Assize of mort d'ancestor

Last updated

In English law, the assize of mort d'ancestor ("death of ancestor") was an action brought where a plaintiff claimed the defendant had entered upon a freehold belonging to the plaintiff following the death of one of his relatives. The questions submitted to the jury were, "was A seised in his demesne as of fee on the day whereon he died?" and "Is the plaintiff his next heir?" [1] This assize enabled the heir to obtain possession, even though some other person might have a better right to the land than the deceased. [1]

Contents

Origins, development and end

Mort d'ancestor was one of the so-called "petty assizes" established by Henry II in the wake of the Assize of Clarendon (1166) and the Assize of Northampton (1176). [2] According to the Assize of Northampton, the lord must not prevent the heir having seisin forthwith on the ancestor's death, making this almost the final step in the development of common law heritability: [3] "4. Item, if any freeholder had died, let his heirs remain possessed of such 'seisin' as their father had. ... And according to the result of the inquest let restitution be made to his heirs". [4]

Doris Stenton has argued however that it was only some time after the Assize of Northampton that the (purchasable) writ of mort d'ancestor itself was introduced, allowing individuals to seek justice for themselves in the royal courts (as opposed to the general enquiries of the two main Assizes). [5] Whereas Northampton was mainly concerned with lords preventing heirs taking seisin, the new writ also covered the case of competing heirs to the same property. [6]

Like the other petty assizes, the new writ was immediately popular, being quicker, cheaper and simpler than feudal justice; [7] and like them too it gradually developed from a preliminary to a final action, while the range of relations who could claim heritage was also widened (in the 13th century) from close to far. [8]

With the other two petty assizes, it was abolished in 1833. [9]

Examples

Ranulf de Glanvill's Treatise on the Laws and Customs of the Kingdom of England give several examples of mort d'ancestor writs, which were issued to a sheriff as a command from the king. The general form was:

Two early instances of such an action are recorded in feet of fine from the reign of King John for a family dispute between members of the de Brantingham family in Yorkshire in 1202. [10] [11] On 22 August 1202, one Matilda (or Maud), daughter of John de Brantingham, brought an action under the assize of mort d'ancestor against her sisters, Mary and Alice de Brantingham. [10] Less than four months later, on 1 December 1202, John de Brantingham, son of Haldane the Deacon (and not to be confused with the later John de Brantingham, a Yorkshire clergyman), brought a similar action against his three daughters. [11]

In Ireland in the early 1300s John de Cogan succeeded in a claim for assize of mort d'ancestor before a Bench of judges headed by the Lord Chancellor of Ireland. [12] From the surviving records of the lawsuit the land in dispute seems to have been a substantial wooded area in Maynooth. [12]

Most such actions were in fact for very small areas of land, a few furlongs or a handful of acres. [6]

See also

Related Research Articles

The Assize of Clarendon was an act of Henry II of England in 1166 that began a transformation of English law and led to trial by jury in common law countries worldwide, and that established assize courts.

Assize or Assizes, in Old French originally "meeting, conference", may refer to judicial institutions or legal measures taken by those.

The forms of action were the different procedures by which a legal claim could be made during much of the history of the English common law. Depending on the court, a plaintiff would purchase a writ in Chancery which would set in motion a series of events eventually leading to a trial in one of the medieval common law courts. Each writ entailed a different set of procedures and remedies which together amounted to the "form of action".

Seisin denotes the legal possession of a feudal fiefdom or fee, that is to say an estate in land. It was used in the form of "the son and heir of X has obtained seisin of his inheritance", and thus is effectively a term concerned with conveyancing in the feudal era. The person holding such estate is said to be "seized of it", a phrase which commonly appears in inquisitions post mortem. The monarch alone "held" all the land of England by his allodial right and all his subjects were merely his tenants under various contracts of feudal tenure.

The Assize of Northampton, largely based on the Assize of Clarendon of 1166, is among a series of measures taken by King Henry II of England that solidified the rights of the knightly tenants and made all possession of land subject to and guaranteed by royal law.

Ejectment is a common law term for civil action to recover the possession of or title to land. It replaced the old real actions and the various possessory assizes where boundary disputes often featured. Though still used in some places, the term is now obsolete in many common law jurisdictions, in which possession and title are sued by the actions of eviction and quiet title, respectively.

Writs of praecipe are a widespread feature of the common law tradition, generally involving the instigation of some form of swift and peremptory action.

