III. On the Mode of Acquiring Ownership by Civil Law

What is usucapion or prescription? The chief mode of acquiring ownership by civil law is usucapion or prescription, which is defined: the acquisition of ownership, or liberation from some obligation, and the extinction of another's right through continuation of possession, for the time and in the manner defined by the laws. C. I. 2105; C. G. 2219; C. H. 1930; C. A. 1451, 1452. Acquisition of ownership; for through legitimate usucapion or prescription, from the disposition of civil and canon law, the possessor acquires ownership of another's thing, or is freed from some obligation.

For usucapion or prescription is twofold: one acquisitive of right, the other liberative from servitude or another burden. The former is properly called usucapion, the latter properly prescription; but these names are often used promiscuously, and in reality they cannot be separated, for what is acquisitive with respect to one is extinctive with respect to another. C. A. 1451, 1478; C. B. 194, 937, 945; C. L. 505. And the extinction of another's right; for after the possessor by legitimate prescription has acquired ownership of another's thing, or has freed himself from some obligation, on the part of the prior owner not only is ownership extinguished, but also every right to the thing; hence one who legitimately prescribes some thing is not bound by any obligation toward another.

C. I. 1236; C. G. 1234; C. A. 1449. Through continuation of possession for the time, etc.; for continuation of legitimate possession for the time and in the manner defined by the laws is the proximate reason on account of which civil and canon law attributes ownership of another's thing to the possessor. Civil and canon law, since usucapion or prescription is governed by that law to which the thing to be acquired by usucapion or prescription is subject. - C. 4, 6, 8 de Praescr.; Inst. 1. 2. t. 6. Cf. on this whole matter Troplong, della Prescrizione.

For what causes was usucapion or prescription introduced? - The causes on account of which usucapion or prescription was introduced by civil and canon law are four: 1. That the uncertainty and confusion of ownerships might be removed. 2. Lest lawsuits be multiplied. 3. Lest possessors live in continual fear of losing the thing possessed. 4. Lest men be negligent in preserving their things and rights. - Therefore usucapions or prescriptions were introduced on account of the public good; and therefore creditors and debtors cannot stipulate that no usucapion or prescription proceed between them. C. I. 2107; C. G. 2229; C. A. 1935; C. A. 1502. Nor consequently can someone renounce the right of prescription. C. L. 508 ff. - Inst. 1. 2. t. 6.

Prescription, however, in a civil cause, cannot be proposed ex officio. C. A. 1501; C. G. 2223; C. I. 2109; C. L. 514, 515. In a civil cause; for prescription of a penal action and of condemnation is applied ex officio, and it cannot be renounced. C. I. pen. 99. But in criminal causes of clerics a penal action is extinguished, "if indeed prescription has been expressly opposed in judgment by the accused or investigated person, or by his procurator. From this it is easy to perceive that the right both of accusing and of investigating remains entire until prescription is expressly opposed, and that the judgment altogether holds if the same has by no means been opposed." S. C. EE. et RR. 21 Mar. 1898. E. M. de stat. Partic. 7, 8 at the end, ed. 4, p. 172.

Is prescription a legitimate mode of acquiring ownership?

R. Affirmatively, both in the external forum and also in the internal forum, as the very common opinion of doctors has it, and it is approved by canon law itself. C. 3, 20 de Praescr.; C. 1 e. t. in the Sixth. The reason is that, with so great negligence of the owner standing, namely of not reclaiming his thing within the established time, it is legitimately presumed either that the thing is truly the possessor's, or that its true owner renounces it to the same. - Therefore the possessor, although after legitimate prescription he learns that another was the owner of the prescribed thing, nevertheless is not bound to restore it to him, since through legitimate prescription he himself has been made owner. But once prescription has been completed, the thing is his as if it had always been his, nor does he owe fruits of the past time. And even if the possessor is ignorant that he has acquired ownership of the thing by prescription, nevertheless he prescribes legitimately; and if from such ignorance he returns the thing thus legitimately prescribed to the prior owner, afterward, conscious of the right, he can demand it back. C. I. 2105; C. G. 2219; C. H. 1930; C. A. 1451, 1452; Inst. 1. 2. t. 6; S. Th. Quodl. 12. a. 24; L. 513, 517; Lugo, de Iust. et Iur. d. 7. s. 1; Cf. C. B. 222, 390, 479.

What conditions are required for prescription? - For legitimate and consequently valid prescription by both laws, canon and civil, the following conditions are required: capacity to prescribe, a thing apt for prescription, possession, title, legitimate time, good faith. Inst. 1. 2. t. 6; L. 504.

Who can prescribe? - All those can prescribe who are capable of acquiring ownership. Therefore both private persons and Communities and Churches can prescribe, as they are also subject to prescription. C. L. 507, 516; C. I. 2114; C. G. 2227, 2251; C. A. 1453, 1454; C. H. 1931, 1932; C. 3, 8, 9 de Praescr.

