Publius, On the Edict, Book LIV. Where anything contrary to the principles of the Law has been accepted, it must not be applied to its full extent.

Paulus, On the Edict, Book LIV. The condition of the principal cannot be rendered worse by his agent without his knowledge.

The Same, On the Edict, Book LIV. The Senate decreed that no one should demolish a building in town or country, with a view to obtaining more for it, and that no one should buy or sell any of the materials of the same in the course of trade. The penalties fixed for those who violate this Decree of the Senate are, that he who made the purchase will be compelled to pay twice the amount of the price into the Public Treasury, and with reference to him who sold the materials, the sale shall be considered void. It is clear that if you pay me the purchase-money, since you are required to pay double the amount into the Treasury, you can recover the same from me because the sale is void, so far as I am concerned. This Decree of the Senate becomes operative, not only where a party sells his country seat or his town residence, but also where he sells one belonging to another.

Paulus, On the Edict, Book LIV. A certain individual sent his freedmen into Asia for the purpose of buying purple, and by his will bequeathed his purple wool to his wife. Servius gave it as his opinion that the goods which the freedman had purchased during the lifetime of the testator belonged to her.

Paulus, On the Edict, Book LIV. Possession, as Labeo says, is derived from the term sedes, or position, because it is naturally held by him who has it; and this the Greeks designate katoxyn. 1Nerva, the son, asserts that the ownership of property originated from natural possession, and that the trace of this still remains in the case of whatever is taken on the earth, on the sea, and in the air, for it immediately belongs to those who first acquire possession of it. Likewise, spoils taken in war, and an island formed in the sea, gems, precious stones, and pearls found upon the shore, become the property of him who first obtains possession of them. 2We also acquire possession by ourselves. 3Ad Dig. 41,2,1,3ROHGE, Bd. 14 (1875), Nr. 40, S. 105: Erwerb des Pfandrechts durch Unterbringung der Objecte in dem vom Gläubiger gemietheten Lokale.An insane person, or a ward, cannot begin to acquire possession without the authority of his curator or guardian; because, although the former may touch the property with their bodies, they have not the disposition to hold it, just as where anyone places something in the hands of a man who is asleep. A ward can begin to obtain possession by the authority of his guardian. Ofilius, and Nerva, the son, however, say that a ward cannot begin to obtain possession without the authority of his guardian, for possession is a matter of fact, and not of law. This opinion may be accepted where the ward is of such an age as to be capable of understanding what he is doing. 4Ad Dig. 41,2,1,4ROHGE, Bd. 14 (1875), Nr. 40, S. 105: Erwerb des Pfandrechts durch Unterbringung der Objecte in dem vom Gläubiger gemietheten Lokale.Where a husband gives possession to his wife for the purpose of making her a donation, several authorities hold that she is in actual possession, as a question of fact cannot be annulled by the Civil Law. And, indeed, what use would it be to say that the wife is not in possession, as the husband immediately lost it when he no longer desired to retain it? 5We also acquire possession by means of a slave or a son who is under our control; and this is the case with property constituting his peculium, even if we are ignorant of the fact, as was held by Sabinus. Cassius and Julianus: because those whom we have permitted to have peculium are understood to be in possession with our consent. Therefore, an infant and an insane person can obtain possession of property forming peculium, and can acquire it by usucaption; an heir also can do this, where a slave belonging to the estate makes a purchase. 6We can also acquire possession through anyone whom we possess in good faith as a slave, even though he belongs to another, or is free. If, however, we have possession of him fraudulently, I do not think that we can acquire possession through his agency. He who is in possession of another can neither acquire property for his master nor for himself. 7When we are joint-owners of a slave, we can individually acquire property through him to the full amount, as if he were one of our own slaves, if he intends to make the acquisition for one of his masters; just as is the case of acquiring ownership. 8We can obtain possession through a slave in whom we have the usufruct in the same way that he is accustomed to acquire property for us by means of his labor; nor does it make any difference if we do not actually possess him, for the same rule applies to a son. 9Moreover, he through whom we desire to obtain possession should be such a person as to be able to understand what possession means. 