si is ad quem ancillae ususfructus pertinet, partum Gell. xvii. 7, I: Legis veteris Atiniae verba Paul: dicit lex Atinia, ut res furtiva non 1 But sometimes even though a man possess in perfect good faith, usucapion does not run in his favour, as when a man possesses a thing stolen or taken by violence; for a law of the Twelve Tables prohibits usucapion of stolen goods, the l. Iulia et Plautia of what is taken by violence. The common saying, that by a law of the Twelve Tables usucapion is forbidden of things stolen or taken by violence, does not concern incapacity for usucapion of the thief himself or person forcibly taking possession (for then usucapion is not available for another reason, that of course he possesses in bad faith), but the fact that no other person has the right of usucapion, although he have purchased from him in good faith. Wherefore in respect of movables it does not readily happen that usucapion attaches to a bonae fidei possessor, because he who has sold and delivered property of another commits a theft, and the like happens if the delivery have been upon some other ground. Sometimes, however, it is different; for if an heir sell or present a thing that has been lent or let to, or deposited with the deceased, thinking it to belong to the inheritance, he commits no theft; the like, if the usufructuary of a female slave sell her offspring in the belief that it is his own, for no theft is committed. . . . It is possible also for a man without violence to acquire possession of another's estate; which is void either through neglect of the owner, or because the owner has died without a successor, or has been absent for a long time; and if he transfer it to another who takes it in good faith, the possessor will be able to acquire by usus. 2 The words of the ancient lex Atinia are: 'Of such things as shall have been stolen let the title [of the owner] be perpetual.' BOOK III. Pt. I. Ch. I. BOOK III. Pt. 1. Ch. I, usucapiatur, nisi in potestatem eius, cui subrepta est, revertatur.-1. 4, § 6, D. h. t.' Id. In lege Atinia in potestatem domini rem furtivam venisse videri, et si eius vindicandae potestatem habuerit, Sabinus et Cassius aiunt.— D. 50, 16, 215.2 Id.: Si tu me vi expuleris de fundi possessione nec apprehenderis possessionem, sed Titius in vacuam possessionem intraverit, potest longo tempore capi res;-(Iul.) quia lex Plautia et Iulia ea demum vetuit longa possessione capi, quae vi possessa fuissent, non etiam, ex quibus vi quis deiectus fuisset.-1. 4, § 22, l. 33, § 2, h. t.3 Imp. Dioclet. Servum fugitivum sui furtum facere et ideo non habere locum nec usucapionem nec longi temporis praescriptionem manifestum est.-C. 6, 1, 1.* The effect of Usucapion consists in the conversion of the (bonae fidei) possessio or of Bonitarian ownership into that which was Quiritarian. 1 The lex Atinia states that a stolen thing is not acquired by usus unless it return under the control of him from whom it was stolen. 2 Sab. and Cass. say that in the lex Atinia stolen property is regarded as coming under the control of the owner if he have had so much as the power to claim it. * If you have driven me by violence out of the possession of an estate, and have not taken possession, but Titius has entered upon the void possession, the property admits of usucapion after lapse of long time;-because the 1. Plaut. et Iul. forbade only usucapion of those things which had been possessed by violence, not also [usucapion] of things from which some one had been forcibly ejected. It is clear that an escaped slave commits the theft of himself, and that therefore neither usucapion nor longi temp. praesc. obtains. $81. LATER LAW (LONGI TEMPORIS POSSESSIO). Already in the earlier Classical Law there originated a means of security for the possession of provincial estates continued for ten years inter praesentes,' for twenty years inter absentes,' and acquired with 'iustum initium,' which for the possession of Peregrini supplied the place of usucapion, in their case not applicable: this was the 'longi temporis praescriptio s. exceptio' against the rei vindicatio of the owner, which in course of time was converted into a true prescription of ownership (longi temporis possessio), applicable also to Italian estates and for Roman citizens. Modest. Longae possessionis praescriptionem tam in praediis quam in mancipiis locum habere manifestum est.-D. 44, 3, 3.1 Imp. Iust. Si quis emptionis vel donationis vel alterius cuiuscumque contractus titulo rem aliquam bona fide per decem vel viginti annos possederit et longi temporis exceptionem contra dominos eius sibi adquisierit, posteaque fortuito casu possessionem eius rei perdiderit: posse eum etiam actionem ad vindicandam eandem rem habere sancimus. Hoc enim et veteres leges, si quis eas recte inspexerit, sanciebant.