In English law, the assize of novel disseisin was an action to recover lands of which the plaintiff had been disseised, or dispossessed. It was one of the so-called "petty (possessory) assizes" established by Henry II in the wake of the Assize of Clarendon of 1166; and like the other two was only abolished in 1833.

<span class="mw-page-title-main">Assize of darrein presentment</span>

In English law, the assize of darrein presentment was an action brought to determine who was the last patron to appoint to a vacant church benefice – and thus who could next appoint – when the plaintiff complained that he was deforced or unlawfully deprived of the right to appoint by the defendant.

Henry of Braybrooke was an English High Sheriff and justice.

<span class="mw-page-title-main">Assizes</span> Periodic courts held around England and Wales until replaced by the Crown Court in 1972

The courts of assize, or assizes, were periodic courts held around England and Wales until 1972, when together with the quarter sessions they were abolished by the Courts Act 1971 and replaced by a single permanent Crown Court. The assizes exercised both civil and criminal jurisdiction, though most of their work was on the criminal side. The assizes heard the most serious cases, which were committed to it by the quarter sessions, while the more minor offences were dealt with summarily by justices of the peace in petty sessions.

The Brantinghams are a super-noble family from North East England, originally from Brantingham in Yorkshire.

A glossary of land law contains mostly middle English concepts, which are often found in older judgments, and refer to obsolete rights or remedies.

An Inquisition post mortem is an English medieval or early modern record of the death, estate and heir of one of the king's tenants-in-chief, made for royal fiscal purposes. The process of making such inquisition was effected by the royal escheators in each county where the deceased held land. The earliest inq.p.m. was made in 1236, in the reign of King Henry III (1216–1272), and the practice ceased c.1640, at the start of the English Civil War, and was finally abolished by the Tenures Abolition Act 1660, which ended the feudal system.

<i>Taltarums Case</i> 15th century English legal case

Taltarum's Case is the name given to an English legal case heard in the Court of Common Pleas, with decisions being handed down in 1465 and 1472. The case was long thought to have established the operation of the common recovery, a collusive legal procedure that was, until finally abolished in 1833, an important element of English law of real property. By means of a complex legal fiction, a recovery converted a freehold or copyhold property held in fee tail, which could not be freely sold or disposed of, into an estate in fee simple, which could be disposed without restriction.

The Grand Assize was a legal instrument set up in 1179 by King Henry II of England, to allow tenants to transfer disputes over land from feudal courts to the royal court.

The Court of Common Pleas of the County Palatine of Lancaster, sometimes called the Common Pleas of or at Lancaster was a court of common pleas that exercised jurisdiction within the County Palatine of Lancaster until its jurisdiction was transferred to the High Court by the Supreme Court of Judicature Act 1873. It was a Superior Court of Record, exercising, within the limits of the County Palatine, a jurisdiction similar to that of the superior courts of common law at Westminster.

John de Ponz, also called John de Ponte, John Savan, or John of Bridgwater (c.1248-1307) was an English-born administrator, lawyer and judge in the reign of King Edward I. He served in the Royal Household for several years before moving to Ireland, where he practised in the Royal Courts as the King's Serjeant-at-law (Ireland). He later served as a justice in eyre, and then as a justice of the Court of Common Pleas (Ireland). He was clearly a gifted lawyer, but as a judge, he was accused of acting unjustly.

References

  1. 1 2 "Introduction: Original Writs". British History Online. Retrieved 2017-01-17.
  2. ↑ An introduction to English Legal History, J.H. Baker 4th edition Oxford University press, p 234
  3. ↑ "Early Actions", in Historical Foundations of the Common Law, S. F. C. Milsom
  4. ↑ Assize of Northampton, in D. Baker ed., The Early Middle Ages (London 1966) p. 150
  5. ↑ Doris Stenton, 'England: Henry II', in Cambridge Medieval History Vol V (Cambridge 1926) p. 586-7
  6. 1 2 W. Warren, Henry II (1973) p. 344
  7. ↑ S. H. Steinberg ed., A New Dictionary of British History (London 1963) p. 282
  8. ↑ S. H. Steinberg, ed. (1963), A New Dictionary of British History, London, p. 282 and p. 229
  9. ↑ Chisholm, Hugh, ed. (1911). "Assize"  . Encyclopædia Britannica (11th ed.). Cambridge University Press.
  10. 1 2 The Surtees Society: 48
  11. 1 2 The Surtees Society: 76
  12. 1 2 Calendar of Irish Chancery Letters c.1244-1509

Bibliography

Further reading

This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.