10Therefore, if you send a slave, who is insane, to take possession, you will by no means be considered to have acquired it. 11If you send a boy under the age of puberty to take possession, you will begin to do so; just as a ward acquires possession, and especially by the authority of his guardian. 12There is no doubt that you can obtain possession by means of a female slave. 13Ad Dig. 41,2,1,13ROHGE, Bd. 14 (1875), Nr. 40, S. 105: Erwerb des Pfandrechts durch Unterbringung der Objecte in dem vom Gläubiger gemietheten Lokale.A ward can acquire possession by means of a slave, whether the latter has arrived at the age of puberty, or not, if he directs him to take possession with the authority of his guardian. 14Nerva, the son, says that we cannot acquire possession by means of one of our slaves who is a fugitive, although it has been held that he remains in our possession as long as he is not in that of another; and therefore that, in the meantime, property can be acquired by him through usucaption. This opinion, however, is adopted on account of public convenience, so that usucaption may take place as long as no one has obtained possession of the slave. It is the opinion of Cassius and Julianus that possession may be acquired by such a slave, as well as by those whom we have in a province. 15Julianus says that we cannot acquire possession by means of a slave who has been actually given in pledge, for he is held to be possessed by the debtor in one respect, that is to say, for the purpose of usucaption. Nor can the slave who is pledged acquire property for the creditor, because although the latter may have possession of him, he cannot acquire property through him by means of a stipulation, or in any other way. 16The ancients thought that we could acquire anything by means of a slave belonging to an estate, because he was part of the said estate. Hence, a discussion arose whether this rule should not be extended farther so that where some slaves were bequeathed, the others could be possessed by the act of one of them. It was also discussed whether this would be the case if they were all purchased or donated together. The better opinion is that I cannot, under such circumstances, acquire possession by the act of one of them. 17If a slave is partially bequeathed to an appointed heir, he can acquire possession of the land of the estate for him, in proportion to his share in the said slave, by virtue of the legacy. 18The same rule will apply if I order a slave owned in common to accept an estate, because I obtain possession of my share of it on account of my interest in him. 19What we have stated with reference to slaves also applies where they themselves desire to acquire possession for us; for if you order your slave to take possession, and he does so with the intention of acquiring the property not for you, but for Titius, possession is not acquired for you. 20Possession is acquired by us by means of an agent, a guardian, or a curator. But when they take possession in their own names, and not with the intention of merely rendering their services, they cannot acquire possession for us. On the other hand, if we say that those who obtain possession in our name do not acquire it for us, the result will be that neither he to whom the property was delivered will obtain possession, because he did not have the intention of doing so, nor will he who delivered the article retain it, as he has relinquished possession of the same. 21Ad Dig. 41,2,1,21Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 153, Note 7.If I order a vendor to deliver the property to my agent, while it is in our presence, Priscus says that it will be held to have been delivered to me. The same rule will apply if I order my debtor to pay to another the sum which is due to me, for it is not necessary to take possession bodily and actually, but this can be done merely by the eyes and the intention. The proof of this appears in the case of property which, on account of its weight, cannot be moved, as columns, for instance; for they are considered to have been delivered if the parties consent, with the columns before them; and wines are held to have been delivered when the keys of the wine-cellar have been handed to the purchaser. 22Municipalities cannot possess anything by themselves, because all the citizens cannot consent. They do not possess the forums, and the temples, and other things of this kind, but they make use of them promiscuously. Nerva, the son, says that they can acquire, possess, and obtain by usucaption, the peculium of their slaves; others, however, hold the contrary; as they do not have possession of the slaves themselves.

