Ad Dig. 24,1,46Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 365, Note 9.The Same, On the Edict, Book LXXII. Possession of property does not necessarily imply a donation of the same between husband and wife.

The Same, On the Edict, Book LXXII. Pomponius relates that stones were sunk in the Tiber by a shipwreck and were afterwards recovered; and he asks whether the ownership remained unchanged during the time that they were in the river. I think that the ownership, but not the possession, was retained. This instance is not similar to that of a fugitive slave, for the slave is considered to be possessed by us, in order to prevent him from depriving us of possession; but the case of the stones is different. 1Where anyone makes use of the agency of another, he should do so with the liabilities and defects attaching to it. Hence, with reference to the time during which the vendor has had possession of the property, we also take into consideration the questions of violence, secrecy, and precarious title. 2Moreover, where anyone returns a slave to the vendor, the question arises whether the latter can profit by the time that the slave was in possession of the purchaser. Some authorities think that he cannot, for the reason that the return of the slave annuls the sale; others hold that the purchaser can profit by the time of possession by the vendor, and the vendor by that of the purchaser. This opinion, I think, should be adopted. 3Ad Dig. 41,2,13,3Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 181, Note 9.If a freeman, or a slave belonging to another who is serving in good faith, purchases property, and a third party acquires possession of the same, neither the alleged slave, when he becomes free, nor the real owner can profit by the time that the property has been in the hands of a bona fide possessor. 4Where an heir did not possess in the first place, the question arose whether he cah profit by the possession of the testator. And, indeed, possession is interrupted between the parties to the sale, but many authorities do not hold the same opinion with reference to heirs, as the right of succession is much more extensive than that of purchase. It is, however, more in accordance with a liberal interpretation of law that the same rule should be adopted concerning heirs which applies to purchasers. 5Ad Dig. 41,2,13,5Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 181, Note 9.Not only does the possession of the testator, which he had at the time of his death, benefit the heir, but also that which he had at any time whatsoever has this effect. 6Ad Dig. 41,2,13,6Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 181, Note 10.With reference to dowry also, if property has been either given or received as such, the time of possession will profit either the husband or the wife, as the case may be. 7Ad Dig. 41,2,13,7Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 181, Note 9.Where anyone has transferred property by a precarious title, the question arises whether he can profit by the time during which it was in possession of the person to whom it was transferred. I think that he who transfers it by a precarious title cannot profit by the time of possession, as long as the title continues to be precarious; but if he again acquires possession, and the precarious title is extinguished, he can profit by the possession during the time when the property was held by a precarious title. 8In a certain case, it was asked if a manumitted slave has possession of property forming part of his peculium (his peculium not having been given to him) and his master desires to profit by the time it was held by the freedman, possession of the property having been surrendered, whether he can do so. It was decided that he should not be granted the benefit of the time of possession, because his conduct was clandestine and dishonest. 9Where property has been restored to me by order of court, it has been decided that I am entitled to the benefit of the time during which it was held by my opponent. 10Ad Dig. 41,2,13,10Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 181, Note 10.It must, however, be remembered that a legatee is entitled to the benefit of the time when the property was in the hands of the testator. But let us see whether he will be benefited by the time that the property was in the possession of the heir. I think that, whether the legacy was bequeathed absolutely or conditionally, it should be held that the legatee can profit by the time that it was in the possession of the heir, before the condition was fulfilled, or the property delivered. The time that it was in the possession of the testator will always profit the legatee, if the legacy or the trust is genuine. 11Ad Dig. 41,2,13,11Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 181, Note 10.Moreover, he to whom property is donated has a right to profit by the time it was possessed by the person who made the donation. 12Ad Dig. 41,2,13,12Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 181, Note 10.Times of possession are applicable to those who themselves have possession of what is their own; but no one will be entitled to this privilege unless he himself has been in possession. 13Again, time of occupancy will be of no advantage where the possession is defective; possession, however, which is not defective, causes no injury.

Ulpianus, On the Edict, Book LXXII. The Prætor says: “I will grant an action in factum, for the amount of the value of the property of which a person was placed in possession, against anyone who acts fraudulently to prevent him from obtaining control of said property by my permission, or by that of any other magistrate having jurisdiction.” 1It was with the greatest wisdom that the Prætor introduced this interdict; for it would be useless for him to place anyone in possession of property for the purpose of preserving it, unless he protected him, and punished those who prevented him from occupying it. 2Moreover, this Edict is of general application, for it has reference to all persons placed in possession of property by the Prætor, as it seemed proper to him that all those whom he placed in possession should be protected. Where persons are placed in possession, either for the purpose of preserving the property, or to insure the payment of their legacies, or to protect the rights of an unborn child, they will be entitled to an action in factum under this Edict, if a master or anyone else should prevent them from doing so. 3This action will not only lie against anyone who prevents another from taking possession, but also against a person who drives him away, after he has already obtained possession. It is not required that he who prevents him from taking possession should use force. 4Therefore, where if anyone hinders another from taking possession, because he thinks that the property belongs to him, or is encumbered to him, or, in fact, does not belong to the debtor, the result will be that he will not be liable under this Edict. 5The following words, “for the amount of the value of the property of which he was placed in possession,” include the entire interest of the creditor, so that the defendant shall have judgment rendered against him to the extent of the interest he had in not being prevented from obtaining possession. Hence, if he was placed in possession by virtue of a false claim or demand which was groundless, or if he should have been barred by an exception, this Edict will be of no advantage to him, because there was no reason why he should have been placed in possession. 6It is established that neither a minor nor an insane person is liable under this Edict, because they are destitute of will power. We should understand a minor to be one who is incapable of committing fraud, but if he is already capable of doing so, the opposite opinion must be held; therefore, if a guardian should commit a fraudulent act, we will grant an action against his ward, provided the guardian is solvent. Julianus says that the guardian himself can be sued. 7If anyone is prevented from obtaining possession with the consent of a master or a father, an action will be granted against them, just as if they committed the act by the agency of others. 8This action can only be brought within a year, except where anyone is placed in possession to insure the payment of a legacy; and it must be noted that it cannot be brought after the year has expired, as it is a penal one; nor will it be granted against heirs and other persons of this kind, unless with reference to property which has come into their hands. It will, however, be granted to the heir and other successors. For when anyone is prevented from obtaining possession on account of the preservation of legacies or trusts, the action is perpetual and is granted against the heir, because it is in the power of successors to avoid the operation of the interdict by offering to give security.

Ulpianus, On the Edict, Book LXXII. The Prætor says: “I forbid force to be employed to prevent anyone from removing a slave from the place where he is at present, if he has remained there the greater part of the year.” 1This interdict has reference to the possession of movables; it, however, obtains its validity in the same way as the interdict Uti possidetis, which only applies to real property; so that he also will succeed under this interdict who has obtained possession of the slave without the employment of force, or clandestinely, or by a precarious title, if an adversary attempts to interfere with his possession.

The Same, On the Edict, Book LXXII. An exception on the ground of res judicata is tacitly understood to include all those persons who are interested in the case.

Ulpianus, On the Edict, Book LXXVI. The term “heir” not only has reference to the next heir, but to all others; for the heir of an heir, and so on in succession, is included in this appellation.