De usurpationibus et usucapionibus
(Concerning the interruption of prescription, and usucaption.)
1 Gaius libro vicensimo primo ad edictum provinciale. Bono publico usucapio introducta est, ne scilicet quarundam rerum diu et fere semper incerta dominia essent, cum sufficeret dominis ad inquirendas res suas statuti temporis spatium.
1 Gaius, On the Provincial Edict, Book XXI. Usucaption was introduced for the public welfare, and especially in order that the ownership of certain property might not remain for a long time, and almost forever, undetermined; as a sufficient time is granted to owners to make inquiry after their property.
2 Paulus libro quinquagensimo quarto ad edictum. Usurpatio est usucapionis interruptio: oratores autem usurpationem frequentem usum vocant.
2 Paulus, On the Edict, Book LIV. Usurpation is the interruption of usucaption. Orators call usucaption frequent use.
3 Modestinus libro quinto pandectarum. Usucapio est adiectio dominii per continuationem possessionis temporis lege definiti.
3 Modestinus, Pandects, Book V. Usucaption is the addition of ownership by means of continuous possession for a time prescribed by law.
4 Paulus libro quinquagensimo quarto ad edictum. Sequitur de usucapione dicere. et hoc ordine eundum est, ut videamus, quis potest usucapere et quas res et quanto tempore. 1Usucapere potest scilicet pater familias. filius familias et maxime miles in castris adquisitum usucapiet. 2Pupillus si tutore auctore coeperit possidere, usucapit: si non tutore auctore possideat et animum possidendi habeat, dicemus posse eum usucapere. 3Furiosus quod ante furorem possidere coepit, usucapit. sed haec persona ita demum usucapere potest, si ex ea causa possideat, ex qua usucapio sequitur. 4Servus pro herede possidere non potest. 5Fructus et partus ancillarum et fetus pecorum, si defuncti non fuerunt, usucapi possunt. 6Quod autem dicit lex Atinia, ut res furtiva non usucapiatur, nisi in potestatem eius, cui subrepta est, revertatur, sic acceptum est, ut in domini potestatem debeat reverti, non in eius utique, cui subreptum est. igitur creditori subrepta et ei, cui commodata est, in potestatem domini redire debet. 7Labeo quoque ait, si res peculiaris servi mei subrepta sit me ignorante, deinde eam nanctus sit, videri in potestatem meam redisse: commodius dicitur, etiamsi sciero, redisse eam in meam potestatem (nec enim sufficit, si eam rem, quam perdidit ignorante me, servus adprehendat): si modo in peculio eam esse volui: nam si nolui, tunc exigendum est, ut ego facultatem eius nactus sim. 8Ideoque et si servus meus rem mihi subripuerit, deinde eandem loco suo reponat, poterit usucapi, quasi in potestatem meam redierit, utique si nescii: nam si scivi, exigimus, ut redisse sciam in meam potestatem. 9Item si eam rem, quam servus subripuerit, peculiari nomine teneat, non videri in potestatem meam reversam Pomponius ait, nisi ita habere coeperimus, quemadmodum habuimus, antequam subriperetur, aut, cum rescissemus, in peculio eum habere concessimus: item Labeo. 10Si rem, quam apud te deposueram, lucri faciendi causa vendideris, deinde ex paenitentia redemeris et eodem statu habeas: sive ignorante me sive sciente ea gesta sint, videri in potestatem meam redisse secundum Proculi sententiam, quae et vera est. 11Si pupilli res subrepta sit, sufficere dicendum est, si tutor eius sciat redisse eam in domum pupilli: et si furioso, sufficere curatores scire. 12Tunc in potestatem domini redisse dicendum est, cum possessionem eius nactus sit iuste, ut avelli non possit, sed et tamquam suae rei: nam si ignorans rem mihi subreptam emam, non videri in potestatem meam reversam. 13Sed et si vindicavero rem mihi subreptam et litis aestimationem accepero, licet corporaliter eius non sim nactus possessionem, usucapietur. 14Idem dicendum est etiam, si voluntate mea alii tradita sit. 15Heres, qui in ius defuncti succedit, licet apud eum ignorantem ancillam furtivam esse conceperit ea et pepererit, non tamen usucapiet. 16De illo quaeritur, si servus meus ancillam, quam subripuit, pro libertate sua mihi dederit, an partum apud me conceptum usucapere possim. Sabinus et Cassius non putant, quia possessio, quam servus vitiose nanctus sit, domino noceret, et hoc verum est. 17Sed et si, ut servum meum manumitterem, alius mihi furtivam ancillam dederit eaque apud me conceperit et pepererit, usu me non capturum. idemque fore etiam, si quis eam ancillam mecum permutasset aut in solutum dedisset, item si donasset. 18Si antequam pariat, alienam esse rescierit emptor, diximus non posse eum usucapere: quod si nescierit, posse. quod si, cum iam usucaperet, cognoverit alienam esse, initium usucapionis intueri debemus, sicut in emptis rebus placuit. 19Lana ovium furtivarum si quidem apud furem detonsa est, usucapi non potest, si vero apud bonae fidei emptorem, contra: quoniam in fructu est, nec usucapi debet, sed statim emptoris fit. idem in agnis dicendum, si consumpti sint, quod verum est. 20Si ex lana furtiva vestimentum feceris, verius est, ut substantiam spectemus, et ideo vestis furtiva erit. 21Si rem pignori datam debitor subripuerit et vendiderit, usucapi eam posse Cassius scribit, quia in potestatem domini videtur pervenisse, qui pignori dederit, quamvis cum eo furti agi potest: quod puto rectius dici. 22Si tu me vi expuleris de fundi possessione nec adprehenderis possessionem, sed Titius in vacuam possessionem intraverit, potest longo tempore capi res: quamvis enim interdictum unde vi locum habeat, quia verum est vi me deiectum, non tamen verum est et vi possessum. 23Ceterum etiamsi mala fide fundum me possidentem deieceris et vendideris, non poterit capi, quoniam verum est vi possessum esse licet non a domino. 24Idem dicendum est in eo, qui eum expulit qui pro herede possidebat, quamvis sciat esse hereditarium, quoniam vi possidet. 25Si dominus fundi possessorem vi deiecerit, Cassius ait non videri in potestatem eius redisse, quando interdicto unde vi restituturus sit possessionem. 26Si viam habeam per tuum fundum et tu me ab ea vi expuleris, per longum tempus non utendo amittam viam, quia nec possideri intellegitur ius incorporale nec de via quis (id est mero iure) detruditur. 27Item si occupaveris vacuam possessionem, deinde venientem dominum prohibueris, non videberis vi possedisse. 28Libertatem servitutium usucapi posse verius est, quia eam usucapionem sustulit lex Scribonia, quae servitutem constituebat, non etiam eam, quae libertatem praestat sublata servitute. itaque si, cum tibi servitutem deberem, ne mihi puta liceret altius aedificare, et per statutum tempus altius aedificatum habuero, sublata erit servitus.