Paulus, On the Edict, Book LXX. Moreover, only corporeal property can be possessed. 1We obtain possession by means of both the body and the mind, and not by these separately. When, however, we say that we obtain possession by the body and the mind, this should not be understood to mean that where anyone desires to take possession of land he must walk around every field, as it will be sufficient for him to enter upon any part of the land, as long as it is his intention to take possession of it all, as far as its boundaries extend. 2No one can obtain possession of property which is uncertain; as, for instance, if you have the intention and desire to possess everything that Titius has. 3Neratius and Proculus think that we cannot acquire possession solely by intention, if natural possession does not come first. Therefore, if I know that there is a treasure on my land, I immediately possess it, as soon as I have the intention of doing so; because the intention supplies what is lacking in natural possession. Again, the opinion of Brutus and Manilius, who hold that anyone who has had possession of land for a long time has also had possession of any treasure to be found there, even though he was ignorant of its existence, is not correct. For he who does not know that there is any treasure there does not possess it, although he may have possession of the land; and, if he was aware of its presence, he cannot acquire it by long possession, because he knows that it is the property of someone else. Several authorities hold that the opinion of Sabinus is the better one; namely, that he who knows that there is a treasure on his land does not gain possession of it unless it has been removed from its place, because it is not in our custody. I concur in this opinion. 4We can hold possession of the same thing by several different titles; for example, certain authorities think that he who obtains property by usucaption does so not only as a purchaser, but as the owner. For if I am the heir of him who has possession as a purchaser I possess the same property, but as purchaser and as heir; for while ownership can only be established by a single title, this is not the case with possession. 5Ad Dig. 41,2,3,5Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 154, Note 5.On the other hand, several persons cannot have possession of the same thing without division; for, indeed, it is contrary to nature that while I hold something you should also be considered to hold it. Sabinus, however, says that he who gives property held by a precarious title possesses it himself, as well as he who received it with the risk. Trebatius, also, approves this opinion, for he thinks that one person can have possession justly, and another unjustly, but that both of them cannot possess it either unjustly or justly. Labeo contradicts him, since, in the case of complete possession, it does not make much difference whether anyone has possession justly or unjustly. This is correct, for the same possession cannot be held by two persons, any more than you can be considered to stand on the very place on which I am standing, or to sit exactly where I am seated. 6When possession is lost, the intention of the party in possession must be considered. Therefore, although you may be on a tract of land, still, if you do not intend to retain it, you will immediately lose possession. Hence, possession can be lost by the intention alone, although it cannot be acquired in this way. 7If, however, you have possession solely by intention, even though another may be on the land, you will still have possession of the same. 8If anyone should give notice that a house is invaded-by robbers, and the owner, being overcome with fear, is unwilling to approach it, it is established that he loses possession of the house. But if a slave or a tenant, through whose agency I actually possess property, should either die, or depart, I will retain possession by intention. 9If I deliver an article to another, I lose possession of the same; for it has been decided that we hold possession until we voluntarily relinquish it, or are deprived of it by force. 10If a slave, of whom I am in possession, asserts that he is free, as Spartacus did, and is ready to maintain his freedom in court, he will not be considered to be in possession of the master whom he is preparing to oppose. This, however, is only correct when he has remained for a long time at liberty; otherwise, if, from his condition as a slave, he demands his freedom, and petitions for a judicial decision on this point, he, nevertheless, remains under my control, and I hold possession of him by intention, until he has been pronounced to be free. 11We possess by intention the places to which we resort in summer and in winter, although we leave them at certain times. 12Moreover, we can have possession by intention, and also corporeally, by means of another, as we have stated in the case of a tenant and a slave. The fact that we possess certain property without being aware of it (as is the case where slaves obtain peculium), should not present any difficulty, for we are held to possess it by both the intention and the actual agency of the slaves. 13Nerva, the son, thinks that we can possess movable property, with the exception of slaves, as long as it remains in our charge; that is to say, as long as we can obtain natural possession of it, if we wished to do so. For if a flock should be lost, or a vase should fall in such a way that it cannot be found, it immediately ceases to be in our possession, although no one else can obtain possession of it; but the case is different where anything cannot be found which is in my charge, because it still remains in the neighborhood, and diligent search will discover it. 14Likewise, wild animals which we shut up in enclosures, and fish which we throw into ponds, are in our possession. But fish which are in a lake, or wild animals that wander in woods enclosed by hedges, are not in our possession, as they are left to their natural freedom; for otherwise, if anyone purchased the woods, he would be considered to have possession of all the animals therein, which is false. 15Moreover, we have possession of birds which we have shut up or tamed, and subjected to our control. 16Certain authorities very properly hold that pigeons, which fly away from our buildings, as well as bees which leave our hives, and have the habit of returning, are possessed by us. 17Labeo and Nerva, the son, have given it as their opinion that I cease to possess any place which a river or the sea has overflowed. 18Ad Dig. 41,2,3,18Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 157, Note 6.If you appropriate any property which has been deposited with you, with the intention of stealing it, I cease to have possession of the same. If, however, you do not move it from its place, and have the intention of denying that it was deposited with you, several ancient authorities, and among them Sabinus and Cassius, very properly hold that I still retain possession, for the reason that a theft cannot be committed without handling the article, nor can theft be committed by mere intention. 19The rule that no one can himself change his title to the possession of property has been established by the ancient authorities. 20If, however, he who deposited an article with me, or lent it to me, should sell or give me the same thing, I will not be considered to have changed the title by which I hold possession, since I did not have possession. 21There are as many kinds of possession as there are ways of acquiring property which does not belong to us; as, for example, by purchase, by donation, by legacy, by dowry, as an heir, by surrender as reparation for damage committed, by occupancy, as in the case where we obtain property from the land or the sea, or from the enemy, or which we ourselves create. And, in conclusion, there is but one genus of possession, but the species are infinite in number. 22Possession may be divided into two kinds, for it is acquired either in good, or in bad faith. 23The opinion of Quintus Mucius, who included among the different kinds of possession that given by order of a magistrate, for the purpose of preserving the property, or where we obtain possession because security against threatened injury is not furnished, is perfectly ridiculous. For where anyone places a creditor in possession for the purpose of preserving property, or where this is done because security has not been furnished against threatened injury, or in the name of an unborn child, he does not really grant possession, but merely the custody and supervision of the property. Hence, when a neighbor does not give security against threatened injury, and we are placed in charge, and this condition continues for a long time, the Prætor, upon proper cause being shown, will permit us to obtain actual possession of the property.

