
[015] judgment, is in possession of the paternal inheritance and enfeoffs another thereof,
[016] and the feoffee, when the elder brother brings the assise of mortdancestor against him,
[017] vouches his feoffor to warranty, that is, the younger brother, who warrants him and
[018] then answers to the assise that mortdancestor does not lie between him and his
[019] elder brother because of equality of possessory right, but only the writ of right, ought
[020] the assise to proceed or not? Some say that it ought not to proceed, because of the
[021] equality of right, no more than it would if he had not enfeoffed another, since by his
[022] warranty the younger brother is made quasi-tenant and dominus, so that the case
[023] must proceed by writ of right, where neither the duel nor the grand assise lies but
[024] only a narratio on the descent and the greater right.¹⁰ Others say that the assise must
[025] proceed, because in truth, though the younger brother has warranted and is bound
[026] to defend the possessor in his seisin, he himself does not possess, which may be
[027] proved in many ways, for the tenant who vouches to warranty, though he has been
[028] warranted, does not withdraw from seisin but will await the outcome of the plea
[029] between his warrantor and the demandant: if his warrantor can defend him, he will
[030] remain in seisin; if not, only then, when his warrantor has judgment against him,
[031] will he be ejected from seisin and obtain escambium from his warrantor's land. It is
[032] evident, therefore, that the younger brother is not in seisin, and for that reason that
[033] the assise

Notes

1. ‘teneram’

2. D. 8.2.32.1; 23.5.16; 41.5.2.pr.

3. Supra 285, 313

4. ‘competat’

5. ‘feoffatum’

6. ‘habuit’

7. D. 9.2.16; supra 66, 114, infra 323, iv, 289

8. Supra i, 407, infra 323

9. Supra ii, 19

10. Supra 283, 320