7. USUCAPION ON THE GROUND OF ABANDONMENT
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BOOK FORTY-ONEIUSUCAPION ON T H E GROUND O F ABANDONMENT 45 in-power and then dies, the son will not usucapt the thing on the ground of gift because gift there was none. 2. If a gift be made between husband and wife, no usucapion follows. Similarly, Cassius held that if a husband should make a gift to his wife and then divorce follows, there will be no usucapion because she cannot herself change the ground of her possession; but, he says, after the divorce, if the man leaves the thing with his ex-wife, she will usucapt as though the gift was made at that time. StillJulian thinks that a wife possesses what is given to her by her husband. 2 MARCELLUS, Digest, book 22: If a man who has made a gift of something decides to revoke it, usucapion will run for the donee, even though the donor institutes proceedings and raises a vindicatio to recover the thing. 3 POMPONIUS, Quintus Mucius, book 24: Suppose that a husband makes a gift to his wife or a wife to her husband; if the thing given belongs to someone else, the view of Trebatius is correct, that is to say, that so long as the donor is not made poorer by the gift, usucapion will run for the possessor. 4 POMPONIUS, Sabinus, book 32: A head of household makes a gift to his daughter-inpower and then disinherits her; if his heir ratifies the gift, she will usucapt it as from the date of the heir's ratification. 5 SCAEVOLA, Replies, book 5: A man who had begun to usucapt a slave on the ground of gift achieved nothing by purporting to manumit him, because he had not yet acquired ownership of him; the question asked was whether he ceased to usucapt the slave. I replied that the man in question appeared to have abandoned possession, and so his usucapion was broken. 6 HERMOGENIAN, Epitome of Law, book 2: Where a sale is made to mask a gift, the thing, when delivered, will be usucapted on the ground of gift not that of purchase. 7 USUCAPION ON THE GROUND OF ABANDONMENT 1 ULPIAN,Edict, book 12: If a thing be treated as abandoned, it ceases forthwith to be ours and will at once belong to the first taker because things cease to be ours by the same means by which they are acquired. 2 PAUL,Edict, book 54: If we know that the owner regards a thing as abandoned, we can acquire it. 1. Now Proculus says that such a thing does not cease to be the owner's until it is possessed by another;but Julian says that it no longer belongs to the abandoner but will become another's only when taken into possession; and that is correct. 3 MODESTINUS, Distinctions, book 6: A common question is whether a thing can be deemed abandoned in part. And indeed, if one co-owner should abandon his share in a thing owned in common, it ceases to be his for what one can do with the whole, one can do with a part. But the owner of a whole cannot bring it about that he retains one part while abandoning another. 4 PAUL,Sabinus, book 15: We can usucapt what has been believed to be abandoned and what we so believe, even though we do not know by whom it has been abandoned. 5 POMPONIUS, Sabinus, book 32: Suppose that you are possessing something as having been abandoned, and I, knowing that to be the case, buy it from you; it is settled law that I will usucapt it, and it is no obstacle thereto that the thing is not part of your assets; for the law would be the same if I bought from you a thing given to you by your wife, because you made the sale, as it were, by the will and consent of the owner. 1. What someone has abandoned becomes mine immediately; just as, when someone scatters largesse or releases birds, although he does not know the person whom he BOOK FORTY-ONE/USUCAPION ON THE GROUND OF ABANDONMENT 45 in-power and then dies, the son will not usucapt the thing on the ground of gift because gift there was none. 2. If a gift be made between husband and wife, no usucapion follows. Similarly, Cassius held that if a husband should make a gift to his wife and then divorce follows...