4 Paulus, On the Edict, Book LIV. In the next place, we must speak of usucaption; and, in doing so, we must proceed in regular order, and examine who can acquire property by usucaption, what property can be acquired in this manner, and what time is necessary. 1The head of a household can acquire by usucaption; a son under paternal control can also do so; and this is especially the case where, as a soldier, he obtains by usucaption property acquired during military service. 2A ward can acquire property by usucaption if he takes possession of it with the consent of his guardian. If he takes possession without the consent of his guardian, but still has the intention of doing so, we say that he can acquire the property by usucaption. 3An insane person, who takes possession before his insanity appears, acquires the property by usucaption; but such a person can only acquire it in this manner if he has possession by a title through which usucaption may result. 4A slave cannot hold possession as an heir. 5If the crops, the children of slaves, and the increase of flocks did not belong to the deceased, they can be acquired by usucaption. 6The Atinian Law provides that stolen property cannot be acquired by usucaption, unless it is restored to the control of the person from whom it was stolen; and this must be understood to mean that it must be restored to the owner, and not to him from whom it was secretly taken. Therefore, if property is stolen from a creditor to whom it was lent or pledged, it should be returned to the owner. 7Labeo also says that, if the peculium of my slave is stolen without my knowledge, and he afterwards recovers it, it will be held to have been restored to my control. It is more accurate to say, provided I was aware that the property had been returned to me. For it is not sufficient for the slave merely to recover the property which he had lost without my knowledge, but I must also have intended it to form part of his peculium, for if I did not wish this to be done, it will then be necessary for me to obtain actual control of it. 8Hence, if my slave steals anything from me, and afterwards returns the article to its place, it can be acquired by usucaption as having been restored to my control, just as if I did not know that it had been stolen; for if I did know it, we require that I should be aware that it had been returned to me. 9Moreover, if the slave should retain as part of his peculium the same property which he stole, it will not be considered to have been returned to me (as is stated by Pomponius), unless I have possession of it in the same way that I did before it was stolen; or if, when I learned that it had been taken, I consented that the slave should include it in his peculium,. 10Labeo says that if I deposit any property with you, and you sell it for the sake of gain, and then, having repented, you repurchase it, and retain it in the same condition in which it formerly was, whether I am ignorant or aware of the transaction, it will be considered to have been restored to my control, according to the opinion of Proculus, which is correct. 11Where the property of a ward is stolen, it must be held to be sufficient if his guardian was aware that it had been returned to the house of the ward. In the case of an insane person, it will be sufficient if his curators know that the property has been returned. 12Property must be considered to have been restored to the control of the owner when he recovers possession of it in such a way that he cannot be deprived of it. This must be done just as if the property was his; for if I purchase an article, not knowing that it has been stolen from me, it will not be held to have been restored to my control. 13Even if I should bring suit to recover property which has been stolen from me, and I accept payment of the amount at which it was appraised in court, it can be acquired by usucaption, even though I did not obtain actual possession of it. 14The same rule must be said to apply even if the stolen property has been delivered to another with my consent. 15An heir who succeeds to the rights of the deceased cannot acquire by usucaption a female slave whose mother had been stolen, and was found among the property of the deceased, provided the latter was not aware of the fact, if she conceived and brought forth the child while in his possession. 16If my slave steals a female slave and gives her to me in return for his freedom, the question arises whether I can acquire by usucaption the child of said female slave who conceived while in my possession. Sabinus and Cassius do not think that I can, because the illegal possession which is obtained by the slave would prejudice his master; and this is correct. 17If, however, anyone gives me a female slave who has been stolen, in order to induce me to manumit my slave, and the female slave conceives and has a child while in my possession, I cannot acquire that child by usucaption. The same rule will also apply if anyone gives me the said female slave in exchange, or by way of payment, or as a present. 18If the purchaser ascertains before she has the child that the female slave belongs to another, we say that he cannot acquire the child by usucaption, but he can do so if he was not aware of this. If, however, he should learn that she belongs to someone else, when he had already begun to acquire the child by usucaption; we must take into consideration the beginning of the usucaption, as has been decided in the case of property that has been purchased. 19If stolen sheep have been sheared while in possession of the thief, the wool cannot be acquired by usucaption. The rule is otherwise, however, in the case of a bona fide purchaser, as there is no need of usucaption, since the wool is a profit, the right to which immediately vests in the purchaser. The same rule can be said to apply to lambs, if they have been disposed of. This is true. 20If you make a garment of stolen wool, the better opinion is that we should consider the original material, and therefore the garment is stolen property. 21If a debtor steals anything given by him in pledge, and sells it, Cassius says that it can be acquired by usucaption, because it is considered to have come under the control of the owner who pledged it, although an action for theft can be brought against him. I think that this opinion is perfectly correct. 22If you forcibly deprive me of the possession of land, and you yourself do not take possession, but Titius, finding it unoccupied, does, he can acquire it by usucaption through lapse of time, for although it is true that an interdict on the ground of violence will lie, because I have been forcibly ejected; still, it is not true that Titius obtained possession by violence. 23But if you should eject me from land which I possess in bad faith, and sell it, it cannot be acquired by usucaption, for while it is true that possession has been obtained by force, this has not been done by the owner. 24The same rule must be said to apply to the case of one who ejected a person having possession as the heir, although he knew that the land formed part of an estate. 25Cassius says that if the owner of land forcibly ejects the party in possession, the land will not be considered to have again been brought under his control, as he who was ejected can recover possession of it by means of an interdict based on violence. 26If I have a right of way through your land, and you forcibly prevent me from using it, I will lose the right of way by not making use of it for a long time, because an incorporeal right is not considered susceptible of possession; and no one can be said to be deprived of a right of way, that is to say, of a mere servitude, in this manner. 27Likewise, if you take possession of land which is vacant, and afterwards prevent the owner from entering upon the same, you will not be considered to have taken forcible possession of the property. 28It is true that a release of a servitude can be acquired by usucaption, because the Scribonian Law, which established a servitude, prohibited the usucaption of one; but it does not grant a release if the servitude has already been extinguished. Hence, if I owe you a servitude, for instance, that which prevents me from building my house any higher, and I have kept it built higher for the prescribed time, the servitude will be extinguished.
5 Gaius libro vicensimo primo ad edictum provinciale. Naturaliter interrumpitur possessio, cum quis de possessione vi deicitur vel alicui res eripitur. quo casu non adversus eum tantum, qui eripit, interrumpitur possessio, sed adversus omnes. nec eo casu quicquam interest, is qui usurpaverit dominus sit nec ne: ac ne illud quidem interest, pro suo quisque possideat an ex lucrativa causa.
5 Gaius, On the Provincial Edict, Book XXI. Possession is naturally interrupted when anyone is forcibly deprived of it, or the property is stolen from him; in which instance possession is interrupted, not only with reference to him who stole the property, but with reference to everyone else. Nor, under these circumstances, does it make any difference whether he who obtained legal possession is the owner of the property or not. Nor is it material whether the person in question possesses the property as the owner, or merely for the purpose of profiting by it.
6 Ulpianus libro undecimo ad edictum. In usucapionibus non a momento ad momentum, sed totum postremum diem computamus.
6 Ulpianus, On the Edict, Book XI. In the case of usucaption, the time is not reckoned from moment to moment, but we compute the entire last day of the prescription.
7 Idem libro vicensimo septimo ad Sabinum. Ideoque qui hora sexta diei kalendarum Ianuariarum possidere coepit, hora sexta noctis pridie kalendas Ianuarias implet usucapionem.
7 The Same, On Sabinus, Book XXVII. Therefore, anyone who begins to have possession at the sixth hour of the day of the Kalends of January will complete the usucaption on the sixth hour of the night preceding the Kalends of January.
8 Paulus libro duodecimo ad edictum. Labeo Neratius responderunt ea, quae servi peculiariter nancti sunt, usucapi posse, quia haec etiam ignorantes domini usucapiunt: idem Iulianus scribit. 1Sed eum, qui suo nomine nihil usucapere potest, ne per servum quidem posse Pedius scribit.
8 Paulus, On the Edict, Book XII. Labeo and Neratius held that all the property which slaves have acquired as their peculium can be obtained by usucaption, because it is obtained in this way by their owners, even without the knowledge of the latter. Julianus says the same thing. 1Pedius says that a person who cannot acquire anything by usucaption in his own name cannot acquire it by his slave.
9 Gaius libro quarto ad edictum provinciale. Usucapionem recipiunt maxime res corporales, exceptis rebus sacris, sanctis, publicis populi Romani et civitatium, item liberis hominibus.
9 Gaius, On the Provincial Edict, Book IV. Corporeal property is especially subject to usucaption, with the exception of sacred and holy things, and such as are the public property of the Roman people, and of cities, as well as persons who are free.
10 Ulpianus libro sexto decimo ad edictum. Si aliena res bona fide empta sit, quaeritur, ut usucapio currat, utrum emptionis initium ut bonam fidem habeat exigimus, an traditionis. et optinuit Sabini et Cassii sententia traditionis initium spectandum. 1Hoc iure utimur, ut servitutes per se nusquam longo tempore capi possint, cum aedificiis possint. 2Scaevola libro undecimo quaestionum scribit Marcellum existimasse, si bos apud furem concepit vel apud furis heredem pariatque apud furis heredem, usucapi ab herede distractum iuvencum non posse: sic, inquit, quemadmodum nec ancillae partus. Scaevola autem scribit se putare usucapere posse et partum: nec enim esse partum rei furtivae partem. ceterum si esset pars, nec si apud bonae fidei emptorem peperisset, usucapi poterat.