Paulus, On the Edict, Book LIV. If the owner is unwilling to return to the land because he fears the exertion of superior force, he will be considered to have lost possession. This was also stated by Neratius.

Paulus, On the Edict, Book LIV. Usurpation is the interruption of usucaption. Orators call usucaption frequent use.

Paulus, On the Edict, Book LIV. In the next place, we must speak of usucaption; and, in doing so, we must proceed in regular order, and examine who can acquire property by usucaption, what property can be acquired in this manner, and what time is necessary. 1The head of a household can acquire by usucaption; a son under paternal control can also do so; and this is especially the case where, as a soldier, he obtains by usucaption property acquired during military service. 2A ward can acquire property by usucaption if he takes possession of it with the consent of his guardian. If he takes possession without the consent of his guardian, but still has the intention of doing so, we say that he can acquire the property by usucaption. 3An insane person, who takes possession before his insanity appears, acquires the property by usucaption; but such a person can only acquire it in this manner if he has possession by a title through which usucaption may result. 4A slave cannot hold possession as an heir. 5If the crops, the children of slaves, and the increase of flocks did not belong to the deceased, they can be acquired by usucaption. 6The Atinian Law provides that stolen property cannot be acquired by usucaption, unless it is restored to the control of the person from whom it was stolen; and this must be understood to mean that it must be restored to the owner, and not to him from whom it was secretly taken. Therefore, if property is stolen from a creditor to whom it was lent or pledged, it should be returned to the owner. 7Ad Dig. 41,3,4,7Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 182, Note 10.Labeo also says that, if the peculium of my slave is stolen without my knowledge, and he afterwards recovers it, it will be held to have been restored to my control. It is more accurate to say, provided I was aware that the property had been returned to me. For it is not sufficient for the slave merely to recover the property which he had lost without my knowledge, but I must also have intended it to form part of his peculium, for if I did not wish this to be done, it will then be necessary for me to obtain actual control of it. 8Hence, if my slave steals anything from me, and afterwards returns the article to its place, it can be acquired by usucaption as having been restored to my control, just as if I did not know that it had been stolen; for if I did know it, we require that I should be aware that it had been returned to me. 9Moreover, if the slave should retain as part of his peculium the same property which he stole, it will not be considered to have been returned to me (as is stated by Pomponius), unless I have possession of it in the same way that I did before it was stolen; or if, when I learned that it had been taken, I consented that the slave should include it in his peculium. 10Labeo says that if I deposit any property with you, and you sell it for the sake of gain, and then, having repented, you repurchase it, and retain it in the same condition in which it formerly was, whether I am ignorant or aware of the transaction, it will be considered to have been restored to my control, according to the opinion of Proculus, which is correct. 11Where the property of a ward is stolen, it must be held to be sufficient if his guardian was aware that it had been returned to the house of the ward. In the case of an insane person, it will be sufficient if his curators know that the property has been returned. 12Property must be considered to have been restored to the control of the owner when he recovers possession of it in such a way that he cannot be deprived of it. This must be done just as if the property was his; for if I purchase an article, not knowing that it has been stolen from me, it will not be held to have been restored to my control. 13Even if I should bring suit to recover property which has been stolen from me, and I accept payment of the amount at which it was appraised in court, it can be acquired by usucaption, even though I did not obtain actual possession of it. 14The same rule must be said to apply even if the stolen property has been delivered to another with my consent. 