What things can be prescribed? - Generally, all and only those things can be prescribed which come under ownership and private commerce, and for whose acquisition a legitimate title can be given. For since the end of prescription is to transfer ownership by authority of law, such transfer cannot be made concerning a thing which from its own nature, or from the disposition of the laws, cannot come into private ownership. Those things which can be alienated can regularly be prescribed. For those things which cannot be alienated cannot be acquired by another. C. I. 2113, 2135; C. G. 2226, 2262; C. H. 1936; C. A. 1455-1459, 1480, 1490; C. B. 194; C. L. 506; Inst. 1. 2. t. 6.

Likewise all rights and all obligations are subject to prescription. Rights, obligations, namely those which do not pertain to oneself, but to others; for prescription is not made against oneself, but against another; and thus the right of building or planting in one's own soil is not prescribed against oneself. To others, namely private persons; for those things which are of public order and public right, such as the power of a superior of making laws, obedience owed to superiors, are by no means subject to prescription. To others, that is, those things which can come to others from our concession, as, for example, the faculty given to another of building on your soil, if he has not used this faculty for thirty years; from our concession, not from mere toleration; from our concession, not those things which flow from natural law, such as, for example, the faculty which anyone has of alienating his own thing, nor those which flow from civil law, such as a change of domicile, restitution in full granted to a minor, a married woman, or one interdicted. Therefore acts merely facultative and of simple toleration cannot be the foundation of prescription. For the natural and civil faculty of each one cannot legitimately be possessed by another; and toleration excludes concession of one's own right, on the presumption of which prescription is founded. Facultative acts, namely acts which are merely acts of the power of acting or doing, in oneself or in one's own thing, not merely acts of exacting something from others, with an obligation imposed on them. C. I. 688; C. G. 2232; Troplong, della Prescrizione c. 1, Dispos. Gener. n. 112; c. 2, del Possesso n. 381 ff.; L. 9 de Usurp. et usuc.; E. M. From C. He. 789, land burdens cannot be prescribed. Individual prestations can be prescribed, from the moment when they become the personal debt of the one obligated. And from art. 807, credits secured by an enrolled immovable pledge are not subject to prescription. Likewise perpetual census is imprescriptible; that is, the right to the payment of the prestation, although this can be prescribed, namely as to the various annual payments. Pothier, Trattato dei Censi s. 1. a. 1. § 3. Cf. L. C. de Praescr. 30 vel 40 annor. C. From C. L. 537, inalienable rights, and those which are perpetual, cannot be prescribed. From the same C. L. 592, literary property is imprescriptible.

You will resolve: Public sacred and religious things, such as churches, cemeteries, ecclesiastical rights, and also profane things which are of public ownership strictly taken, such as squares, roads, etc., the former cannot be prescribed by laypersons, the latter by private persons. For they cannot acquire ownership of these things. Schmalz. 1. 2. t. 26. n. 24 ff. "For public places indeed serve the uses of private persons, namely by the right of the city, not as if proper to each one... things which are destined for public use." L. 2. § 2, 5. D. Ne quid de loco publico. The right of conferring benefices cannot be prescribed by laypersons. C. 7 de Praescr. - Nor can the boundaries of parishes or dioceses be prescribed, provided that it is established that they were constituted by legitimate authority. C. Super eo 4 de Paroch. More truly also burdens of Masses cannot be prescribed. Cf. Ferrar. v. Usucapio n. 17; S. C. C. 18 Feb. 1702, 18 Aug. 1843. Although the Pontiffs did not wish ecclesiastical benefices to be transferred to laypersons by prescription, nevertheless an ecclesiastical benefice can be prescribed by a cleric by three years' possession, as is had in Reg. 36 of the Chancery, concerning three years' possession. Here, however, it must be noted that for a similar prescription these conditions are required: 1. good faith; 2. peaceful possession for three years; 3. colored title; 4. non-simoniacal entry; 5. that the beneficed person has not intruded himself into a benefice reserved to the Apostolic See in the Body of Law. L. 507, 515; Lugo d. 7. s. 7; Haunold. t. 1. tr. 5. c. 2. n. 273. C. I. 177, 427, 430; Inst. 1. 2. t. 6; C. 11, 12, 16 de Praescr.; Troplong, della Prescrizione c. 1.

Note: In order that prescription proceed against someone, that is, that it can begin and, once begun, be continued, it is necessary that he be able to defend his rights in court, and that he already have a complete right in the thing. Prescription does not run against one unable to act. Hence prescription does not proceed if someone has fallen into insanity; likewise against conditional rights while the condition is still pending; against rights for a determined day, while the day has not yet elapsed; against an action for eviction until controversy has been moved.