10 Ulpianus, On the Edict, Book XVI. Where property belonging to another has been purchased in good faith, the question arises in order that the usucaption may run, whether, for the preservation dt good faith, it should date from the beginning of the purchase, or from the time of delivery. The opinion of Sabinus and Cassius, which is that it dates from the time of delivery, has been adopted. 1It is our practice that servitudes can never, of themselves, be acquired by usucaption, but that this can be done along with the buildings upon which they are imposed. 2Scævola, in the Eleventh Book of Questions, says that Marcellus thought that if a cow should conceive while in the possession of a thief, or of his heir, and bring forth while in the possession of his heir, the calf, separated from its mother, cannot be acquired by usucaption by the heir; just as he says this cannot be done with the child of a female slave. Scævola, however, states that, in his opinion, the child can be acquired by usucaption, because it does not form part of the stolen property. If, however, it should be a part of it, it can be acquired by usucaption, if it was born while in possession of a bona fide purchaser.
11 Paulus libro nono decimo ad edictum. Neque servus neque per servum dominus, qui apud hostes est, possidet.
11 Paulus, On the Edict, Book XIX. Neither a slave, nor a master who is in the power of the enemy, can acquire possession through the medium of his slave.
12 Idem libro vicensimo primo ad edictum. Si ab eo emas, quem praetor vetuit alienare, idque tu scias, usucapere non potes.
12 The Same, On the Edict, Book XXI. If you purchase property from one whom the Prætor has forbidden to alienate it, and you are aware of the fact, you cannot acquire it by usucaption.
13 Idem libro quinto ad Plautium. Pignori rem acceptam usu non capimus, quia pro alieno possidemus. 1Eum, qui a furioso bona fide emit, usucapere posse responsum est. 2Si mandavero tibi, ut fundum emas, ex ea causa traditum tibi diutina possessione capis, quamvis possis videri non pro tuo possidere, cum nihil intersit, quod mandati iudicio tenearis.
13 The Same, On Plautius, Book V. We cannot acquire by usucaption property which has been taken in pledge, because we possess it in behalf of another. 1It has been decided that anyone who has purchased property in good faith from an insane person can acquire it by usucaption. 2If I direct you to buy a tract of land, you can obtain it by usucaption, after it has been delivered to you for this reason, although you cannot be considered to possess it as yours, as the fact that you are liable to an action on mandate makes no difference.
14 Idem libro tertio decimo ad Plautium. Id tempus venditoris prodest emptori, quo antequam venderet possedit: nam si postea nactus est possessionem venditor, haec possessio emptori non proficiet. 1In re legata in accessione temporis, quo testator possedit, legatarius quodammodo quasi heres est.
14 The Same, On Plautius, Book XIII. The time during which the vendor held property before selling it is an advantage to the purchaser, for if the vendor obtained possession afterwards, this will be of no benefit to the purchaser. 1With reference to property which is bequeathed, the legatee is considered to occupy the same position as the heir, so far as the benefit of the time during which the testator possessed the property is concerned.
15 Idem libro quinto decimo ad Plautium. Si is, qui pro emptore possidebat, ante usucapionem ab hostibus captus sit, videndum est, an heredi eius procedat usucapio: nam interrumpitur usucapio, et si ipsi reverso non prodest, quemadmodum heredi eius proderit? sed verum est eum in sua vita desisse possidere, ideoque nec postliminium ei prodest, ut videatur usucepisse. quod si servus eius, qui in hostium potestate est, emerit, in pendenti esse usucapionem Iulianus ait: nam si dominus reversus fuerit, intellegi usucaptum: si ibi decesserit, dubitari, an per legem Corneliam ad successores eius pertineat. Marcellus posse plenius fictionem legis accipi, quemadmodum enim postliminio reversus plus iuris habere potest in his, quae servi egerunt, quam his, quae per se vel per servum possidebat, cum ad hostes pervenit. nam hereditatem in quibusdam vice personae fungi receptum est. ideoque in successoribus locum non habere usucapionem. 1Si servus, quem possidebam, fugerit, si pro libero se gerat, videbitur a domino possideri: sed hoc tunc intellegendum est, cum, si adprehensus fuerit, non sit paratus pro sua libertate litigare: nam si paratus sit litigare, non videbitur a domino possideri, cui se adversarium praeparavit. 2Si quis bona fide possidens ante usucapionem amissa possessione cognoverit esse rem alienam et iterum nanciscatur possessionem, non capiet usu, quia initium secundae possessionis vitiosum est. 3Si ex testamento vel ex stipulatu res debita nobis tradatur, eius temporis existimationem nostram intuendam, quo traditur, quia concessum est stipulari rem etiam quae promissoris non sit.
15 The Same, On Plautius, Book XV. If a person who possessed the property as a purchaser is taken prisoner by the enemy before usucaption has taken place, let us see whether his heir will obtain any benefit from the usucaption, for it is interrupted; and if it is of no advantage to him on his return, how can it profit his heir? It is, however, true that he has ceased to possess the property, and therefore the right of postliminium will not benefit him to the extent that he may be considered to have acquired it by usucaption. If the slave of a person who was in the power of the enemy should purchase property, Julianus says that the usucaption of the same will remain in abeyance; for if the owner returns, the usucaption is understood to have taken place. If, however, the owner should die while in the hands of the enemy, it may be doubted whether the property will belong to his successors under the Cornelian Law. Marcellus thinks that the legal fiction is capable of a broader application, for one who has returned under the law of postliminium, has a better right to things which have been acquired by his slaves than to those which he himself acquired, or which he possessed by means of his slaves before he was captured by the enemy; as it has been decided, in some instances, that the estate takes the place of the person, and therefore that the right of usucaption is transmitted to the heirs of prisoners of war. 1If a slave of whom I am in possession should take to flight, and represent himself to be free, he will be considered as still in the possession of his master. This, however, must be understood to apply where, if he is caught, he is not prepared to maintain in court that he is free; for, if he is ready to do so, he will not be considered to be possessed by his master, against whom he is about to appear as an adversary. 2If a possessor of property in good faith should ascertain that it belongs to another, after having lost possession of it before the time necessary for usucaption has elapsed, and he should obtain possession of it a second time, he cannot acquire it by usucaption, because the beginning of the second possession is defective. 3If property to which we are entitled is delivered to us in accordance with the terms of a will, or under a stipulation, we must take into account the time when it was delivered, because property can be made the subject of a stipulation, even if it does not belong to the promisor.
16 Iavolenus libro quarto ex Plautio. Servi nomine, qui pignori datus est, ad exhibendum cum creditore, non cum debitore agendum est, quia qui pignori dedit, ad usucapionem tantum possidet, quod ad reliquas omnes causas pertinet, qui accepit possidet, adeo ut adici possit et possessio eius qui pignori dedit.
16 Javolenus, On Plautius, Book IV. When suit is brought for the production of a slave who has been given in pledge, proceedings must be instituted against the creditor, and not against the debtor; for the reason that he who gave the slave in pledge only possesses him by the right of usucaption. In all other respects, however, he who receives property possesses it, and this is true to such an extent that the possession of him who gives property in pledge can also be included.
17 Marcellus libro septimo decimo digestorum. Si per errorem de alienis fundis quasi de communibus iudicio communi dividundo accepto ex adiudicatione possidere coeperim, longo tempore capere possum.
17 Marcellus, Digest, Book XVII. If, in a case in partition, I begin to hold possession under a judgment rendered by mistake, which has reference to the land of others supposed to be owned in common, I can acquire the said land by holding it for a long time.
18 Modestinus libro quinto regularum. Quamvis adversus fiscum usucapio non procedat, tamen ex bonis vacantibus, nondum tamen nuntiatis, emptor praedii ex isdem bonis exstiterit, recte diutina possessione capiet: idque constitutum est.
18 Modestinus, Rules, Book V. Although usucaption is of no advantage as against the Treasury, it has been decided that where property without an owner has not yet been reported to the Treasury, and a purchaser appears who has bought land forming part of said property, he can legally acquire it by long-continued possession.