15An heir who succeeds to the rights of the deceased cannot acquire by usucaption a female slave whose mother had been stolen, and was found among the property of the deceased, provided the latter was not aware of the fact, if she conceived and brought forth the child while in his possession. 16If my slave steals a female slave and gives her to me in return for his freedom, the question arises whether I can acquire by usucaption the child of said female slave who conceived while in my possession. Sabinus and Cassius do not think that I can, because the illegal possession which is obtained by the slave would prejudice his master; and this is correct. 17If, however, anyone gives me a female slave who has been stolen, in order to induce me to manumit my slave, and the female slave conceives and has a child while in my possession, I cannot acquire that child by usucaption. The same rule will also apply if anyone gives me the said female slave in exchange, or by way of payment, or as a present. 18If the purchaser ascertains before she has the child that the female slave belongs to another, we say that he cannot acquire the child by usucaption, but he can do so if he was not aware of this. If, however, he should learn that she belongs to someone else, when he had already begun to acquire the child by usucaption; we must take into consideration the beginning of the usucaption, as has been decided in the case of property that has been purchased. 19Ad Dig. 41,3,4,19Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 186, Noten 12, 14.If stolen sheep have been sheared while in possession of the thief, the wool cannot be acquired by usucaption. The rule is otherwise, however, in the case of a bona fide purchaser, as there is no need of usucaption, since the wool is a profit, the right to which immediately vests in the purchaser. The same rule can be said to apply to lambs, if they have been disposed of. This is true. 20Ad Dig. 41,3,4,20Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 187, Note 3.If you make a garment of stolen wool, the better opinion is that we should consider the original material, and therefore the garment is stolen property. 21If a debtor steals anything given by him in pledge, and sells it, Cassius says that it can be acquired by usucaption, because it is considered to have come under the control of the owner who pledged it, although an action for theft can be brought against him. I think that this opinion is perfectly correct. 22If you forcibly deprive me of the possession of land, and you yourself do not take possession, but Titius, finding it unoccupied, does, he can acquire it by usucaption through lapse of time, for although it is true that an interdict on the ground of violence will lie, because I have been forcibly ejected; still, it is not true that Titius obtained possession by violence. 23But if you should eject me from land which I possess in bad faith, and sell it, it cannot be acquired by usucaption, for while it is true that possession has been obtained by force, this has not been done by the owner. 24The same rule must be said to apply to the case of one who ejected a person having possession as the heir, although he knew that the land formed part of an estate. 25Cassius says that if the owner of land forcibly ejects the party in possession, the land will not be considered to have again been brought under his control, as he who was ejected can recover possession of it by means of an interdict based on violence. 26If I have a right of way through your land, and you forcibly prevent me from using it, I will lose the right of way by not making use of it for a long time, because an incorporeal right is not considered susceptible of possession; and no one can be said to be deprived of a right of way, that is to say, of a mere servitude, in this manner. 27Likewise, if you take possession of land which is vacant, and afterwards prevent the owner from entering upon the same, you will not be considered to have taken forcible possession of the property. 28It is true that a release of a servitude can be acquired by usucaption, because the Scribonian Law, which established a servitude, prohibited the usucaption of one; but it does not grant a release if the servitude has already been extinguished. Hence, if I owe you a servitude, for instance, that which prevents me from building my house any higher, and I have kept it built higher for the prescribed time, the servitude will be extinguished.