Cf. C. I. 2120, 2121; C. G. 2257, 2258; C. H. 1932, 1934; C. A. 1494, 1497; C. B. 198 ff.; C. L. 545, 550; C. Placuit 1 de Praescr., C. De quarta 4 ib., C. transmissa 10 ib.; L. 1 de Annali exceptione C.; L. 7 de Praescr. 30 vel 40 annor. C. But prescription simply does not proceed, that is, it can neither begin nor be continued, among those who are considered as one person, that is, between spouses, between a son under paternal power and him under whose paternal power he is, between those administered and administrators given by law, between an heir who enters upon an inheritance with the benefit of inventory and the creditors of the inheritance entered upon by him, as to credits which he himself has against the succession. C. I. 2119; C. G. 2252, 2253, 2258; C. A. 1495; C. B. 204; C. L. 551; Troplong, della Prescrizione c. 4. n. 804.

Is possession required for prescription? - It is certain that legitimate possession is required for prescription. This is clear both from civil law and from canon law: "Without possession prescription does not proceed." R. I. 3 in the Sixth. Possession as to things, quasi-possession as to rights, which consists in the use of a right, or in cessation from fulfilling an obligation, as if someone uses a servitude of passage or of aqueduct, if someone prohibits another from going through his land, or obstructs an aqueduct. Inst. 1. 2. t. 6; C. I. 2106; C. G. 2229; C. H. 1940; C. A. 1460; Laymann 1. 3. tr. 1. c. 8. n. 4; Struggl, Theol. univ. p. 2. tr. 8. d. 2. q. 3, a. 4. II; Troplong, della Prescrizione c. 2; E. M.

What are the conditions of legitimate possession? In order that possession be legitimate, it must be:

1. Dominative, that is, one must hold the thing by himself or through another in his own name as owner, with the intention of owner.

2. Peaceful, without any force, with respect to the owner; therefore, if someone by force has prohibited the owner or his tenant from possession of the estate, usucapion of the estate does not proceed for him. - 3. Manifest, not secretly, again with respect to the owner; for example, if the tenant of Titius sells the land to Caius, and remains in possession of the land as tenant of Caius, usucapion does not proceed for Caius. - 4. Not equivocal, so that it appears openly that you possess the thing as your own, that you use a right as though your own; and thus usucapion is not had if a lessee from an estate leased to him diverts water into his own estate, or if someone draws water from a neighbor's well, which is generally done by right of neighborhood, friendship, and familiarity.

5. Continuous, as to its acts and signs. But this continuity is not absolute, but relative to the thing possessed. And thus a right of repeating a prestation on the occasion of the birth of a son, marriage, or death, is not exercised except when that occasion presents itself; and therefore even a few acts suffice for the continuity of possession through many years. Once the beginning of possession has been proved, continuation during the intervening time is presumed.

6. Not interrupted by another's act, neither naturally nor civilly, if the thing, for example, in the intervening time had been stolen, had been taken away by force, or if there had been a judicial citation, or a petition for the thing in court, etc. Cf. 923, 924. - 7. Complete; but for fulfilling the time of usucapion established by law, the successor, or the one having a cause, that is, he to whom the thing has been transmitted, if he is singular, can use the accession of possession of his author, that is, of him from whom he received the thing; for example, the buyer can use the possession of the seller. But if the successor is universal, that is, an heir, he must use it. An heir; but he who succeeds someone in an office is in the manner of a particular successor, not of an heir. Cf. 927 ff. - C. I. 685, 686, 693, 2106, 2115 ff.; C. G. 2228, 2229, 2232-2235 ff.; C. H. 444, 1941, 1942, 1944 ff., 1960; C. L. 510, 517, 518, 521 ff.; C. A. 1460-1462, 1464, 1493; C. B. 857, 858, 943, 944; Inst. 1. 2. t. 6; L. 506; Troplong, della Prescrizione c. 2, del Possesso n. 452.

You will resolve: "Hence it happens that a tenant farmer, lessee, depositary, borrower for use, slave, and similar persons do not possess sufficiently for prescribing; for these do not possess in their own name, but in the name of the owner, who through them possesses with possession useful for prescription, namely both civil and also natural. But a usufructuary and an emphyteuta indeed possess sufficiently that they may prescribe in order to the right of the land, not as to ownership; because they do not possess this civilly. Likewise a tutor, curator, procurator, and similar persons possess not in their own name, but in the name of others; for whom also their slave, son under paternal power, and religious can prescribe. Finally, he who is not capable of acquiring ownership does not possess with possession useful for prescribing. Hence a layperson, who is not capable of a spiritual right, to tithes or to anything else, cannot prescribe it, as Molina commonly teaches with others, d. 62 toward the end." Lugo d. 7. n. 13; C. I. 685, 2115; Inst. 1. 2. t. 1. §§ 1-10.