19 Iavolenus libro primo epistularum. Si hominem emisti, ut, si aliqua condicio extitisset, inemptus fieret, et is tibi traditus est et postea condicio emptionem resolvit: tempus, quo apud emptorem fuit, accedere venditori debere existimo, quoniam eo genere retro acta venditio esset redhibitioni similis, in qua non dubito tempus eius qui redhibuerit venditori accessurum, quoniam ea venditio proprie dici non potest.
19 Javolenus, Epistles, Book I. If you purchase a slave with the understanding that, if some condition should be complied with, the sale will be void, and the slave is delivered to you, and fulfillment of the condition afterwards annuls the transaction, I think that the time during which the slave was in possession of the purchaser should benefit the vendor, because a sale of this kind is similar to the redhibitory clause for the return of property, which is introduced into contracts for sales; and, in a case of this kind, I have no doubt that the time that the purchaser held the property will benefit the vendor, as properly speaking, no sale took place.
20 Idem libro quarto epistularum. Possessio testatoris ita heredi procedit, si medio tempore a nullo possessa est.
20 The Same, Epistles, Book IV. The possession of a testator will profit the heir if, in the meantime, no one else had possession.
21 Idem libro sexto epistularum. Ei, a quo fundum pro herede diutius possidendo capturus eram, locavi eum: an ullius momenti eam locationem existimes, quaero: quod si nullius momenti existimas, an durare nihilo minus usucapionem eius fundi putes. item quaero, si eidem vendidero eum fundum, quid de his causis, de quibus supra quaesii, existimes. respondit: si is, qui pro herede fundum possidebat, domino eum locavit, nullius momenti locatio est, quia dominus suam rem conduxisset: sequitur ergo, ut ne possessionem quidem locator retinuerit, ideoque longi temporis praescriptio non duravit. in venditione idem iuris est, quod in locatione, ut emptio suae rei consistere non possit.
21 The Same, Epistles, Book VI. I rented land to a man against whom I was about to assert my claim, founded on prescription, as an heir. I ask whether you think that this lease has any force or effect. If you think that it has no effect, do you believe that the right of usucaption of said land will, nevertheless, continue to exist? I also ask, if I should sell the land, what is your opinion of the points which I have just raised? The answer was that if he who is in possession of the land, as heir, leased it to the owner of the same, the lease is void, because the owner rented his own land. Hence it follows that the lessor does not retain possession, and prescription based upon long occupancy will not continue to exist. The same rule of law applies to a sale, because, as in the case of a lease, the purchase of one’s own property is void.
22 Idem libro septimo epistularum. Heres et hereditas tametsi duas appellationes recipiunt, unius personae tamen vice funguntur.
22 The Same, Epistles, Book VII. An heir and an estate, although they have two different names, are still regarded as one person.
23 Idem libro nono epistularum. Eum, qui aedes mercatus est, non puto aliud quam ipsas aedes possidere: nam si singulas res possidere intellegetur, ipsas non possidebit: separatis enim corporibus, ex quibus aedes constant, universitas aedium intellegi non poterit. accedit eo, quod, si quis singulas res possidere dixerit, necesse erit dicat possessione superficiei tempori de mobilibus statuto locum esse, solum se capturum esse ampliori: quod absurdum et minime iuri civili conveniens est, ut una res diversis temporibus capiatur, ut puta cum aedes ex duabus rebus constant, ex solo et superficie, et universitas earum possessionem temporis immobilium rerum omnium mutet. 1Si autem columna evicta fuerit, puto te ex empto cum venditore recte acturum et eo genere rem salvam habiturum. 2Si autem demolita domus est, ex integro res mobiles possidendae sunt, ut tempore, quod in usucapione rerum mobilium constitutum est, usucapiantur. et non potes recte uti eo tempore, quo in aedificio fuerunt: nam quemadmodum eas solas et separatas ab aedificio non possedisti, sic nec penes te singulae aut separatae fuerunt et cohaerentibus his in aedificio, depositis aedibus, quae hoc quoque ipsum continent. neque enim recipi potest, ut eadem res et ut res soli et tamquam mobilis sit possessa.
23 The Same, Epistles, Book IX. I do not think that he who has purchased a house possesses anything but the house itself. For if he is considered to possess the different things of which the house is built, he does not possess the house itself; as, after the materials of which it is composed are separated, they cannot be understood to represent the entire house. Add to this, if anyone should say that the separate materials of which the house was composed are possessed, it will be necessary to hold that there will be ground for the prescription of the movable property composing the house, during the time fixed for that purpose, and that a longer time will be necessary to acquire by usucaption the soil on which it stands. This is absurd, and it is by no means in conformity to the Civil Law that the same thing should be obtained by usucaption at different times; as, for example, since a house is composed of two different things, the soil, and what is erected upon it, that they united should change the time established for the usucaption of all immovable property by long-continued possession. 1If you should be judicially deprived of a column forming part of your house, I think that you will be entitled to an action on purchase against the vendor, and, in that way, can hold the entire property. 2If, however, the house has been demolished, in order that the movable property may be entirely acquired by usucaption, where it has been in possession for the term prescribed for that purpose, the time during which it composed the building cannot be legally reckoned; for, as you were not in possession of the materials alone and apart from the building, so, the house having been demolished, you cannot separately and distinctly possess the materials of which it was constructed; nor can it be held that the same property was possessed at the same time as both real estate and personalty.
24 Pomponius libro vicensimo quarto ad Quintum Mucium. Ubi lex inhibet usucapionem, bona fides possidenti nihil prodest. 1Interdum etiamsi non fuerit inchoata usucapio a defuncto, procedit heredi eius: veluti si vitium, quod obstabat non ex persona, sed ex re, purgatum fuerit, ut puta si fisci res esse desierit aut furtiva aut vi possessa.
24 Pomponius, On Quintus Mucius, Book XXIV. When the law forbids usucaption, the good faith of the possessor is of no advantage to him. 1Sometimes usucaption is an advantage to the heir, even though it was not begun to be acquired by the deceased: as, for instance, where the defect, which does not arise from the person but from the property itself, has been remedied. It arises from the property, for example, where it has ceased to belong to the Treasury, or possession of it has been obtained through theft or violence.
25 Licinnius Rufinus libro primo regularum. Sine possessione usucapio contingere non potest.
25 Licinius Rufinus, Rules, Book I. Usucaption cannot take place without possession.
26 Ulpianus libro vicensimo nono ad Sabinum. Numquam superficies sine solo capi [ed. maior longo] <ed. minor longe> tempore potest.
26 Ulpianus, On Sabinus, Book XXIX. A building can never be acquired by lapse of time separate from the ground on which it stands.
27 Idem libro trigensimo primo ad Sabinum. Celsus libro trigensimo quarto errare eos ait, qui existimarent, cuius rei quisque bona fide adeptus sit possessionem, pro suo usucapere eum posse nihil referre, emerit nec ne, donatum sit nec ne, si modo emptum vel donatum sibi existimaverit, quia neque pro legato neque pro donato neque pro dote usucapio valeat, si nulla donatio, nulla dos, nullum legatum sit, idem et in litis aestimatione placet, ut, nisi vere quis litis aestimationem subierit, usucapere non possit.
27 The Same, On Sabinus, Book XXXI. Celsus, in the Thirty-fourth Book, says that they are mistaken who believe that anyone who has obtained possession of property in good faith can acquire it, by usucaption, as his own; and that it makes no difference whether or not he purchased it, or it was given to him, provided he thinks it was purchased by, or given to him; for the reason that usucaption does not apply to a legacy, a gift, or a dowry, if no donation, dowry, or legacy exists. The same rule is held to be applicable to the case of an appraisement made in court, for if the party did not agree to the appraisement, he cannot acquire the property by usucaption.
28 Pomponius libro septimo decimo ad Sabinum. Si servo furiosi vel infantis res tradita sit, usu per eum eas personas capere posse constat.
28 Pomponius, On Sabinus, Book XVII. It is established that where property is delivered to the slave of an insane person, or an infant, the latter can obtain it by usucaption through the slave.
