Possessio pro herede.

83

usucapionem. quae species possessionis et usucapionis pro herede vocatur. (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 olim rerum hereditariarum possessione velut ipsae hereditates usucapi credebantur, scilicet anno. lex enim xII 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 Tables 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.

2 Tab. VI. 1. 3.

84

Possessio pro herede.

observatio 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 usucapiones 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. Adhuc etiam ex aliis causis sciens quisque rem alienam usucapit. nam qui rem alicui fiduciae causa mancipio dederit vel in iure cesserit, si eandem ipse possederit, 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 necessarius' 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 of fiducia3, provided he himself have the possession of the same, can acquire it by usucapion, and that too in one year, even though it appertain to the soil. This species of usucapion is called usureceptio,

usucapionem. (60.) Sed cum fiducia contrahitur aut cum creditore pignoris iure, aut cum amico, quod tutius nostrae res aput eum essent, si quidem cum amico contracta sit fiducia, sane omni modo conpetit usus receptio; si vero cum creditore, soluta quidem pecunia omni modo competit, nondum vero soluta ita demum competit, si neque conduxerit eam rem a creditore debitor, neque precario rogaverit, ut eam rem possidere liceret; quo casu lucrativa ususcapio conpetit. (61.) Item si rem obligatam sibi populus vendiderit, eamque dominus possederit, concessa est usureceptio: sed hoc casu praedium biennio usurecipitur. et hoc est quod volgo dicitur ex praedia

because we take back by usucapion what we have had once before. 60. But since a fiduciary contract is usually entered into either with a creditor by way of pledge, or with a friend for the purpose of more completely securing such property of ours as he has in his hands; if the assurance be made with a friend, usureceptio is in all cases allowable: but if with a creditor, then after payment of the money it is universally allowable, but before payment usucaptio lucrativa' is only allowed in case the debtor has neither hired the thing from the creditor, nor asked for its possession by way of precarium3. 61. Likewise, if the populus have sold a thing pledged to it, and the original owner keep possession, usureceptio is allowed: but in this case if the subject of the pledge be land*, it is usurecepted in two years. And hence comes the common saying that

1 Savigny (Treatise on Possession, p. 51) takes this as an example of the rule. "Nemo sibi causam possessionis mutare potest." The whole of the passage pp. 49-52 is worth reading.

2 A hirer has no juridical possession, but is regarded as agent for the lessor having then no possession, he can have no usucapion. D. 13. 6. 8; D. 41. 2. 3. 20. See Savigny, On Possession, translated by Perry, P. 206.

3 With reference to the matter here stated Savigny says, "Whoever simply permits another to enjoy property or an easement retains to himself the right of revocation at will,

and the juridical relation thence arising is called Precarium." See Savigny, On Possession, p. 355, where the learning on the subject of precarium and the interdict connected with it is set out at length.

4 Praedium is any thing attached to or connected with the land, sometimes the word is used antithetically to persona. See D. 43. 20. I. 43; and as to Praediator in the sense used in this paragraph see Cic. pro Balbo, c.20, and In Verrem, II. I. 54. Varro says that praedium properly signifies land pledged: de L.L. V. 40. So also does Pseudo-Asconius in his commentary on the passage from the Verrine orations quoted above.

86

Alienatio rei alienae.

tura possessionem usurecipi. nam qui mercatur a populo praediator appellatur.

62. Accidit aliquando, ut qui dominus sit alienandae rei potestatem non habeat, et qui dominus non sit alienare possit. (63.) Nam dotale praedium maritus invita muliere per legem Iuliam prohibetur alienare, quamvis ipsius sit vel mancipatum ei dotis causa vel in iure cessum vel usucaptum. quod quidem ius utrum ad Italica tantum praedia, an etiam ad provincialia pertineat, dubitatur.

64. Ex diverso agnatus furiosi curator rem furiosi alienare potest ex lege XII tabularum; item procurator, id est cui libera administratio permissa est; item creditor pignus ex pactione, quamvis eius ea res non sit. sed hoc forsitan ideo videatur

possession is usurecepted from a praediatura'. For he who buys from the people is called a praediator.

62. It sometimes happens that he who is owner has not the power of alienating a thing, and that he who is not owner can alienate. 63. For by the Lex Julia' a husband is prevented from alienating lands forming part of the dos against the will of his wife: although the lands are his own through having been for the purpose of dos mancipated to him or passed by cessio in jure, or acquired by usucapion3. Whether this rule is confined to Italian lands or extends also to those in the provinces is a doubtful point.

64. On the other hand, the agnate curator of a madman can by a law of the Twelve Tables* alienate the property of the madman: a procurator likewise (can alienate what belongs to another), i. e. a person to whom absolute management is intrusted a creditor also by special agreement may alienate a pledge, although the thing is not his own. But perhaps this

1 Sc., If the praediator who buys from the populus praediatura of the land, do not take possession, the original dominus will get back his dominium by usureceptio.

2 Lex Julia de adulteriis, temp. Augusti: Paul. S. R. 11. 21 b. This law which originally applied only to lands in Italy was extended by Justinian to the provinces also, see Just. Inst. 2. 8. pr.

VI.

3 For the law of dos see Ulpian,

4 The fragment of the law bearing on this topic (viz. Tab. v. l. 7), does not state this doctrine in so many words, but doubtless the rule given by Gaius was a direct consequence of the fact that this law gave the potestas over furiosi to the agnates. Cf. Cic. de Invent. Rhet. Lib. II. c. 50. 5 IV. 84.

Title by occupation.

87

fieri, quod voluntate debitoris intellegitur pignus alienari, qui olim pactus est, ut liceret creditori pignus vendere, si pecunia non solvatur.

65. Ergo ex his quae diximus adparet quaedam naturali iure alienari, qualia sunt ea quae traditione alienantur; quaedam civili, nam mancipationis et in iure cessionis et usucapionis ius proprium est civium Romanorum.

66. Nec tamen ea tantum quae traditione nostra fiunt naturali nobis ratione adquiruntur, sed etiam quae occupando ideo adquisierimus, quia antea nullius essent: qualia sunt omnia quae terra, mari, coelo capiuntur. (67.) itaque si feram bestiam aut volucrem aut piscem ceperimus, quidquid ita captum fuerit, id statim nostrum fit, et eo usque nostrum esse intelligitur, donec nostra custodia coerceatur. cum vero custodiam nostram evaserit et in naturalem libertatem se receperit, rursus occupantis fit, quia nostrum esse desinit. naturalem autem liber

alienation may be considered as taking place because the pledge is regarded as alienated by consent of the debtor, who originally agreed that the creditor should have power to sell the pledge, if the money were not paid'.

65. From what we have said, then, it appears that some things are alienated according to natural law, such as those alienated by ordinary delivery: some things according to the civil law, for the right originating from mancipation, or cessio in jure or usucapion, is peculiar to Roman citizens.

66. But not only those things which become ours by delivery are acquired by us on natural principle, but also those which we acquire by occupation, on the ground that they previously belonged to no one: of which class are all things caught on land, in the sea, or in the air. 67. If therefore we have caught a wild beast, or a bird, or a fish, anything we have so caught at once becomes ours, and is regarded as being ours so long as it is kept in our custody. But when it has escaped from our custody and returned into its natural liberty, it again becomes the property of the first taker, be

1 On which view it is no example of one man alienating what belongs to another.

2 See Appendix (D).

3 See Savigny, On Possession, p. 256, and also D. 41. 1. 3. 2 and 41. 1. 5. pr.