What is the title required for prescription? The title required of possession in general is the cause from which we hold or possess a thing. One title is translative of ownership, which per se is ordered to transferring ownership, such as sale; another is non-translative, which per se is not ordered to transferring ownership, such as lease. The latter is defective, for of itself it is insufficient for prescription. Indeed, it perpetually obstructs prescription, for it always shows another owner. And thus it is better to have no title than to have a defective title. But the former, if not true and existing in reality, at least apparent, thought to exist, or presumed, is necessarily required for prescription. For, with every title lacking, one cannot prudently judge the thing to be his; and therefore without every title, he cannot be a possessor in good faith. C. I. 701, 2115 ff.; C. G. 550, 2228 ff.; C. A. 1461; C. H. 433, 1434, 1940, 1952, 1953, 1954, 1955, 1959.

Now concerning this title it must briefly be said that it is not absolutely required to be true, but generally a title thought to exist, apparent, or presumed suffices. "For if there had been a true purchase, or donation, etc., prescription would not be required; therefore an apparent title is required, such as purchase, for example, from him who was thought by the buyer to be the owner, although he was not the owner. But the reason is that without title there could not have been good faith at the beginning of possession. Yet because the title could have been present at the very beginning, and afterward be lost through forgetfulness, it was therefore established that a presumed title suffices. But to presume title, possession for that ordinary time required for prescription does not suffice; rather possession for 30 or 40 or more years is required, which is customarily called possession of the longest time: and this indeed when the law does not resist, nor from elsewhere is there presumption of bad faith in the possessor. But if the law resists, or there were a presumption of bad faith in the possessor, possession for immemorial time would be required, as is clear from C. I. de Praescr. in the Sixth.

But if there were not only presumption, but it were established concerning the bad faith of the possessor, or concerning ignorance of a law not doubtful, which ignorance, even if it were invincible, is equivalent to bad faith in this matter; then even possession for immemorial time would not suffice; because a possessor in bad faith prescribes at no time. But the law is said to resist possession not because it is made in some way to the contrary, but because it positively prohibits such possession." Lugo d. 7. n. 15; L. 505. Cf. here n. 855.

What sort of title is required for prescription according to more recent laws? - For ordinary usucapions a special title is required, capable of transferring ownership, for example purchase; colored or apparent, and not only thought to exist or putative, for example if someone thinks, although in good faith, that he bought, because he sent a servant to buy the thing, and he did not buy the thing, but received it on loan for use: for a title translative of ownership is not a title merely thought to exist. Moreover, a just title is required, that is, the title must stand in its legal form. C. I. 701, 2137; C. G. 550, 2265, 2267; C. H. 1940, 1952-1954; C. A. 1461, 1467, for example, if an immovable is donated, but by private instrument, C. I. 1056; C. G. 931. Form; not solemnity, for example if a minor or wife alienates without the decree of a judge, without the consent of the husband. It needs besides, except in a legacy, transcription, and from the completion of this usucapion begins to proceed from C. I. 2137; C. A. 1467; C. H. 1949. But a title thought to exist or presumed suffices for usucapions of the longest time, or 30 years. C. I. 2135; C. G. 2262; C. A. 1477; C. H. 1955, 1959. L. 27 de Usurp. et Usucap.; L. 1 Pro haer.; L. 1 Pro donato; L. 11 Pro empt.; L. 3 de Usucap. pro haer. C.; C. L. 518; Troplong, della Prescrizione c. 5. n. 893 ff.

How much time is required for prescription according to Roman and Canon law? - Movable things, if a special title is present, both among present persons and absent persons, are prescribed by a completed three years. L. un. C. de Usuc. transf. And this still holds as before as to the goods of churches. Auth., received by the Church, Quas actiones de Sacrosanctis ecclesiis; Extr. Ambitiosae de Reb. Eccl. non alien.; Lugo d. 7. n. 69; L. 506, 507, 510. - Immovable things according to the same Law, if a special title is present, are prescribed against a private owner among present persons by ten years, and among absent persons, namely those who are under a different provincial government, by twenty years.

Inst. 1. 2. t. 6; L. 509. Things both movable and immovable, if no special title is present, are first prescribed after the completed time of thirty years. L. 500. But immovable goods of churches, monasteries, hospitals, or those belonging to other pious causes are not prescribed except by a space of 40 years; indeed immovable goods of the Roman Church only by a space of 100 years. C. 4, 6, 8, 9, 13, 14, 17 de Praescr. The Lateran Church also has the privilege of hundred-year prescription, and many religious Orders have it. - Nov. 131. Cap. 6; Schmalz. 1. 2. t. 26. n. 100 ff.; Struggl l. c. q. 3. a. 5; L. 510; Anacletus, Decr. lib. 2. tit. 26. nn. 151, 171. "Since custom tends not only to abrogate law, but also to take away and diminish rights belonging to the Roman Pontiff alone, besides the other conditions it is necessary that it have persevered without any interruption for a space of at least a hundred years." Benedict XIV, de Syn. 1. 9. c. 2. n. 6. - E. M. "Annual revenues are considered among immovables by law." Clem. Exivi § Proinde de Verbor. signific.