Paulus, On the Edict, Book LIV. He has possession as a purchaser who has actually bought the property, and it will not be sufficient for him merely to be of the opinion that he is in possession as purchaser, but the title to the property, as purchased, must actually exist. If, however, I think that I owe you something, and I deliver it to you without your being aware that it belongs to someone else, you can acquire it by usucaption. Why, therefore, can you not acquire it by usucaption if I deliver it to you, thinking that I have sold it to you? This is because the time of the delivery is considered in all other contracts; hence, if I knowingly stipulate for property belonging to a third party, I can acquire it by usucaption if I thought that it belonged to you when it was delivered to me. In the case of a purchaser, however, the time when the contract was entered into is considered, and therefore the purchase must be made in good faith, and also possession must be obtained in this way. 1Title to possession and title to usucaption are different, for anyone may truthfully be said to have made a purchase, but to have made it in bad faith; for anyone who knowingly buys property in bad faith has possession of it as the purchaser, although he cannot acquire it by usucaption. 2Where a purchase is made under a condition, the purchaser cannot acquire the property by usucaption while the condition is pending. The same rule applies if he thinks that the condition has been fulfilled, and this has not yet taken place, for he resembles a person who thinks that he has made a purchase, when this is not the case. On the other hand, if the condition has been complied with and he is ignorant of the fact, he can be said to acquire it by usucaption, according to Sabinus, who held that this could be done by considering rather the nature of things than mere opinion. Some difference, however, exists between these two instances, because where anyone thinks that property belongs to another, which, in fact, belongs to the vendor, he occupies the position of a purchaser. But when he thinks that the Condition has not yet been complied with, it is just as if he thought that he had not yet made the purchase. This point can be presented more clearly if possession is delivered to the heir, who does not know that the deceased bought the property but thinks it was delivered to him for some other reason; but should it be held that usucaption cannot be acquired under such circumstances? 3Sabinus says that if property has been purchased in such a way that the sale will be void unless payment is made within a certain time, it cannot be acquired by usucaption, unless payment has actually been made. Let us see, however, whether this is a condition or an agreement; for if it is an agreement, the result will more readily be accomplished by payment than by complying with the condition. 4If settlement is to be made within a specified time (that is to say, if anyone does not offer to pay a better price within that time), Julianus thinks that the sale is perfected, and that the profits will belong to the purchaser, who will have a right to acquire the property by usucaption; but others have held that the sale was made under a condition. He said that it was not made under a condition, but that it was annulled under a condition, which opinion is correct. 5A sale is absolute where it is agreed that it shall be void in case the purchaser should not be content with the property within a certain time. 6I purchased Stichus, and Damas was delivered to me instead of him, by mistake. Priscus says that I cannot acquire this slave by usucaption, because what was not bought cannot be acquired in that way by the purchaser. If, however, a tract of land was purchased and a larger amount has been in possession than what was conveyed, it can be acquired by lapse of time, as the entire tract, and not separate portions of the same, is possessed. 7You purchase the property of a person with whom slaves have been deposited. Trebatius says that you cannot acquire the said slaves by usucaption, because they were not purchased. 8Ad Dig. 41,4,2,8Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 178, Note 7.A guardian bought an article at an auction of his ward, which he thought belonged to him. Servius says that he can acquire it by usucaption, and his opinion has been accepted, for the reason that the condition of the ward does not become worse if he has a purchaser in his guardian, who will pay more money for the property. If he should purchase it for less, he will be liable to an action on guardianship, just as if he had transferred it to some other person for less than it was worth. This, it is said, was also decided by the Divine Trajan. 