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45. Set aliquando etiamsi maxime quis bona fide alienam rem possideat, nuwquam tamen illz usucapio procedit, velut si qui rem furtivam aut vi possessam possideat; nam furtivam lex xii tabularum usucapi prohibet, vi possessam lex Iulia et Plautia. (46.) Item provincialia praedia usucapionem non recipiunt. (47.) Item olim mulieris quae in agnatorum tutela erat res mancipi usucapi non poterant, praeterquam si ab ipsa tutore auctore traditae essent: iaque i/a lege xa tabularum cautum erat. (48.), Item liberos homines et res sacras et religiosas usucapi non posse manifestum est.
49. Quod ergo vulgo dicitur furtivarum rerum et vi possessarum usucapionem per legem xI I tabularum prohibitam esse, non eo pertinet, ut ne ipse fur quive per vim possidet, usu
45. But sometimes, although a man possess a thing most thoroughly in good faith, yet usucapion will never run for him, for instance if a man possess a thing stolen or taken possession of by violence: for a law of the Twelve Tables1 forbids a stolen thing to be gotten by usucapion, and the Lex Julia et Plautia does the same for a thing taken possession of by violence2. 46. Provincial lands also do not admit of usucapion3. 47. Likewise, in olden times the res mancipi of a woman who was in the tutelage of her agnates could not be gotten by usucapion, except they had been delivered by the woman herself with the authorization of her tutor4: and this was so provided by a law of the Twelve Tables5. 48. It is clear also that free men and sacred and religious things cannot be gotten by usucapion.
49. The common saying, that usucapion of things stolen or taken possession of by violence is prohibited by the law of the Twelve Tables, does not mean that the thief himself or possessor by violence cannot get by usucapion (for usu
1 Tab. VIII. 1. 17.- 3 In the case of provincial lands
3 The two requisites of a posses- the dominium was reserved to the
sion which will enable usucapion, Roman people, therefore obviously
are bona fides and justa causa. The no private holder could avail him
latter is deficient in the present ex- self of usucapion to acquire domi
ample, for although the goods are nium.
in the possession of an innocent ali- 4 Cic. pro Flacco, с 84. Cic. ad
enee, yet they came to him from one Att. 1. 5.
wrongfully possessed. See §49 below. * Tab. V. 1. 2.
Furti vitium. 81
capere possit (nam huic alia ratione usucapio non competit, quia scilicet mala fide possidet); sed nec ullus alius, quamquam ab eo bona fide emerit, usucapiendi ius habeat. (50.) Unde in rebus mobilibus non facile -procedit, ut bonae fidei possessori usucapio competat, quia qui alienara rem vendidit et tradidit furtum committit; idemque accidit, etiam si ex alia causa tradatur. Set tamen hoc aliquando aliter se habet. nam si heres rem defuncto commodatam aut locatam vel aput eu?« depositam, existimans eam esse hereditariam, vendiderit aut donaverit, furtum non committit. item si is ad quem ancillae ususfructus pertinet, partum etiam suum esse credens vendiderit aut donaverit, furtum non committit ; /urtum enim sine affectu furandi non committitur. aliis quoque modis accidere potest, ut quis sine vitio furti rem alienam ad aliquem transferat et efficiat, ut a possessore usucapiatur. (51.) Fundi quoque
capion does not avail for him on another account, namely that he possesses in bad faith :) but that no one else has the right of usucapion, even though he buy from him in good faith. 50. Whence, in respect to moveable things, it does not easily happen that usucapion will avail for a possessor in good faith, because he who has sold and delivered a thing belonging to another, commits a theft: and the same rule holds also if it be delivered on any other ground1. Sometimes, however, it is otherwise; for if an heir thinking that a thing lent or let to the deceased or deposited with him is a part of the inheritance, has sold o1 given it away, he commits no theft". Likewise, if he to whom the usufruct of a female slave belongs, thinking that her offspring is also his, sells it or gives it away, he commits no theft3, for theft is not committed without the intent of thieving. It may happen in other ways also that a man may without the taint of theft deliver a thing belonging to another to a third person, and cause it to be gained through usucapion by the possessor. 51. A man may also obtain possession without
1 Any other ground than sale, sc. cused is shown in D. 41. 3. 36. The
3 D. 41. 3. 36. pr. usuf1uctuary supposes he has a right
1 111. 197. We see from this that to the fructus of the ancilla, because
the Roman lawyers excused mistakes the usufructuary of a flock of sheep
of law as well as fact. The reason has a 1ight to thc young of that
why this pa1ticular mistake was ex- flock. 82 Bona fide possessio.
alieni potest aliquis jine vi possessionem nancisci, quae vel ex negligentia domini vacet, vel quia dominus sine successore decesserit vel longo tempore afuerit. nam si ad alium bona fide accipientem transtulerit, poterit usucapere possessor; et quamvis ipse qui vacantem possessionem nactus est, intellegat alienum esse funafam, tamen nihil hoc bonae fidei /ossesjori ad «jucapionem nocet, cum inprobata sit eorum s«z/entia qui putaverint furtivum fundum fieri powe.
52. Rurjus ex contrario accidit, ut qui sciat alienam rem se possidere usucapiat: velut si rem hereditariam cuius p<M\ressionem heres nondum nactus est, aliquis pos^derit; nam ei concessum est usucapere, si modo ea res est quae recipit
violence of the land of another, which is vacant either through the carelessness of the owner, or because the owner has died without a successor, or has been absent for a long time1. If then he transfer it to another, who receives it in gcod faith, this second possessor can get it by usucapion: for although the man himself who has taken the vacant possession, may be aware that the land belongs to another, yet this is no hindrance to the bona fide possessor's gaining it by usucapion', inasmuch as the opinion of those lawyers has been set aside who thought that land could be the subject of a theft.