How much time is required for prescription according to more recent Law? From C. A. the right of property is acquired in a movable thing by legitimate possession of three years, 1466. But ownership of movable things is acquired by a possessor in good faith when he proves that he acquired it under public auction, or from a person capable of such commerce, or by onerous title from someone who had it, by whatever title, from the plaintiff, 367. The right of property in an immovable thing is acquired by the passage of three years by him in whose name the thing is inscribed in the public books; otherwise, however, only by the passage of thirty years, even without a special title, 1467-1469, 1477; in which time all rights against a third party are extinguished, 1479, 1480. The time of ordinary prescription is doubled among those absent from the Province; and when someone has acquired a movable thing from a defective possessor, or when he cannot indicate its author, 1475, 1476. Rights of impugning a last will, of exacting a legitimate portion, of revoking a donation, of rescinding contracts, of impugning division, are prescribed by a space of three years, 1487. From C. He. 661, 662, 714, 728, land is prescribed by peaceful possession, and without interruption, of ten years, if it was unduly inscribed in the register, and of thirty years, if it was not inscribed in the register. Movables are acquired by transfer of possession, which endures for five years. From the same C. He. 934, a possessor from whom a movable thing has been taken by theft, or which he has lost, or of which unwillingly he has been deprived for any other reason, can vindicate it for himself from the acquirer within a space of five years. If the thing was acquired under public auction, or in the market, or from a dealer of such things, it can likewise be vindicated from the first and from every other successive acquirer in good faith, but with the price paid to him being repaid. From C. B. 195 ff., 900, 927, 932 ff., regular prescription is of thirty years; then there is prescription of two years and of four years. - By a space of thirty years from inscription in the land register, ownership of immovables is acquired. Ownership of movables is had by the very delivery from the one acquiring it, in good faith. Nevertheless stolen and found things are excepted, unless the things have been sold by public sale, or there is question of money and bearer instruments. By possession of ten years under title of proprietor and in good faith, ownership of a movable thing is acquired. From C. H., ownership of movable things is prescribed by possession of three years with a special title, otherwise by six years. Possession itself of movable goods, in good faith, is for title. But as to found things and things taken by theft, the owner can vindicate them for himself; with the price repaid, however, if the present possessor acquired them by public sale, 464, 1955. The right of property in an immovable thing is prescribed by possession of ten years among present persons, twenty among absent persons, and with a special title. An absent person is one who is either overseas or in a foreign nation, 1957, 1958. Likewise a real right over an immovable is prescribed by thirty years without any special title, 1959. - By five years is prescribed the action of revoking a donation because of offspring supervening, 646; by four years the action of nullity of contracts, 1391; by a year the action of revoking a donation on account of ingratitude, 652. C. L. 532, 533, 534: for movable things three years are required with just title and good faith; ten years with possession alone, independently of just title and good faith. Stolen and found things are prescribed by six years. For movable things lost, or obtained by some delict, which have come into a third possessor in good faith, prescription is completed by six years. But if someone in the legitimate time reclaims his own thing which another bought in a market, or public place, or from a merchant carrying on the business of such things, he is bound to repay the price paid. Immovables from the same C. L. 526 ff. are prescribed by five years, if mere possession was registered; by ten years, if the title of acquisition was registered. But if in both cases possession has endured for ten years, prescription is had by ten years, without bad faith or defect of title being able to be alleged. If registration is lacking, prescription is completed by possession of fifteen years. But when possession has endured for thirty years, prescription is had, without bad faith or defect of title being able to be brought against it. From C. I. and G. these things are disposed as to acquisitive prescription of ownership. As to immovable goods, as to things and rights, both real and personal, possessed without special title, thirty years are required for prescribing. C. I. 2135; C. G. 2266. But with a special title, as to immovable goods, ten years are required and suffice, if the owner is present, that is, if he dwells in a place subject to the same superior Court of appeal in whose territory the land is; for if the true owner is absent, that is, if he has domicile outside the said place, then the years of absence are doubled, from C. G. 2265, 2266. But immovable goods and also real rights over an immovable, from C. I. 2137, with every distinction between present and absent persons removed, are acquired by usucapion of ten years from the transcription of the title. As to movable goods, with the exceptions made concerning which we shall soon speak, generally no time is prescribed, but possession alone suffices, which produces the same effect as title, from C. G. 2279. But as to individual movable things, and not as to the universality of movables, and likewise as to unnamed bank notes (bearer instruments), from C. I. 707, 1126, 1513 possession is for title, but as to third parties who are in good faith, not also as to those having cause. The aforesaid art. C. G. 2279 is to be understood with the same limitation as to third parties, as is drawn from its other part and from the following article as to found and stolen things. Therefore a possessor sued could not oppose prescription of a movable thing to the plaintiff from whom he himself obtained it by loan for use, lease, or another precarious title. From both the French and Italian Codes, possession indeed produces the same effect as title by presumption of law, and therefore unless it ought to yield to stronger proof, and not without good faith. Exceptions: As to stolen and found things, he who lost some thing, or from whom it was taken by theft, can vindicate it for himself within a space of three years, which is to be computed from the day of loss or theft, from him with whom he finds the thing, with action preserved to this one against him from whom he received it. If the present possessor of a thing taken by theft or lost bought it at fairs or market, or on the occasion of public bidding, or from a merchant who sells goods of this sort, the original proprietor, that is, the owner, cannot vindicate it for himself unless he pays to the possessor the price by which he acquired it. Thus from C. G. 2279, 2780, with which C. I. 708, 709, 2146 agree; but in this Code two years are established for vindicating one's own thing. L. 590, 592, 610; Troplong, della Prescrizione c. 5. n. 1043 ff.; Monit. Eccles. vol. 18. p. 76 ff.

