6. USUCAPION ON THE GROUND OF GIFT
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44 BOOK FORTY-ONEIUSUCAPION ON THE GROUND O F GIFT and a kind of sale has been concluded between the master and his slave. 11 AFRICANUS, Questions, book 7: The common opinion that one, who thinks himself to have bought something when in fact he has not, cannot usucapt, is, says [Julian], true insofar as the purchaser has no good ground for his mistaken belief; for if the slave or procurator whom he charged to buy the thing should persuade him that he had bought it and, on that ground, deliver it, the better view is that usucapion will follow. 12 PAPINIAN, Replies, book 10: When a legatee is given missio in possessionem, the goods will be usucapted but without affecting the praetorian pledge. 13 SCAEVOLA, Replies, book 5: A man bought in good faith a third party's site and, before completing the requisite period of possession, began to build there; he continued the building despite being given notice by the owner of the land while the recuisite period of possession was still running; my question is whether his possession is thereby broken or, having started, continues. The reply was that on the case stated, there is no interruption of possession. 14 SCAEVOLA, Digest, book 25: The inheritance of their intestate sister devolved upon her two brothers, one of whom was present, the other, absent; the brother who was present conducted also the business of the absentee and, in the name of his brother and his own, sold all the land from the inheritance to Lucius Titius who bought it in good faith. The question was: When he knows that part belongs to an absentee, can the purchaser usucapt the whole? The reply was that if he believed the vendor to have his brother's mandate to sell, he would acquire ownership by long possession. USUCAPION AS HEIR OR AS POSSESSOR 1 POMPONIUS, Sabinus, book 32: Nothing can be usucapted as heir from the estate of a living person, even though the possessor thinks the thing to be that of a dead man. 2 JULIAN,Digest, book 44: A person granted missio in possessionem for the preservation of legacies does not interrupt the possession of one usucapting as heir, because he holds the thing only for safekeeping. What, then, is the position? Even if usucapion be completed, such person will still retain his lien, so that he will not withdraw unless the legacy has been made over to him or he has been given security in respect of it. 1. The commonly stated general proposition that no one can change the ground of his own possession must be interpreted to cover not only legal possession but also factual possession. Accordingly, it has been ruled that a tenant, depositee, or borrower cannot , for his own benefit, usucapt as heir. 2. Then, Servius says that a son cannot usucapt as heir a gift made to him by his head of household, doubtless because he was of opinion that the son had factual possession of it while the father was alive. It follows that a son instituted heir by his father cannot usucapt things, part of the inheritance, which were given to him by his father, so far as co-heirs' shares are concerned. 3 POMPONIUS, Quintus Mucius, book 23: There were many who thought that if I am heir and believe somethingto be part of the inheritance when it is not, I can usucapt it. 4 PAUL,Lex Julia et Papia, book 5: It is settled that one who has testamentifactio [as heir] can usucapt as heir. USUCAPION ON THE GROUND OF GIFT 2 PAUL,Edict, book 54: A person usucapts on the ground of gift to whom the thing was delivered by way of gift; it is not enough that he should think that there has been a gift; there must in fact be a gift. 1. If a head of household gives something to his son44 BOOK FORTY-ONE/USUCAPION ON THE GROUND OF GIFT and a kind of sale has been concluded between the master and his slave. 11 AFRICANUS, Questions, book 7: The common opinion that one, who thinks himself to have bought something when in fact he has not, cannot usucapt, is, says [Julian], true insofar as the purchaser has no good ground for his mistaken belief; for if the slave or procurator whom he charged to buy the thing should persuade him that he had bought it and, on that ground, deliver it, the better...