52. Again, in the converse case, it sometimes happens that he who knows that he is in possession of a thing belonging to another may yet acquire an usucaptive title to it. For instance, if any one takes possession of an item of an inheritance of which the heir has not yet obtained possession3: for he is allowed
1 This paragraph is cited altnost that is to say, which will enable
as it stands in D. 41. 3. 37, being usucapion), viz. justa causa and bona
there stated as taken from Gaii Lib. fides.
II. Institut. Laws 36 and 38, which 3 In the case of a vacant inherit
are also very similar to §§ 50 and 52, ance, that is, one of which the heir
are noted as taken from Gaii Lib. II. had not yet taken possession, the Ro
Rcrum quotidianarum sive Aureo- man law permitted any one to enter
rum. and in time to acquire an usucaptive
3 The first taker is deficient in title, which was technically called
bona fides, but not so the second. pro herede. In this _case as neither
On the principle laid down in II. 44 bona fides nor good title at starting
the possession of the first is sufficient were necessary, the causa might really
to establish justa causa when the be founded on unfair motives; hence
transfer is made to the second. to use Gaius's phraseology it was an
Hence the second has both the re- "improba possessio et usucapio." quisites of civilispossessio (possession,
Possessio pro fierede. 83
usucapionem. quae species possessionis et usucapionis pro herede wcatur. (53.) Et in tantum haec usucapio concessa est, ut et res quae solo continentur anno usucapiantur. (54.) Quare autem etiam hoc casu soli rerum annua constituta sit usucapio, illa ratio est, quod o/im rerum hereditariarum possessione velxA ipsae hereditates usucapi credebantur, scilicet anno. lex enim xn tabularum soli quidem res biennio usucapi iussit, ceteras vero anno. ergo hereditas in ceteris rebus videbatur esse, quia soli non est, quia neque corporalis est: et quamvis postea creditum sit ipsas hereditates usucapi non posse, tamen in omnibus rebus hereditariis, etiam quae solo tenentur, annua usucapio remansit. (55.) Quare autem omnino tam inproba possessio et usucapio concessa sit, illa ratio est, quod voluerunt veteres maturius hereditates adiri, ut essent qui sacra facerent, quorum illis temporibus summa
to get it by usucapion, provided only it is a thing which admits of usucapion. This species of possession and usucapion is called pro herede^. 53. And this usucapion has been allowed to such an extent that even things appertaining to the soil are acquired by usucapion in one year. 54. The reason why in this case the usucapion of things belonging to the soil is allowed to operate in one year is this; that in former times, by possession of the items of an inheritance, the inheritances themselves were, in a manner, considered to be gained by usucapion, and that of one year. For a law of the Twelve Tables2 ordered that things appertaining to the soil should be acquired by usucapion of two years, but all other things in one. An inheritance therefore was considered to be one of the "other things," because it is not connected with the soil, since it is not even corporeal: and although at a, later period it was held that inheritances themselves could not be acquired in usucapion, yet the usucapion of one year remained established in respect of all the items of inheritances, even those connected with the soil. 55. And the reason why so unfair a possession and usucapion have been allowed at all is this: that the ancients wished inheritances to be entered upon speedily, that there might be persons to perform the sacred rites (of the family), to which the greatest attention
1 See D. 41. 5. * Tab. VI. 1. 3.
84 Possessio pro herede.
observado fuit, et ut creditores haberent a quo suum consequerentur. (56.) Haec autem species possessionis et usucapionis etiam lucrativa vocatur: nam sciens quisque rem alienam lucrifacit. (57.) Sed hoc tempore etiam non est lucrativa, nam ex auctoritate Hadriani senatusconsultum factum est, ut tales usucapionei revocarentur; et ideo potest heres ab eo qui rem usucepit, hereditatem petendo perinde eam rem consequi, atque si usucapta non esset. (58.) et necessario tamen herede extante ipso iure pro herede usucapi potest.
59. Adhiic etiam ex alus causis sciens quisque rem alienam usucapit. nam qui rem alicui fiduciae causa mancipio dederit vel in iure cessent, si eandem ipse possedent, potest usucapere, anno scilicet, etiam soli si sit. quae species usucapionis dicitur usureceptio, quia id quod aliquando habuimus recipimus per
was paid in those times, and that the creditors might have some one from whom to obtain their own. 56. This species, then, of possession and usucapion was also called lucrativa (profitable): for a man with full knowledge makes profit out of that which belongs to another. 57. At the present day, however, it is not profitable, for at the instance of the late emperor Hadrian a senatusconsultum was passed, that such usucapions should be set aside: and therefore the heir by suing for the inheritance may recover the thing from him who acquired it by usucapion, just as though it had not been acquired by usucapion. 58. But if the heir be of the kind called necessarius1 usucapion pro herede can by force of law take place.
59. There are other cases besides in which a man with full knowledge gets by usucapion the property of another. For he who has given a thing to any one in mancipium or made cessio in jure of it, by way oifiducia", provided he himself have the possession of the same, can acquire it by usucapion, and that too in one year3, even though it appertain to the soil. This species of usucapion is called usureceptio,
1 11. 153. III. 201. Possession,^. 216. Cic.proFlacc.c.ii.
a Fiducie was a pact, attached to 3 The principle is the same as in
a conveyance by mancipation or in § 54: the term of usucapion is one
iure cessio, whereby the recipient of year, because the thing is a pledge,
the thing or person transferred bound therefore one of the "caeterae res,"
himself to restore it on request. See and no account is taken of its being
Dirksen, sub yerbo, § 2. Savigny, On a pledge ai land.