-C. 7, 39, 8 pr.2 This 'longi temporis possessio' was by Justinian amalgamated with the civil usucapio in such way that thenceforth only the former should obtain in all Immovables (without distinction between Italian and 1 It is manifest that the plea of long possession obtains in relation as well to estates as to slaves. 2 Whosoever by virtue of the legal title of sale, or gift, or any other contract, has possessed a thing during ten or twenty years, and has acquired against its owners the plea of limitation, and afterwards by chance has lost the possession of such thing, we enact that he can have also the action for proprietary restitution of the same. For this was enacted by the old statutes also, if they have been correctly examined. C C BOOK III. Pt. I. Ch. I. XL annor. provincial estates), but for Movables always a prescription of three years, by this time exclusively called USUCAPIO, should be introduced; both subject to the retention of the other requisites of usucapion, with full allowance, however, of the accessio possessionis." -constitutionem promulgavimus qua cautum est, ut res quidem mobiles per triennium usucapiantur, immobiles vero per longi temporis possessionem, i.e. inter praesentes decennio, inter absentes viginti annis usucapiantur, et his modis. non solum in Italia, sed in omni terra, quae nostro imperio gubernatur, dominium rerum iusta causa possessionis praecedente adquiratur.—pr. I. h. t. 2, 6.' Alongside of this, the limitation of the action of ownership as an extraordinary kind of prescription, * Sc. xxx vel longissimi temporis possessio, which existed from the time of Constantine, was still recognised by Justinian, without distinction between movables and immovables, and without reference to the capacity of the thing for usucapion; its requisite was alone bona fides on the part of the possessor, which, however, merely obtains against persons subject to Limitation of Actions. d Ec. rei vindicationem. d Quodsi quis eam rem desierit possidere, cuius dominus exceptione XXX vel XL annorum expulsus est, praedictum auxilium non indiscrete, sed cum moderata divisione ei praestare censemus, ut, si quidem bona fide ab initio rem tenuit, simili possit uti praesidio, sin vero mala fide eam 1 We have put forth a constitution with the provision that movables should be acquired by usus in the space of three years, but immovables by longi temp. poss., i.e., ten years as between parties residing in the same locality, twenty years as between parties locally separated from each other, and that ownership of things in this way should be acquired not only in Italy, but in every country subject to our sovereignty, if a legal ground exist for possession. adeptus est, indignus eo videatur.-1. 8, § 1, C. cit.' BOOK III. Pt. 1. Ch. I. ADQUISITIONES NATURALES. $82. TRADITIO." Traditio (delivery) is the yielding up of possession, that is, the grant to some one of the actual control over a thing with the agreed purpose-in pursuit of a definite, legally admissible, object of some legal transaction (iusta causa traditionis)-to transfer and to secure ownership to him. And further, taking possession with the consent of the owner falls under the notion of Tradition in the wider sense. It is not requisite that the taker acquire or retain possession which is also protected by Law. Gai. Hae quoque res, quae traditione nostrae fiunt, iure gentium nobis adquiruntur: nihil enim tam conveniens est naturali aequitati, quam voluntatem domini, volentis rem suam in alium transferre, ratam haberi.-1. 9, § 3, D. h. t. (=de A. R. D. 41, 1).* Paul. Numquam nuda traditio transfert dominium, sed ita, si venditio aut aliqua iusta causa praecesserit, propter quam traditio sequeretur.-1. 31 pr. eod.3 1 But if a person have ceased to possess such thing, the owner of which has been defeated by a plea of 30 or 40 years, we deem that the aforesaid aid shall be afforded him not indiscriminately, but with some difference, so that if indeed he have held the thing from the beginning, he can avail himself of like defence, but if he have acquired it in bad faith, he shall be considered as having no claim upon it. 2 Moreover, those things are acquired by us through the i. g. which become ours by delivery, for nothing is so conformable to natural equity as to uphold the will of the owner who desires to transfer his property to another. 3 Bare delivery never passes ownership, but only if sale or some lawful cause has preceded, by reason of which delivery followed. a Anct. Law,' p. 279. Inst. iv. 1, 41, and § 148, ad init. § 89. |