29 Idem libro vicensimo secundo ad Sabinum. Cum solus heres essem, existimarem autem te quoque pro parte heredem esse, res hereditarias pro parte tibi tradidi. propius est, ut usu eas capere non possis, quia nec pro herede usucapi potest quod ab herede possessum est neque aliam ullam habes causam possidendi. ita tamen hoc verum est, si non ex transactione id factum fuerit. idem dicimus, si tu quoque existimes te heredem esse: nam hic quoque possessio veri heredis obstabit tibi.
29 The Same, On Sabinus, Book XXII. If I am the sole heir to an estate, but believe that you are an heir to half of the same, and I deliver half of the estate to you, it is very probable that you cannot acquire the property by usucaption, because what is in possession of an heir cannot be obtained in this way by another, as the heir; and you have no other ground for possession. This is only true when done under the terms of a settlement. We hold that the same rule applies if you think that you are the heir; for, in this instance, the possession of the true heir will prevent you from obtaining the property by usucaption.
30 Idem libro trigensimo ad Sabinum. Rerum mixtura facta an usucapionem cuiusque praecedentem interrumpit, quaeritur. tria autem genera sunt corporum, unum, quod continetur uno spiritu et Graece ἡνωμένον vocatur, ut homo tignum lapis et similia: alterum, quod ex contingentibus, hoc est pluribus inter se cohaerentibus constat, quod συνημμένον vocatur, ut aedificium navis armarium: tertium, quod ex distantibus constat, ut corpora plura non soluta, sed uni nomini subiecta, veluti populus legio grex. primum genus usucapione quaestionem non habet, secundum et tertium habet. 1Labeo libris epistularum ait, si is, cui ad tegularum vel columnarum usucapionem decem dies superessent, in aedificium eas coniecisset, nihilo minus eum usucapturum, si aedificium possedisset. quid ergo in his, quae non quidem implicantur rebus soli, sed mobilia permanent, ut in anulo gemma? in quo verum est et aurum et gemmam possideri et usucapi, cum utrumque maneat integrum. 2De tertio genere corporum videndum est. non autem grex universus sic capitur usu quomodo singulae res, nec sic quomodo cohaerentes. quid ergo est? etsi ea natura eius est, ut adiectionibus corporum maneat, non item tamen universi gregis ulla est usucapio, sed singulorum animalium sicuti possessio, ita et usucapio. nec si quid emptum immixtum fuerit gregi augendi eius gratia, idcirco possessionis causa mutabitur, ut, si reliquus grex dominii mei sit, haec quoque ovis, sed singulae suam causam habebunt, ita ut, si quae furtivae erunt, sint quidem ex grege, non tamen usucapiantur.
30 The Same, On Sabinus, Book XXX. It is asked whether a mixture of different things interrupts the usucaption which has begun to run with reference to each of them. There are three kinds of things which can be divided; first, those which are included in a substance of the same nature, styled by the Greeks hynwmenon, that is to say united, as a slave, a piece of timber, a stone, and other property of this kind. Second, things which are joined by contact, that is to say, which have coherence, and are connected, as a house, a ship, a cupboard. Third, such as are formed of distinct objects, as different bodies which are not united but are included under a single appellation, for instance, a people, a legion, a flock. No question can arise with reference to the usucaption of the first of these, but there is doubt as far as the second and third are concerned. 1Labeo, in the Book of Epistles, says that where anyone who has only ten days left, in which to acquire the usucaption of tiles or columns, uses them in building a house, he will still be entitled to them by usucaption if he has possession of the house. What course must be pursued in case that articles are not joined to the soil, but remain movable property, as a precious stone set in a ring? In this instance, it is true that both the gold and the precious stone are in possession, and can be acquired by usucaption, if possession of both continues to exist. 2Let us take into consideration the third class of things. An entire flock is not acquired by usucaption in the same way as distinct articles, or as those which are united, are. What, then, must be done? Although the nature of a flock is that it continues to exist by the addition of new animals, usucaption, nevertheless, cannot take place with respect to the flock as a whole, but it follows the same rule as possession, which applies to the separate individuals composing it. For if other animals are purchased and mingled with the flock for the purpose of increasing it, the title to the latter by possession will not be changed; so that if the remainder of the flock belongs to me, the sheep which have been purchased are also mine; but each of the latter will be held by its own title, so that if any of those included in the flock have been stolen, they cannot be acquired by usucaption.
31 Paulus libro trigensimo secundo ad Sabinum. Numquam in usucapionibus iuris error possessori prodest: et ideo Proculus ait, si per errorem initio venditionis tutor pupillo auctor factus sit vel post longum tempus venditionis peractum, usucapi non posse, quia iuris error est. 1In usucapionibus mobilium continuum tempus numeratur. 2Servus licet in libertate moretur, nihil possidet nec per eum alius. atquin si nomine alicuius, dum in libertate moratur, nactus fuerit possessionem, adquiret ei, cuius nomine nactus fuerit. 3Si servus meus vel filius peculiari vel etiam meo nomine quid tenet, ut ego per eum ignorans possideam vel etiam usucapiam: si is furere coeperit, donec in eadem causa res fuerit, intellegendum est et possessionem apud me remanere et usucapionem procedere, sicuti per dormientes quoque eos idem nobis contingeret. idemque in colono et inquilino, per quos possidemus, dicendum est. 4Si vi aut clam aut precario possessionem nactus quis postea furere coeperit, et possessio et causa eadem durat de hoc, quod precario furiosus habet, quemadmodum interdicto quoque uti possidetis furiosi nomine recte experimur eius possessionis nomine, quam ante furorem per se vel post furorem per alium nactus est. 5Vacuum tempus, quod ante aditam hereditatem vel post aditam intercessit, ad usucapionem heredi procedit. 6Si defunctus emit, heres autem putat eum ex donationis causa possedisse, usu eum capturum Iulianus ait.
31 Paulus, On Sabinus, Book XXXII. In cases of usucaption, an error of law never benefits the possessor. Hence Proculus says that, if through mistake, a guardian does not, at the beginning of a sale or for a long time after it has been concluded, grant authority to his ward to make it, there will be no ground for usucaption, because an error of law exists. 1In an usucaption of movable property, the time is computed continuously. 2A slave, even though he may be at liberty, possesses nothing, and another does not possess anything by him. If, however, he should obtain possession in the name of another, while he is at liberty, he will acquire the property for him in whose name he obtained it. 3If my slave, or my son, holds anything in my name, or as part of his peculium, so that I am not aware that I possess it, or even that I am entitled to acquire it by usucaption, and he becomes insane, then it must be understood that the property remains in the same condition, and that I still retain possession of it, and have a right to usucaption, just as these rights continue to exist in our favor, even when the parties are asleep. The same rule must be said to apply to the case of a lessee, or a tenant through whom we acquire possession. 4Where anyone has obtained possession either by violence, clandestinely, or under a precarious title, and afterwards becomes insane, the possession and the title remain unchanged with reference to the property which the insane person holds precariously; just as, by means of an interdict, and by an action to obtain possession, we can legally institute proceedings in the name of an insane person, on account of the possession which he himself obtained before his reason became impaired, or acquired by means of another after his insanity had begun. 5The time which intervened before the estate was accepted, or after this was done, will benefit the heir in usucaption. 6Julianus says that if the deceased had made a purchase, and the heir thinks that he was in possession of the same as a donation, he can acquire the article by usucaption.
32 Pomponius libro trigensimo secundo ad Sabinum. Si fur rem furtivam a domino emerit et pro tradita habuerit, desinet eam pro furtiva possidere et incipiet pro suo possidere. 1Si quis id, quod possidet, non putat sibi per leges licere usucapere, dicendum est, etiamsi erret, non procedere tamen eius usucapionem, vel quia non bona fide videatur possidere vel quia in iure erranti non procedat usucapio. 2Incertam partem possidere nemo potest: ideo si plures sint in fundo, qui ignorent, quotam quisque partem possideat, neminem eorum mera suptilitate possidere Labeo scribit.
32 Pomponius, On Sabinus, Book XXXII. If a thief should purchase the stolen property from its owner, and hold it as delivered to him, he ceases to possess it as having been stolen, and begins to possess it as his own. 1When anyone thinks that he is not legally entitled to acquire by usucaption property which is in his possession, it must be said that even if he is mistaken, he cannot profit by usucaption; either because he is not considered to possess it in good faith, or because usucaption is of no advantage where an error of law exists. 2No one can possess a portion of anything, the amount of which is uncertain. Therefore, if several persons own land, and each is ignorant of the amount of his share, Labeo says that, strictly speaking, none of them has possession.