9Many authorities hold, if an agent buys property at auction by the direction of his principal, that he can acquire it by usucaption, as a purchaser, on the ground of public convenience. The same rule applies if, while transacting the business of his principal, he makes the purchase without the knowledge of the latter. 10If your slave purchases property for his peculium which he knows belongs to another, you cannot acquire it by usucaption, even if you are not aware that it belongs to someone else. 11Celsus says that if my slave, without my knowledge, obtains possession of property for his peculium, I can acquire it by usucaption. If he does not obtain it as a part of his peculium, I cannot acquire it, unless I know that he has obtained it; and if he has possession which is defective in law, my possession will also be defective. 12Pomponius also says, with reference to property which is possessed in the name of the owner, that the intention of the latter, rather than that of the slave, should be considered. If the slave possesses property as part of his peculium, then his intention must be taken into consideration; and if the slave possesses it in bad faith, and his master obtains it in order to hold it in his own name, for instance, by depriving the slave of his peculium, it must be said that the same reason for possession exists, and therefore, that the master cannot avail himself of usucaption. 13If my slave should purchase property for his peculium in good faith, and when I first heard of it I knew the property belonged to another, Cassius says that usucaption can take place, for the beginning of the possession was without any defect. If, however, at the time he purchased the property, even though he did so in good faith, I knew that it belonged to someone else, I cannot acquire it by usucaption. 14If my slave should give to me, in consideration of his freedom, certain property which he had purchased in bad faith, I cannot acquire it by usucaption; for Celsus says that the first defective possession still continues to exist. 15If I make a purchase from a ward without the authority of his guardian, believing that he has reached the age of puberty, we hold that usucaption can take place, as this rather applies to the property than to the opinion. If, however, you know the vendor to be a ward, and you still believe that wards have the right to transact their own affairs without the authority of their guardians, you will not acquire the property by usucaption, because an error of law is of no advantage to anyone. 16Ad Dig. 41,4,2,16Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 199, Note 5.If I purchase property from an insane person whom I think to be of sound mind, it has been established that I can acquire it by usucaption on the ground of public convenience, although the purchase was void; and therefore I will neither be entitled to an action founded upon eviction, nor will the Publician Action lie, nor will any benefit result from previous possession. 17If you sell me property which you are about to acquire by usucaption as a purchaser, and I know that it belongs to another, I cannot acquire it by usucaption. 18Although possession may benefit the immediate heir of the deceased, a more distant heir cannot obtain possession of the property. 19If the deceased bought property in good faith, it can be acquired by usucaption, even though the heir knew that it belonged to someone else. This rule should be observed, not only in the case of prætorian possession, but also in that of trusts by virtue of which an estate is transferred under the Trebellian Decree of the Senate, as well as with reference to all other prætorian successors. 20The time that the property was possessed by the vendor benefits the purchaser in acquiring usucaption of the same. 21If I purchase property belonging to another, and while I am in the course of acquiring it by usucaption, the owner brings an action to recover it from me, my usucaption will not be interrupted by the joinder of issue in the case. If, however, I should prefer to pay the appraised value of the property in court, Julianus says that the title to possession is changed, so far as he who paid the value of the property in court is concerned. The same rule will apply, if the owner donates the property to him who purchased it from one who is not its owner. This opinion is correct.

