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USUCAPIO.

she did not wish thus to come into her husband's hand, she must in every year absent herself from him for three nights in order to interrupt the usus. (Gains, i. 110.) Thus Usucapio added to Usus produced the effect of Coemptio. In the case of the Hereditas, when the testator had the testament! factio, and had disposed of his property without observing the forms of Mancipatio and Nuncupatio, the person whom he had named his heres, could ob­tain the legal ownership of the hereditas by Usu­capio. (Gaius, ii. ,54.) In all these cases then the old law as to Usucapio was this : when the positive law had required the forms of Mancipatio in order that a certain end should be effected, Usucapio sup­plied the defect of form, by converting a possessio (subsequently called In bonis) into Dominium ex jure Quiritium. Usucapio then was not originally a mode of acquisition, but it was a mode by which a defect in the mode of acquisition was supplied, and this defect was supplied by the use of the thing, or the exercise of the right. The end of Usucapio was to combine the beneficial with the Quiritarian ownership of a thing. Accordingly the original name for Usucapio was Usus Auctoritas, the auctoritas of usus or that which gives to Usus its efficacy and completeness, a sense of Auctoritas which is common in the Roman Law. Some say that usus auctoritas is usus et auctoritas. (Cic. Pro Caecin.19.) [AucToaiTAS ; tutela.] But Usus alone never signifies Usucapio ; and consistently with this, in those cases where there could be no Usucapio, the Roman writers speak of Usus only. Possessio is the Usus of a piece of ground as op­posed to the ownership of it; and the term Usus was applied to the enjoyment of land of which a man either had not the ownership or of which he could not have the ownership, as the Ager publicus. In the later law, as it is known to us in the Pan^ dect, Usucapio was a mode of acquiring ownership^ the term Usus Auctoritas was replaced by the phrase Usu Capere, and in the place of Usucapio sometimes the phrase " possession© or longa pos-sessione capere " occurs ; but Possessio alone never is used for Usucapio. In order to establish the title by Usucapio, the Possession must be continuous or uninterrupted during the whole Usucapion. If there was an interruption of the Possession (usur-patio), and the Possession was acquired again, this was the commencement of a new Usucapio. The possession must also have a legal origin, without which the possession would have no effect. The possessor must be able to show an origin of his possession which would give him at least bonitarian ownership: this was called justa causa possessions, titulus usucapionis. The causa might be a bargain and salej a gift (donatio), a legacy and others.

It appears from a passage of Gaius already quoted, that in his time Usucapio was a regular mode of acquisition, which was applicable to things which had come to a man by tradition from one who was not the owner, and was applicable both to Res Mancipi and Nee Mancipi, if the possessor acquired the possession of them bona fide; that is, for instance, if he believed that he brought them from the owner. There were however some ex­ceptions to this rule: a man could never acquire the ownership of a stolen thing by Usucapio, for the Twelve Tables prevented it, and the Lex Julia et Plautia prevented Usucapio in the case of a thing Vi possessa. The meaning of the law was not that the thief or the robber could not acquire

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USUCAPIO.

the ownership by Usucapio, for the mala fides in which their possession originated was an obstacle to the Usucapio, but no person who bona fide bought the thing that was stolen or vi possessa, could acquire the ownership by Usucapio. (Gaius, ii. 45.) According to other authorities the rule as to a stolen thing was established by the Lex Atinia. Provincial lands also were not objects of Usucapio.

If a woman was in the tutela of her agnati, her Res Mancipi could not be objects of Usucapic, unless they had been received from her by traditio with the auctoritas of her tutor ; and this was a provision of the Twelve Tables. The legal incapa­city of the woman to transfer ownership by Man­cipatio must be the origin of this rale. The property of a woman who was in Tutela legitima could not be aa object of Usucapio, as Cicero ex­plains to Atticus (de tutela legitima nihil umcapi posse,, ad Alt. i. 5). The foundation of this rule, according to some, was the legal incapacity of a woman who was in the tutela of her Agnati, to make a will. [testamentum ; but see tutela.]

In order to acquire by usucapio, a person must have the capacity of Roman ownership ; conse­quently all persons were excluded from acquiring by Usucapio who had not the Commercium. The passage quoted by Cicero (de Offic. i. 12) from the Twelve Tables, " adversum hostem (i. e. pere-grinum) aeterna auctoritas," is alleged in support of this rule of law ; that is, a Peregrinus may have the use of a Res Mancipi which has been trans­ferred by traditio, but he can never acquire any­thing more by Usucapio.

Things could not be objects of Usucapio, which were not objects of Commercium. Accordingly all Res divini juris, such as temples and lands dedi­cated to the gods, and Res communes could not be objects of Usucapio. The Limits or bounds by which the Romanus Ager was marked out were consequently not objects of Usucapio, as to which there was a provision in the Twelve Tables. (Cic. de Leg. i. 21. "Quoniam usucapionem intra quinque pedes esse noluerunt.") The Quinque pedes are the limites linearii, the breadth of which was fixed at five feet by a Lex Mamilia. The approach to a sepulchre was also not an object of Usucapio. Free men'could not be objects of Usucapio. (Gaius, ii. 48.)

In the time of Gaius (ii. 51) a man might take possession of another person's land, provided he used no force (vis)) the possession of which was vacant either from the carelessness of the owner, or because the owner had died without a Successor [successio], or had been long absent; and if he transferred the field to a bona fide purchaser, the purchaser could acquire the ownership by Usuca­pio, even though the seller knew that the field was not his own. This rule was established against the opinion of those who contended that a Fundus could be Furtivus or an object of theft. But a man might in some cases acquire by Usucapio the ownership of a thing which he knew to be not his own: as if a man had possession of a thing be­longing to the hereditas, of which the heres had never acquired the-possession, provided it was a thing that could be an object of Usucapio. This species of possessio and usucapio was called Pro herede: and even things immovable (quae solo continentur) could be thus acquired by one year's usucapio. The reason was this: the Twelve Tables

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