33 Iulianus libro quadragensimo quarto digestorum. Non solum bonae fidei emptores, sed et omnes, qui possident ex ea causa, quam usucapio sequi solet, partum ancillae furtivae usu suum faciunt, idque ratione iuris introductum arbitror: nam ex qua causa quis ancillam usucaperet, nisi lex duodecim tabularum vel Atinia obstaret, ex ea causa necesse est partum usucapi, si apud eum conceptus et editus eo tempore fuerit, quo furtivam esse matrem eius ignorabat. 1Quod vulgo respondetur ipsum sibi causam possessionis mutare non posse, totiens verum est, quotiens quis scieret se bona fide non possidere et lucri faciendi causa inciperet possidere: idque per haec probari posse. si quis emerit fundum sciens ab eo, cuius non erat, possidebit pro possessore: sed si eundem a domino emerit, incipiet pro emptore possidere, nec videbitur sibi ipse causam possessionis mutasse. idemque iuris erit etiam, si a non domino emerit, cum existimaret eum dominum esse. idem hic si a domino heres institutus fuerit vel bonorum eius possessionem acceperit, incipiet fundum pro herede possidere. hoc amplius si iustam causam habuerit existimandi se heredem vel bonorum possessorem domino extitisse, fundum pro herede possidebit nec causam possessionis sibi mutare videbitur. cum haec igitur recipiantur in eius persona, qui possessionem habet, quanto magis in colono recipienda sunt, qui nec vivo nec mortuo domino ullam possessionem habet? et certe si colonus mortuo domino emerit fundum ab eo, qui existimabat se heredem eius vel bonorum possessorem esse, incipiet pro emptore possidere. 2Si dominus fundi homines armatos venientes existimaverit atque ita profugerit, quamvis nemo eorum fundum ingressus fuerit, vi deiectus videtur: sed nihilo minus id praedium, etiam antequam in potestate domini redeat, a bonae fidei possessore usucapitur, quia lex Plautia et Iulia ea demum vetuit longa possessione capi, quae vi possessa fuissent, non etiam ex quibus vi quis deiectus fuisset. 3Si mihi Titius, a quo fundum petere volebam, possessione cesserit, usucapionis causam iustam habebo. sed et is, a quo ex stipulatu fundum petere volebam, cedendo mihi possessione, si solvendi causa id fecerit, eo ipso efficiet, ut fundum longo tempore capiam. 4Qui pignori rem dat, usucapit, quamdiu res apud creditorem est: si creditor eius possessionem alii tradiderit, interpellabitur usucapio: et quantum ad usucapionem attinet, similis est ei qui quid deposuit vel commodavit, quos palam est desinere usucapere, si commodata vel deposita res alii tradita fuerit ab eo, qui commodatum vel depositum accepit. plane si creditor nuda conventione hypothecam contraxerit, usucapere debitor perseverabit. 5Si rem tuam, cum bona fide possiderem, pignori tibi dem ignoranti tuam esse, desino usucapere, quia non intellegitur quis suae rei pignus contrahere. at si nuda conventione pignus contractum fuerit, nihilo minus usucapiam, quia hoc quoque modo nullum pignus contractum videtur. 6Si rem pignori datam creditoris servus subripuerit, cum eam creditor possideret, non interpellabitur usucapio debitoris, quia servus dominum suum possessione non subvertit. sed et si debitoris servus subripuerit, quamvis creditor possidere desinat, tamen debitori usucapio durat, non secus ac si eam creditor debitori tradidisset: nam quantum ad usucapiones attinet, servi subtrahendo res non faciunt deteriorem dominorum condicionem. facilius optinebitur, si precario possidente debitore servus eius subripuerit. nam conductio idem praestat, quod si apud creditorem res esset: possidet enim hoc casu creditor. sed et si utrumque intercesserit et precarii rogatio et conductio, intellegitur creditor possidere et precarii rogatio non in hoc interponitur ut debitor possessionem habeat, sed ut ei tenere rem liceat.
33 Julianus, Digest, Book XLIV. Not only bona fide purchasers, but also all those who have possession under any title by which usucaption is ordinarily acquired, can obtain as their own the child of a female slave; and I think that this rule has been legally established. For, in every instance, anyone can acquire a female slave by usucaption, unless it is prohibited by the Law of the Twelve Tables, or the Atinian Law. The child of such a slave can be acquired by usucaption, if it was conceived and brought forth at a time when the alleged possessor did not know that its mother had been stolen. 1The common opinion that a person himself cannot change the title of his possession is only correct where he knows that he is not a possessor in good faith, and obtains it for the purpose of profit. This can be proved as follows: If anyone purchases a tract of land from another, knowing that it does not belong to the latter, he will hold it as the possessor; but if he purchases the same land from the owner, he will possess it as the purchaser; nor will he himself be considered to have changed the title to his possession. The same rule will apply even if he did not purchase the land from the owner, if he believed it to be his. In like manner, if he was appointed heir by the owner, or obtained prætorian possession of his estate, he will possess the land as the heir. Further, if he had good reason to think that he was the heir, or was entitled to prætorian possession of the estate, he will possess the land as the heir, and will not be held to have himself changed the title to possession. As this rule must be adopted with reference to him who has possession, how much more is it applicable to the case of a tenant, who has no possession either during the lifetime, or after the death of/the owner of the land? And, indeed, if the tenant, at the time of the death of the owner, purchased the land from him whom he believed to be the heir of the former, or the possessor of his estate under the Prætorian Edict, he will begin to hold the property as a purchaser. 2If the owner of land thinks that armed men are coming, and, for this reason, takes to flight, he will be considered to have been forcibly dispossessed, even though none of them should enter upon the land. Still, the same land can be acquired by usucaption by a bona fide possessor, even before it again comes under the control of the owner, because the Lex Plautia et Julia forbids property which has been taken possession of by force to be acquired by long possession, but not by those who have been driven from it by violence. 3If Titius gives me possession of land which I had the intention of bringing suit to recover from him, I shall have good ground for usucaption. But if he from whom I had the intention of demanding a tract of land on account of a stipulation grants me possession of the same, and does so for the purpose of discharging his indebtedness, he places me in such a position that I can obtain the land by prescription. 4Anyone who gives property in pledge can acquire it by usucaption as long as it remains in the hands of his creditor, but if the creditor should transfer his possession to another, the usucaption will be interrupted. And, so far as the usucaption is concerned, the case is similar to that of a person who deposited, or lent an article; for it is clear that he ceases to acquire it by usucaption, if the article which was lent or deposited should be delivered to a third party by him who received it as a loan, or a deposit. It is evident if the creditor hypothecated it by a mere agreement, the debtor will continue to acquire it by usucaption. 5If I possess in good faith property which belongs to you, and pledge it to you, you not being aware that it was yours, I cease to acquire it by usucaption, because no one is understood to hold his own property in pledge. If, however, it should be pledged by a mere agreement, I will still continue to acquire it by usucaption, because in this way the property is not considered to have been pledged. 6If a slave should steal property which has been pledged to his master, as the creditor still continues to be in possession of it, the usucaption of the debtor will not be interrupted, because a slave does not deprive his master of possession. But if a slave of the debtor should steal the property, although the creditor ceases to have possession of the same, the usucaption of the debtor will remain the same as if the creditor had delivered the property to the debtor. For so far as usucaption is concerned, slaves do not injure the conditions of their owners by the theft of property. The question will be more easily decided if the slave of a debtor, having precarious possession, steals the property; for if it should be hired, the result will be the same as if it had remained in the hands of the creditor, since, in this instance, the creditor has possession of it. If, however, both titles existed, that is to say, one that is precarious, and another based upon the hiring, the creditor is understood to hold possession, for the claim under a precarious title is not, in this instance, introduced to enable the debtor to have possession, but only to permit him to retain the property.
34 Alfenus Varus libro primo digestorum a Paulo epitomatorum. Si servus insciente domino rem peculiarem vendidisset, emptorem usucapere posse.
