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What was the exact tenor of the rule of Usucapion in its earliest shape, it is not easy to say; but, taken with the limitations which we find attending it in the books, it was a most useful security against the mischiefs of a too cumbrous system of conveyance.
4 However, this admits of exception; for if an heir, who believes a thing lent or let to, or deposited with, the person whom he succeeds, to be a portion of the inheritance, sells or gives it by way of dowry to another who receives it in good faith, there is no doubt that the latter can acquire the ownership of it by usucapion; for the thing is here not tainted with the flaw attaching to stolen property, because an heir does not commit a theft who in good faith conveys a thing away believing it to be his own.
In the case therefore of a Mancipation, however slovenly the performance might have been, yet if it had been carried so far as to involve a Tradition or Delivery, the vice of the title would be cured by Usucapion in two years at most. I know nothing in the practice of the Romans which testifies so strongly to their legal genius as the use which they made of Usucapion.
But there is on record an opinion of Papinian, supported by the rescripts of the Emperors Pius, Severus, and Antoninus, that if, before the property of a deceased person who has left no heir is reported to the exchequer, some one has bought or received some part thereof, he can acquire it by usucapion.
As I have said before, I am far from asserting that the respect of men for de facto possession is a phenomenon which jurisprudence can account for by itself, but it is very necessary to remark that primitive societies, in adopting the principle of Usucapion, were not beset with any of the speculative doubts and hesitations which have impeded its reception among the moderns.
11 If there be a mistake as to the ground on which possession is acquired, and which it is wrongly supposed will support usucapion, usucapion cannot take place. Thus a man's possession may be founded on a supposed sale or gift, whereas in point of fact there has been no sale or gift at all.
For instance, he will usually, under the circumstances to be mentioned, allow a real action to be brought with a fictitious allegation namely, that the plaintiff has acquired a title by usucapion where this, in fact, is not the case; or, conversely, he will allow a fictitious plea on the part of the defendant, to the effect that the plaintiff has not acquired such a title where, in point of fact, he has.
10 Finally, it is to be observed that things are incapable of being acquired through usucapion by a purchaser in good faith, or by one who possesses on some other lawful ground, unless they are free from all flaws which vitiate the usucapion.
It was a rule of the civil law that if a man in good faith bought a thing, or received it by way of gift, or on any other lawful ground, from a person who was not its owner, but whom he believed to be such, he should acquire it by usucapion if a movable, by one year's possession, and by two years' possession if an immovable, though in this case only if it were in Italian soil; the reason of the rule being the inexpediency of allowing ownership to be long unascertained.
Our constitution has enacted that in usucapion too a similar rule shall be observed, and that the benefit of the possession shall continue in favour of the successor. 13 The Emperors Severus and Antoninus have decided by a rescript that a purchaser too may reckon as his own the time during which his vendor has possessed the thing.
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