The Same, Questions, Book XXIII. Where a slave to be born of Pamphila is bequeathed to me, and I purchase Pamphila, and she brings forth a child in my house, there is good reason for saying that the said child should not be understood to have been acquired by me for a valuable consideration, and therefore a demand can be made under the will for the child, just as if I had actually purchased it; so that, if a contribution of the price is made, I can obtain as much as the child would have cost me after having deducted the appraised value of the mother, and the judge appointed to hear the case must make an estimate of the amount of the same.

Papinianus, Questions, Book XXIII. Where a man, about to start upon a long journey, buried his money in the ground for safe-keeping, and, having returned, could not remember the place where the treasure was concealed, the question arose whether he had ceased to possess it, or if, afterwards, he should find the place, whether he would immediately begin to acquire possession. I gave it as my opinion that, as the money was not said to have been hidden for any other purpose than safe-keeping, he who concealed it should not be considered to have been deprived of the right of possession; nor did the failure of his memory prejudice that right, as no one else had appropriated the money. On the other hand, it might be held that we lose possession of our slaves during the time when we no longer see them. Nor does it make any difference whether I hide the money on my own premises, or on those of another; for if anyone should hide his property on my premises, I would not obtain possession of it unless I did so where it was above ground. Hence, the fact that the land belongs to another does not deprive me of my own possession, as there is no difference whether I have possession above, or under ground. 1The question arises why the possession of property belonging to his peculium is acquired by a slave for his master, without the knowledge of the latter. I said that this rule had been adopted on the ground of public convenience, to prevent masters from inquiring constantly about property belonging to the peculium of their slaves, and the reason why it was found there; so that, in this instance, it could not be held that possession was acquired by intention alone. For if any property is obtained which does not form part of the peculium, the knowledge of the master is necessary, but possession is acquired by the mere act of the slave. 2These matters having been explained, the question of losing possession comes up for discussion; and I hold that it makes a great deal of difference whether we hold possession by ourselves or through the agency of others. For, so far as the possession which we hold by our own act is concerned, it can be lost either by intention, or by our act, provided we relinquish it with the expectation of no longer holding it; but possession to property which is acquired by the act of a slave or a tenant is not lost, unless another has appropriated the property; and this can also occur even without our knowledge. There is still another distinction applicable to loss of possession, for the possession of winter and summer resorts is retained by mere intention,

The Same, Questions, Book XXIII. Even if another may have been entered upon property with the intention of taking possession of the same, the former possessor is held to retain possession, as long as he is ignorant that it has been taken by another. For, as the bond of an obligation is released in the same way that it has been made, so, where possession is held by intention alone, it should not be taken away without anyone’s knowledge.

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. 2Ad Dig. 41,3,44,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 144, Note 4.Although 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. 4Ad Dig. 41,3,44,4Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 175a, Note 1; Bd. I, § 176, Note 6.A 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.

Papinianus, Questions, Book XXII. No more than where anyone thinks that he has purchased something which he has not purchased.

Papinianus, Questions, Book XXIII. If the legatee takes possession of the legacy without any question arising to affect his title, even if the bequest has not been delivered to him, he will be entitled to acquire by usucaption the property bequeathed to him.