34 Alfenus Verus, Epitomes of the Digest by Paulus, Book I. If a slave, without the knowledge of his master, sells property belonging to his peculium, the purchaser can acquire it by usucaption.
35 Iulianus libro tertio ad Urseium Ferocem. Si homo, cuius usus fructus legatus erat, ab herede numquam possessus subreptus fuisset, quaesitum est, quia heres furti actionem non haberet, an usucapi possit. Sabinus respondit nullam eius rei usucapionem esse, cuius nomine furti agi possit, agere autem furti eum, qui frui deberet, posse. quod si accipiendum est, ut fructuarius poterit uti frui: aliter enim homo in causa non perduceretur. sed si utenti iam et fruenti abductus homo fuerit, non solum ipse, sed etiam heres furti agere poterit.
35 Julianus, On Urseius Ferox, Book III. If a slave, the usufruct of whom has been bequeathed, and who has never been in possession of the heir, should be stolen, the question arises, can the slave be acquired-by usucaption, because the heir is entitled to an action of theft? Sabinus says that no usucaption can exist in the case of property on account of which an action for theft will lie, but that he who is entitled to the usufruct can bring this action. This, however, must be understood to apply to a case where the usufructuary can use and enjoy his right; for otherwise, the slave would not be in the condition in which he should be. But if the slave had been stolen from the usufructuary, while in the enjoyment of his right, not only he himself, but also his heir, can bring the action for theft.
36 Gaius libro secundo rerum cottidianarum sive aureorum. Potest pluribus modis accidere, ut quis rem alienam aliquo errore deceptus tamquam suam vendat forte aut donet et ob id a bonae fidei possessore res usucapi possit: veluti si heres rem defuncto commodatam aut locatam vel apud eum depositam existimans hereditariam esse alienaverit. 1Item si quis aliqua existimatione deceptus crediderit ad se hereditatem pertinere, quae ad eum non pertineat, et rem hereditariam alienaverit, aut si is, ad quem usus fructus ancillae pertinet, partum eius existimans suum esse, quia et fetus pecudum ad fructuarium pertinet, alienaverit,
36 Gaius, Diurnal or Golden Matters, Book II. It can happen in several ways, that a person laboring under some mistake may sell or give away property as his own which belongs to another; and, under such circumstances, it can be acquired by usucaption by a bona fide possessor; for instance, if the heir should sell property which was lent to the deceased, or leased by him, or deposited with him, believing that it belonged to the estate. 1Likewise, if anyone, misled by some opinion, and thinking that he is entitled to an estate, which is not the case, should alienate property forming part of the same; or where a person to whom the usufruct of a female slave belongs, believing her children to be his, for the reason that the increase of flocks belongs to the usufructuary, should sell the children;
37 Idem libro secundo institutionum. furtum non committit: furtum enim sine affectu furandi non committitur. 1Fundi quoque alieni potest aliquis sine vi nancisci possessionem, quae vel ex neglegentia domini vacet vel quia dominus sine successore decesserit vel longo tempore afuerit.
37 The Same, Institutes, Book II. He does not commit a theft, for a theft cannot be committed without the intention of stealing. 1Anyone can also obtain possession of the land of another without violence, where it has become vacant through the neglect of the owner, or where the latter has died without leaving an heir, or has been absent for a long time.
38 Idem libro secundo rerum cottidianarum sive aureorum. Quam rem ipse quidem non potest usucapere, quia intellegit alienum se possidere et ob id mala fide possidet. sed si alii bona fide accipienti tradiderit, poterit is usucapere, quia neque vi possessum neque furtivum possidet: abolita est enim quorundam veterum sententia existimantium etiam fundi locive furtum fieri.
38 The Same, Diurnal or Golden Matters, Book III. A person cannot, himself acquire the property by usucaption in this case, because he knows that it belongs to another, and therefore he is a possessor in bad faith; but if he transfers it to someone else who receives it in good faith, the latter can acquire it by/usucaption, for the reason that he has gained possession of property which has not been acquired by force, and has not been stolen: as the opinion of certain ancient authorities, who held that a theft of land or a house could be perpetrated has been abandoned.
39 Marcianus libro tertio institutionum. Si solum usucapi non poterit, nec superficies usucapietur.
39 Marcianus, Institutes, Book III. If the soil cannot be acquired by usucaption, what stands upon it can not be acquired in the same way.
40 Neratius libro quinto regularum. Coeptam usucapionem a defuncto posse et ante aditam hereditatem impleri constitutum est.
40 Neratius, Rules, Book V. It has been established that where usucaption has been begun by a deceased person, it can be completed before the estate has been entered upon.
41 Idem libro septimo membranarum. Si rem subreptam mihi procurator meus adprehendit, quamvis per procuratorem possessionem apisci nos iam fere conveniat, nihilo magis eam in potestatem meam redisse usuque capi posse existimandum est, quia contra statui captiosum erit.
41 The Same, Parchments, Book VII. If my agent recovers property which has been stolen from me, although, generally speaking, it is now almost conclusively settled that we can obtain possession by means of an agent, the property, nevertheless, will not again come under my control so that it can be acquired by usucaption, because to decide otherwise would be fallacious.
42 Papinianus libro tertio quaestionum. Cum vir praedium dotale vendidit scienti vel ignoranti rem dotis esse, venditio non valet. quam defuncta postea muliere in matrimonio confirmari convenit, si tota dos lucro mariti cessit. idem iuris est, cum is, qui rem furtivam vendidit, postea domino heres exstitit.
42 Papinianus, Questions, Book III. If a husband should sell a dotal tract of land to someone who knew, or.was not aware that the property was a part of the dowry, the sale will not be valid. If the woman should afterwards die during the marriage, the transaction must be confirmed, if the entire dowry was given for the benefit of the husband. The same rule applies where he who sold stolen property subsequently becomes the heir of the owner of the same.
43 Idem libro vicensimo secundo quaestionum. Heres eius, qui bona fide rem emit, usu non capiet sciens alienum, si modo ipsi possessio tradita sit: continuatio vero non impedietur heredis scientia. 1Patrem usu non capturum, quod filius emit, propter suam vel filii scientiam certum est.
43 The Same, Questions, Book XLII. If the heir of him who purchased property in good faith knows that it belongs to another, he cannot acquire it by usucaption, provided possession of it has been delivered to him personally; but the knowledge of the heir will not prejudice him so far as the continuance of possession is concerned. 1It is certain that a father cannot acquire by usucaption anything which his son has purchased, if he or his son knew that it was the property of someone else.
44 Idem libro vicensimo tertio quaestionum. Iusto errore ductus Titium filium meum et in mea potestate esse existimavi, cum adrogatio non iure intervenisset: eum ex re mea quaerere mihi non existimo. non enim constitutum est in hoc, quod in homine libero qui bona fide servit placuit: ibi propter adsiduam et cottidianam comparationem servorum ita constitui publice interfuit, nam frequenter ignorantia liberos emimus, non autem tam facilis frequens adoptio vel adrogatio filiorum est. 1Constat, si rem alienam scienti mihi vendas, tradas autem eo tempore, quo dominus ratum habet, traditionis tempus inspiciendum remque meam fieri. 2Etsi possessionis, non contractus initium, quod ad usucapionem pertinet, inspici placet, nonnumquam tamen evenit, ut non initium praesentis possessionis, sed causam antiquiorem traditionis, quae bonam fidem habuit, inspiciamus, veluti circa partum eius mulieris, quam bona fide coepit possidere: non enim ideo minus capietur usu puer, quod alienam matrem, priusquam eniteretur, esse cognovit. idem in servo postliminio reverso dictum est. 3Nondum aditae hereditatis tempus usucapioni datum est, sive servus hereditarius aliquid comparat, sive defunctus usucapere coeperat: sed haec iure singulari recepta sunt. 4Filius familias emptor alienae rei, cum patrem familias se factum ignoret, coepit rem sibi traditam possidere: cur non capiat usu, cum bona fides initio possessionis adsit, quamvis eum se per errorem esse arbitretur, qui rem ex causa peculiari quaesitam nec possidere possit? idem dicendum erit et si ex patris hereditate ad se pervenisse rem emptam non levi praesumptione credat. 5Non mutat usucapio superveniens pro emptore vel pro herede, quo minus pignoris persecutio salva sit: ut enim usus fructus usucapi non potest, ita persecutio pignoris, quae nulla societate dominii coniungitur, sed sola conventione constituitur, usucapione rei non peremitur. 6Eum, qui postea quam usucapere coepit in furorem incidit, utilitate suadente relictum est, ne languor animi damnum etiam in bonis adferat, ex omni causa implere usucapionem. 7Si, cum apud hostes dominus aut pater agat, servus aut filius emat, an et tenere incipiat? si quidem ex causa peculii possedit, usucapionem inchoari nec impedimento domini captivitatem esse, cuius scientia non esset in civitate necessaria. si vero non ex causa peculii comparetur, usu non capi nec iure postliminii quaesitum intellegi, cum prius esset, ut, quod usucaptum diceretur, possessum foret. sin autem pater ibi decesserit, quia tempora captivitatis ex die quo capitur morti iungerentur, potest filium dici et possedisse sibi et usucepisse intellegi.