Paulus, On the Edict, Book LIV. He to whom property has been delivered as a gift acquires it by usucaption, because of the donation. It is not sufficient to think that this was the case, but it is necessary for the donation actually to be made. 1If a father makes a donation to his son whom he has under his control, and then dies, the son cannot acquire the property given by usucaption, for the reason that the donation is void. 2Ad Dig. 41,6,1,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 176, Note 6.Where a donation is made between husband and wife, usucaption does not take place. Moreover, Cassius says that if a husband should give property to his wife, and a divorce should then take place, usucaption cannot be acquired because the wife cannot, herself, change the title to possession. He states that the rule is different, and that she can obtain the property by usucaption after the divorce, if the husband has allowed her to use the property just as if he was understood to have donated it to her. Julianus, however, thinks that a wife is in possession of property donated by her husband.

Paulus, On the Edict, Book LIV. Ad Dig. 41,7,2 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 184, Note 1.We can acquire property on the ground of abandonment, if we know that it is considered as relinquished by its owner. 1Proculus holds that the property does not cease to belong to the owner, unless possession of it is acquired by someone else. Julianus, however, thinks that it ceases to belong to the owner when he abandons it, but that it does not become the property of another, unless he obtains possession of it. This is correct.

Paulus, On the Edict, Book LIV. If I possess anything which I think was bequeathed to me, and this is not the case, I cannot, in the capacity of legatee, acquire it by usucaption.

Paulus, On the Edict, Book LIV. Property can be acquired by usucaption on the ground of its being a legacy, where something belonging to another has been bequeathed, or where it belonged to the testator, and it is not known that it was taken away by a codicil; for, in instances of this kind, a good reason exists for usucaption to take effect. The same rule can be said to apply where the name of the legatee is in doubt, as, for example, where a bequest is made to Titius, and there are two individuals of that name, so that one of them thinks that he was meant, when this was not the case.

Paulus, On the Edict, Book LIV. If property which has been appraised is delivered before the marriage has been solemnized, it cannot be acquired by usucaption, either on the ground of purchase or on that of ownership.

Paulus, On the Edict, Book LIV. There is a kind of possession which is said to be based upon ownership. For in this way we possess everything which we acquire from the sea, the land, or the air, or which becomes ours by the action of the alluvium of streams. We also possess any offspring of property which we hold in the name of others; as, for instance, we hold as our own the child of a female slave belonging to an estate, or who has been purchased; and, in like manner, we possess the profits derived from property which has been bought or donated, or which constitutes part of an estate.

Paulus, On the Edict, Book LIV. Where he has his domicile:

The Same, On the Edict, Book LIV. Fulcinius was accustomed to say that possession was acquired by violence, whenever anyone who was not the owner, but who was in possession, was forcibly ejected.

Paulus, On the Edict, Book LIV. If a slave takes property by violence, and an action is brought against him when he becomes free, although he has the power to proceed against his master, suit cannot legally be brought against the manumitted slave after a year has elapsed; because, no matter against whom proceedings could have been instituted, the plaintiff will be excluded. If an action should be brought against the master within a year, and afterwards one is brought against the manumitted slave, Labeo says that an exception on the ground of res judicata, will operate as a bar.

Paulus, On the Edict, Book LIV. Pedius says that he who seizes property by violence while the terror which prevails during a shipwreck exists can be said to have taken it in the shipwreck. 1The Divine Antoninus stated as follows, in a Rescript having reference to those who are guilty of pillage during a shipwreck: “What you wrote me concerning the shipwreck of a vessel or a boat was done for the purpose of ascertaining what penalty I think should be inflicted upon those who have stolen something from the vessel. I think that this can be easily determined, for there is a great difference where persons take property which is about to be lost, and where they criminally seize that which can be saved. Therefore, if considerable booty appears to have been obtained by force, you will, after conviction, banish freemen for three years, after having them whipped; or, if they are of inferior rank, you will sentence them to labor on the public works for the same time; and you will sentence slaves to the mines after having scourged them. When the property is not of great value, you can discharge the freemen, after having whipped them with rods; and the slaves, after having scourged them. And, by all means, in other cases, as well as in those of this description, the condition of the persons and the nature of the property should be carefully considered, in order that no more severity or indulgence may be exercised than the circumstances demand.” 2These actions are granted to heirs, as well as against them, according to the amount of property which comes into their hands.

Paulus, On the Edict, Book LIV. When anything is donated to a Proconsul or a Prætor, in violation of the law on extortion, he cannot acquire it by usucaption. 1The same law provides that: “Sales or leases made for a greater or a less price than is just are for this reason void, and usucaption is prevented before the property comes into the hands of him who had it, or his heir.”

Paulus, On the Edict, Book LIV. Anything which is established against a rule of law should not become a precedent. 1Two heirs of the same person cannot each become the heir to his entire estate.