But the dispositions of the same Italian and French Codes as to liberative prescription from some servitude, or from some burden, are the following:

1. All personal and real actions are prescribed through thirty years without title. C. I. 2135; C. G. 2262. - 2. After ten years, an architect and contractors of works are freed from the burden of furnishing damage for greater works. C. G. 2270; C. I. 1639. Likewise the action against one who administered guardianship is prescribed. C. I. 309; C. G. 475. Similarly there is prescribed the action in solidum of a creditor against his debtors, if for ten years his portion is paid separately and without any reservation by one of the debtors. C. I. 1197. Also prescribed is the right against him who, in ceding a perpetual census, gives surety for the debtor who bought the census. C. I. 1544.

3. Five years suffice for prescribing pensions due from censuses, whether perpetual or life censuses, alimentary pensions, the price of lease of houses, estates, money received on loan, and generally whatever is to be paid periodically each year or after a shorter time. C. I. 2144; C. G. 2277. The same time is also required for prescribing the action of rescinding a division because of lesion in a succession, or of seeking restitution in full. C. I. 309, 1038, 1300; but from C. G. 475, 887, 1304 ten years are required.

4. Two years suffice for prescribing the action of rescinding a sale on account of lesion. C. I. 1531; C. G. 1676.

5. Besides these, there are other prescriptions on account of acts of the family council, on account of things furnished by pharmacists, innkeepers, lodging-house keepers, merchants; on account of stipends of advocates, procurators, apparitors, notaries, physicians, surgeons, teachers, those having boarding houses or houses of education, architects, workers, servants, etc. These, however, do not hold in conscience, since an oath can be required concerning the true extinction of the debt. Therefore prescriptions of this sort in reality are only certain presumptions of law in the external forum, which in the internal forum yield to the truth. C. I. 256, 2138-2143; C. G. 2271-2275. Cf. ib. 2276; Lugo d. 7. n. 56; L. 347, 516. - C. H. 1962-1968; C. L. 535 ff., 560 ff.; C. A. 1432; C. B. 222. As to criminal causes of clerics, "the general rule is that the action of injuries is prescribed by a space of one year, the crime of embezzlement and delicts of the flesh by a space of five continuous years from the day of the committed delict." And if they are continued delicts, prescription has place from the day of the ceasing delict, and if the delict was totally occult, prescription is had from the day of knowledge of the accuser or investigator. Besides, in crimes of abduction, rape inflicted by force, and adultery joined with incest, prescription is only by the lapse of twenty years. And no prescription is had in crimes of supposititious birth, parricide, assassination, high treason, duel, false coinage, apostasy, heresy, simony, extortion, abortion, and sodomy. S. C. EE. et RR. 21 Mar. 1898. E. M. de Stat. Part. 7, 8 at the end.

What is interruption of prescription, and when is it had? - Prescription is interrupted when, on account of an impediment interposed, it ceases in such a way that it no longer has force unless legitimate possession is begun anew. Now prescription is interrupted in two ways:

1. Naturally, if the one prescribing loses, by the act of a man, possession for a time greater than a whole year, or if bad faith supervenes. C. I. 2124; C. G. 2243; C. H. 1944; C. L. 552; C. B. 940, 942; C. Quoniam 20 de Praescr.

2. Civilly, if a lawsuit is juridically moved concerning possession, and the interpellation has not been rejected by the judge, "unless the other," adds St. Alphonsus 511, "does this unjustly to interrupt prescription," C. I. 2125, 2128; C. G. 2244, 2246, 2247; C. H. 1945, 1946, 1947; C. L. 552; C. B. 940; or if he who began to prescribe, prescription not yet completed, recognizes the other's right in any way. C. I. 2129; C. G. 2248; C. H. 1948; C. L. 552; C. A. 1497. Natural interruption interrupts possession for all as to prescription, but a civil act, since it is a thing done among others, benefits only him who exercises it, and therefore does not interrupt possession as to prescription with respect to others. Troplong, della Prescrizione c. 3. n. 542. Cf. C. L. 553, Wirceburg. 431.

