Pro herede vel pro possessore
(Concerning Possession as Heir or as Possessor.)
1 Pomponius libro trigensimo secundo ad Sabinum. Pro herede ex vivi bonis nihil usucapi potest, etiamsi possessor mortui rem fuisse existimaverit.
1 Pomponius, On Sabinus, Book XXXII. Nothing can be acquired by an heir through usucaption out of the property of a person who is living, even though the possessor thought that it belonged to one who is dead.
2 Iulianus libro quadragensimo quarto digestorum. Qui legatorum servandorum causa in possessionem mittitur, non interpellat possessionem eius, qui pro herede usucapit: custodiae enim causa rem tenet. quid ergo est? etiam impleta usucapione ius pignoris retinebit, ut non prius discedat, quam si solutum ei legatum fuerit aut eo nomine satisdatum. 1Quod volgo respondetur causam possessionis neminem sibi mutare posse, sic accipiendum est, ut possessio non solum civilis, sed etiam naturalis intellegatur. et propterea responsum est neque colonum neque eum, apud quem res deposita aut cui commodata est, lucri faciendi causa pro herede usucapere posse. 2Filium quoque donatam rem a patre pro herede negavit usucapere Servius, scilicet qui existimabat naturalem possessionem penes eum fuisse vivo patre. cui consequens est, ut filius a patre heres institutus res hereditarias a patre sibi donatas pro parte coheredum usucapere non possit.
2 Julianus, Digest, Book XLIV. When anyone is placed in possession of an estate for the preservation of a legacy, he does not interrupt the possession of him who acquires by usucaption as heir, for he holds the property for safe-keeping. What then results? He will retain the property by the right of pledge, even after the time required for usucaption has elapsed, and he will not relinquish it until his legacy has been paid to him, or his claim to it has been satisfied. 1The common opinion that no one can change the title of his own possession must be understood to apply, not only to civil, but also to natural possession. Therefore, it has been held that neither a tenant, nor anyone with whom property has been deposited, or lent, can, as heir, acquire it by usucaption, for the purpose of profiting by it. 2Servius denies that a son can, in the capacity of heir, acquire by usucaption property which has been given to him by his father; for he held that natural possession of it was in the hands of the son during the lifetime of his father. The result of this is that, where a son has been appointed heir by his father, he cannot acquire by usucaption any portion of the estate given to him by the former so far as this may affect the shares of his co-heirs.
3 Pomponius libro vicensimo tertio ad Quintum Mucium. Plerique putaverunt, si heres sim et putem rem aliquam ex hereditate esse quae non sit, posse me usucapere.
3 Pomponius, On Quintus Mucius, Book XXIII. Many authorities hold that if I am the heir, and think that certain property belongs to the estate, but which really forms no part of it, I can acquire it by usucaption.
4 Paulus libro quinto ad legem Iuliam et Papiam. Constat eum, qui testamenti factionem habet, pro herede usucapere posse.
4 Paulus, On the Lex Julia et Papia, Book V. It is established that he who has a right to make a will can, in the capacity of heir, acquire property by usucaption.