44 The Same, Questions, Book XXIII. Having been deceived by a plausible error, I believe Titius to be my son, and to be under my control, but the arrogation of him by me was found to be illegal. I do not think that, under the circumstances, he has a right to take charge of my property, for the same rule has not been established in this case as in that of a freeman who serves in good faith as a slave; as it was for the interest of the public to establish this rule, on account of the constant and daily transactions with reference to slaves. For we often purchase freemen, not knowing that they are such, and the adoption and arrogation of children is not as easy, or as frequent. 1It is settled that if you sell me property belonging to another, and I know that this is the case, and you deliver it at the same time that the owner ratifies the sale, the time of delivery must be taken into account and the property becomes mine. 2Although it has been decided that, so far as usucaption is concerned, the beginning of the possession, and not the time when the contract was made, must be considered; still, it sometimes happens that we take into consideration not the beginning of the present possession, but the reason for a former delivery, which was made in good faith; for instance, where the right to the child of a female slave, whose mother was possessed in good faith, is in question, as the child cannot any the less be acquired by usucaption, although the possessor knew that the mother was the property of another before the child was born. The same rule applies to the case of a slave who returns under the law of postliminium. 3The time which has elapsed before the acceptance of an estate is granted for the benefit of usucaption, whether a slave belonging to the estate purchased any property, or whether the deceased had begun to acquire by usucaption. This principle is established as a special privilege. 4A son under paternal control bought property belonging to another, and then, becoming the head of a household without knowing it, began to possess the property, which had been delivered to him. Why can he not obtain it by usucaption, as he acted in good faith at the time that he obtained possession, although he was mistaken when he thought that he could not obtain property which he acquired as part of his peculium? The same rule must be said to apply if he had good reason to think that the property which was purchased had come into his hands as a part of his father’s estate. 5Usucaption which takes place in favor of a purchaser or an heir does not prevent the pursuit of a pledge by a creditor; for, as an usufruct cannot be the subject of usucaption, so the right to pursue a pledge, which is in no way connected with ownership but is founded on an agreement alone, is not extinguished by the usucaption of the property. 6The opinion that anyone who becomes insane, and who had previously begun to acquire by usucaption, can continue to do so until it is completed under any title whatsoever, is based on considerations of convenience, in order to prevent his mental weakness from injuriously aifecting his property. 7If a slave or a son purchases property while the master or the father is in the hands of the enemy, will he begin to hold the same? If he has possession on account of his peculium, usucaption will begin to run, nor will the captivity of his father or master offer any impediment to this, as his knowledge of it would not be necessary if he was at home. If, however, the purchase was made without reference;to the peculium, the property cannot be acquired by usucaption, nor can it be understood to be obtained by the right of postliminium; for, in order for this to take place, what is said to be obtained by usucaption must already have been possessed. But if the father should die in captivity, for the reason that the time of his death is held to date from the day of his capture, it may be said that the son has had possession for himself, and he can be understood to have acquired the property by usucaption.
45 Idem libro decimo responsorum. Praescriptio longae possessionis ad optinenda loca iuris gentium publica concedi non solet. quod ita procedit, si quis, aedificio funditus diruto quod in litore posuerat (forte quod aut deposuerat aut dereliquerat aedificium), alterius postea eodem loco extructo, occupantis datam exceptionem opponat, vel si quis, quod in fluminis publici deverticulo solus pluribus annis piscatus sit, alterum eodem iure prohibeat. 1Post mortem domini servus hereditarius peculii nomine rem coepit tenere, usucapionis primordium erit tempus hereditatis aditae: quemadmodum etenim usucapietur, quod ante defunctus non possederat?
45 The Same, Opinions, Book X. Prescription based upon long possession is not usually granted for the acquisition of places which are public by the Law of Nations. An instance of this is, where anyone abandons a building which he had constructed upon the seashore, or it was demolished, and another person, having built a house in the same place, the former opposes him by an exception based upon previous occupancy; or where anyone, for the reason that he alone has been accustomed to fish for years in a certain part of a river, under the same prescriptive right forbids another to do so. 1A slave who belonged to an estate, after the death of his master, obtained possession of property forming part of his peculium. The beginning of usucaption will date from the time when the estate was entered upon, for how can property be acquired in this manner which was not previously in the possession of the deceased?
46 Hermogenianus libro quinto iuris epitomarum. Pro soluto usucapit, qui rem debiti causa recipit: et non tantum quod debetur, sed et quodlibet pro debito solutum hoc titulo usucapi potest.
46 Hermogenianus, Epitomes of Law, Book V. Property which has been received in payment is subject to usucaption where it has been obtained in the discharge of a debt. Not only what is due, but also whatever is given in discharge of the debt is subject to usucaption.
47 Paulus libro tertio ad Neratium. Si emptam rem mihi procurator ignorante me meo nomine adprehenderit, quamvis possideam, eam non usucapiam, quia ut ignorantes usuceperimus, in peculiaribus tantum rebus receptum est.
47 Paulus, On Neratius, Book III. If my agent, without my knowledge, takes charge of property purchased in my name, although I may have possession of the same, I cannot acquire it by usucaption; because while we can acquire property by usucaption without knowing that we have possession of it, this has been decided to only be true where something forming part of the peculium is concerned.
48 Idem libro secundo manualium. Si existimans debere tibi tradam, ita demum usucapio sequitur, si et tu putes debitum esse. aliud, si putem me ex causa venditi teneri et ideo tradam: hic enim nisi emptio praecedat, pro emptore usucapio locum non habet. diversitatis causa in illo est, quod in ceteris causis solutionis tempus inspicitur neque interest, cum stipulor, sciam alienum esse nec ne: sufficit enim me putare tuum esse, cum solvis: in emptione autem et contractus tempus inspicitur et quo solvitur: nec potest pro emptore usucapere, qui non emit, nec pro soluto, sicut in ceteris contractibus.
48 The Same, Manuals, Book II. If, believing that I am indebted to you, I give you property in payment, usucaption can only take place if you yourself think that it is due. The case is different, if I think that I am bound on account of a sale, and therefore deliver the property to you, for no action will lie against me, and you, as the purchaser, will not be entitled to usucaption. The reason for the difference arises from the fact that, in other instances, the time of payment should be considered. Nor does it matter whether, at the time when I make the stipulation, I am aware that the property belongs to another or not, as it will be sufficient if I think it is mine, when you give it to me in payment for a purchase; however, not only the time when a contract was entered into, but also that of payment is taken into account, for no one can acquire property by usucaption as a purchaser who did not buy it, and he cannot, as in other contracts, say that it has been received in payment.
49 Labeo libro quinto pithanon a Paulo epitomatorum. Si quid est subreptum, id usucapi non potest, antequam in domini potestatem pervenerit. Paulus: immo forsitan et contra: nam si id, quod mihi pignori dederis, subripueris, erit ea res furtiva facta: sed simul atque in meam potestatem venerit, usucapi poterit.
49 Labeo, Epitomes of Probabilities by Paulus, Book V. Property which has been stolen cannot be acquired by usucaption before it has again come under the control of the owner. Paulus: Perhaps the contrary opinion is true; for if you should steal property which you have given to me in pledge, it becomes stolen goods, but it can be acquired by usucaption as soon as it again comes under my control.