What is suspension of prescription, and when is it had? Prescription is suspended when it, having first been begun, ceases because of some legitimate impediment interposed, so that the time during which the impediment lasts cannot be computed; nevertheless, once the impediment ceases, the prior years, with the intervening time of the impediment omitted, can be joined with the following years, and from all of them prescription be completed. - Now prescription is generally suspended against those unable to act, namely in cases determined by the law itself, C. G. 2251; but specifically: 1. against married women, during marriage, as to dotal goods, C. I. 2120; C. G. 1561, 2255. 2. Against minors and interdicted persons, C. I. 2120; C. G. 2252. 3. Against soldiers in time of war, C. I. 2120.

4. Against a church as long as it lacks a rector, C. 4, 15 de Praescr. 5. Against those absent because of civil or military service, and while courts cannot be exercised, in time of plague, war, etc. C. A. 1496. The stated causes of impediment in the first three cases from C. I. 2121 do not have place in usucapion of 30 years as to a third possessor of an immovable, or of a real right over an immovable. C. B. 202 ff., 939; C. H. 1932; C. L. 548 ff. Even when the time of prescription has been completed, the benefit of restitution in full is conceded to the Church, which, as is had in C. Auditis de In integr. restit., enjoys the right of a minor.

What is the good faith required for prescription? Good faith, required in this matter, is the firm persuasion by which someone prudently judges that the thing possessed by him is his; and therefore he is ignorant that the thing was acquired not from the owner, or from one not able to alienate, or from fraud or another defect. C. I. 701; C. G. 550; C. H. 1950; C. A. 326.

This good faith is altogether necessary for beginning and continuing acquisitive prescription of ownership. The reason is that whoever notices that he possesses another's goods, by that very fact immediately contracts the obligation of restitution, since another's thing, both by natural law and also by positive law, whether divine or human, can knowingly neither be taken away nor retained. This is also clear from the Fourth Lateran Council and also from the second Rule of Law in the Sixth: "A possessor in bad faith prescribes at no time." Hence the dispositions of Civil Law, insofar as they do not require good faith, or require it only at the beginning of possession, or only in ordinary prescriptions, do not hold for the internal forum, and are to be held as mere denial of recourse, that is, of action against another.

C. I. 702, 2135, 2137; C. G. 2262, 2265, 2269; C. H. 1955, 1959; C. A. 1493; C. 5, 20 de Praescr. But good faith is required not only for acquisitive prescription, but also for liberative prescription, because the same reasons and authorities press equally for both. But good faith in this prescription consists in this: 1. That someone not be in delay in fulfilling an obligation, for example of paying a debt; for then he is already in fault, and prescription ceases. For if he himself is the one who ought to fulfill the contracted obligation, even if the creditor omits to warn him, the omission of the contracted obligation is certainly not without fault. 2. That no obstacle be placed by which the other is impeded from the use of his right, if someone is bound to do nothing, but only to tolerate and permit.

The reason is that the one prescribing is then bound by no debt toward him against whom he prescribes; nor is he bound, while the time of prescription is running, to warn the other, so that against himself, for example, he may use the right of servitude. C. I. 1236, 2105; C. G. 1234, 2219; C. A. 472, 482, 1478 ff.; C. L. 535, 536. - L. 504, 513; S. Th. 4. D. 41. q. 1. a. 5, q. 1. 2; Quodl. 12. a. 24, 25; Troplong, della Prescrizione c. 5. n. 915 ff.; E. M.

Can someone prescribe if from culpable ignorance he thinks the thing is his? R. Negatively, if it is gravely culpable, because no one ought to receive advantage from his own fault. L. 6. § 1 Pro Emptore. - R. Affirmatively, if it is lightly culpable; for in Lateran IV only faith with mortal sin is condemned. L. 511.

Does good faith theologically taken always suffice for prescription, namely by which someone inculpably does not know that the thing belongs to another? - R. Affirmatively, as to prescription of the longest time, or thirty years. The reason is that the obligation of restitution, while good faith stands, if nothing else obstructs, cannot then arise from natural law, as is clear in itself, for someone inculpably thinks the thing is his. Nor can it arise from positive law; since that law expressly has that in this case the defect of good faith cannot be opposed, nor does it require a colored and determined title, but is content with some presumed and indeterminate title. C. I. 2135; C. G. 2262; C. H. 1959; C. A. 1477, 1493. From C. H. 1955, this holds also as to movable things in prescription of six years.

R. Negatively, probably, as to prescription of long time, or twenty or ten years, and of a shorter time, when good faith theologically taken is founded on ignorance of clear and certain law; but otherwise if it is founded only on ignorance of fact. This ignorance of law is given when someone knows, for example, that Antonia is married, and that the land constitutes her dowry, but nevertheless does not know that the husband cannot validly alienate her dowry; it would be ignorance of fact if someone knew that dotal goods cannot be alienated, but nevertheless did not know that Antonia is married, and that the good is dotal. The reason for the response is that the law of prescription is from positive law. Therefore prescription cannot have place when the conditions required by that law are lacking. Italian Law 701, 2137; French 550, 2265, 2267; Spanish 1957; Austrian 1467 require good faith and just title for immovables: moreover, nullity of title from defect of form cannot, by the same law, found prescription of long time, or twenty or ten years. "In usucapions, an error of law never benefits the possessor." L. 31 de Usurp. et Usucap. But in fact even the most prudent are deceived. L. 2. § 15, 16 Pro Emptore. C. H. 1952, 1953; C. A. 1461; Troplong, della Prescrizione c. 5. n. 923 ff.; Struggl l. c. VI. - But others, both as to the dispositions of Roman Law and as to the dispositions of more recent Law, also probably affirm that prescription can occur with invincible ignorance, whether it is of law or of fact.

The reason is that the laws say one does not prescribe with ignorance of law, or they require a just legal title, namely according to the laws, only insofar as that ignorance of law is difficultly admitted, and with that defect of juridically just title good faith is not presumed. Therefore in the forum of conscience, in which the truth and good faith would be established, prescription should not be denied. And also a just title in the case would not be lacking; for there would be a just title thought to exist. And Cardinal de Lugo says this opinion is positively probable, d. 7. nn. 29, 32; Struggl l. c. a. 3. 11. - C. I. 701-703; C. G. 549, 550; C. A. 326, 1460; C. H. 433, 434, 442, 1952, 1953; L. 511.

Does the good faith of the author benefit the successor for completing prescription? - The good faith of the author beginning possession benefits a successor in good faith for continuing possession and completing legitimate prescription through accession of both times. Therefore the possessor is bound to nothing further if he knows that the thing belongs to another after the time of prescription, begun by the predecessor and completed by himself, has been fulfilled, by whatever title, whether universal or particular, onerous or gratuitous, he has succeeded him. Thus from Roman Law, Inst. 1. 2. t. 6. §§ 12, 13, and from Italian Law 653; French 2235; Austrian 1943; Spanish 1960; cf. ib. 442; German 221, 943, 944.

Does an heir prescribe who doubts about the good faith of predecessors? R. Affirmatively, because bad faith per se and ordinarily ought not be presumed, since no one is presumed bad unless it is proved. Thus commonly. - And thus also if someone at the beginning and end possessed a thing as proprietor, he is presumed to have done so also for the intervening time. - L. 511; C. I. 687, 702; C. G. 2230; C. H. 434; C. A. 328; C. B. 930, 1006.

Does the bad faith of a predecessor impede a successor from prescription? - R. Negatively, if he succeeds by particular title, because he neither is, nor by fiction of law is considered to be, one person with the predecessor. The same must be said of things acquired by purchase or another contract. L. 516. R. Affirmatively, if an heir succeeds from universal title as to ordinary prescription of 10 or 20 years; the reason is that "a universal successor, that is, an heir, so represents the person of the deceased that he succeeds into all his obligations and burdens.

Therefore, since the predecessor on account of bad faith and unjust taking and retention of the thing contracted the obligation of restoring and of impeding prescription of that thing, and of repairing all damages, the heir succeeds in this very obligation, and therefore he cannot cooperate with prescription which he himself is bound to impede, for which he ought to restore."

Lugo l. c. n. 60; L. 512; C. I. 693; C. G. 2237; C. A. 1462; C. B. 858. It is otherwise from C. H. 442, if the successor was in good faith. If the heir succeeds from universal title, but there is question of extraordinary prescription of 30 years, Lugo affirms on account of the same reason, because the heir always represents the deceased with all his defects; therefore just as the deceased with his bad faith could never prescribe, so the heir, who represents him as he died with that bad faith, can never prescribe.

Lugo l. c. Indeed the same Lugo extends this also to mediate heirs, n. 61, which nevertheless many others deny. Struggl l. c. IX. But from French Law, and the same is true as to Italian and Spanish Law, Fr. Gury and others hold as more probable that the bad faith of the predecessor does not harm the universal successor as to this prescription of 30 years, if the heir enters upon the inheritance in good faith and then possesses for 30 years, because French Law 2262, as also Italian 2135 and Spanish 1959, 1963, with no distinction made, says that all obligations, both real and personal, can be prescribed through 30 years; nor does it admit any exception on the part of title or good faith. The same is also had from C. A. 1463, 1477, 1479, 1493, unless the bad faith of the possessor himself is proved. Cf. also C. H. 442, from which it seems it must be said that a universal heir can prescribe in the aforesaid case even by ordinary prescription. And the same author likewise denies, as to a mediate heir, that the bad faith of the predecessor harms him, because he is not considered by any fiction of law to constitute one person with the mediate predecessor. And indeed a mediate heir is not the heir of the first deceased, or of the author in bad faith, but only is the heir of the prior heir, who did not have bad faith. L. 512, 516; C. B. 858, 900.