Title XV: On One Sent into Possession for the Purpose of Preserving the Property

Latin source headnote: One sent into possession by the first decree in a real action acquires, through the lapse of a year, true and unchangeable possession of that thing, although the person who suffered the sending into possession had within the year the intention of furnishing security but, through his own default, did not put it into effect. This is what it says according to the true understanding.

Alexander III, to the Prior and Brothers of Guisborough.

When our beloved son R., your canon, and the representatives of our beloved son G., provost of Beril, were established in our presence, concerning possession of the church of Lamento, into which you had been inducted for the purpose of preserving the property by our mandate and authority through the delegated judges, namely the Bishop of Exeter and the Prior of Chinelwi, there was debate on each side before us for some time.

Finally, however, after the reasons and allegations on each side had been produced, we gathered from the assertion of each party that, although you had been inducted into possession of the same church only for the purpose of preserving the property, nevertheless within the year the other party did not furnish security with you concerning the same cause to submit to the law, although it had the intention of furnishing that security and you were prepared to receive it. Hence it is that, by apostolic authority with the common counsel of our brothers, we decree that you shall henceforth possess the aforesaid church freely and without any contradiction, saving the right which the same provost is known to have in seeking the church; nor shall the aforesaid provost dare henceforth in any respect to harass you with vexations concerning the same possession.

But so that the sentence of our determination may be inviolably observed in future times, we have considered that it should be strengthened by apostolic protection, establishing that it shall be lawful for no person whatsoever to infringe this page of our determination. But if anyone should presume to attempt this, let him know that he will incur the indignation of Almighty God and of the Apostles Peter and Paul.

Latin source headnote: The period of a year does not run against the person who suffered the sending into possession if, within that period, he offered security to the judges, or to one of them while the others were absent, although it was not received by them or by him. And according to this understanding, this is a noteworthy case.

Clement III, to the Bishop and Archdeacon of York.

When, as we have learned, a question was being conducted between the beloved son P., subdean of Bayeux, and the beloved daughters in Christ, the abbess and convent of Holy Trinity of Caen, concerning the church of Capit, the abbots of Thaurin and Corinth and the archdeacon of Chima, delegated by the Apostolic See, sent those nuns into possession of the thing sought for the purpose of preserving the property, which the constitution of the law appears to have decreed against contumacious persons. Hence, when this came to the knowledge of the subdean, he approached the aforesaid archdeacon and, offering him security for submitting to judgment—because the Abbot of Corinth had departed for England and the Abbot of Thaurin had entered upon the way of all flesh—urgently petitioned that possession be resigned to him according to the order of law within the year; but he could not obtain this.

But in the course of time the nuns whom we have mentioned obtained other letters to our venerable brother W., Archbishop of Rouen, and the beloved sons, the Abbot of Saint Catherine and I. of Vieux-Pont, Archdeacon of Rouen. The subdean, as they assert, refuses to undergo their judgment for this reason: that he holds the aforesaid archbishop suspect for a certain reason and fears that the co-judges may readily be drawn by his authority to either party. But because no one is compelled against his will to be subjected to the judgment of suspect judges, through apostolic writings we command your discretion that, if the subdean shows a certain ground of suspicion against the archbishop, you shall hear the business and determine it, appeal being removed, by the mediation of justice; yet first, if it is so, after security for submitting to judgment has been received from him, you shall cause possession to be restored to him. Nor do we will that it stand in the way that the year is alleged to have elapsed, if it did not stand through him that he did not receive possession and furnish security within the year. But if you learn that anything was wrongfully changed against him concerning this through the aforesaid letters after he refused the suspect judges, you shall reduce it to the due state, proceeding in all these matters without the obstacle of appeal.

Latin source headnote: If the person who suffered the sending into possession, in seeking possession again, alleges that he was not contumacious, he is restored to his former state after security has been furnished, and condemnation in expenses is deferred; he avoids that condemnation if it is afterward established that he was not contumacious.

Innocent III, to the Bishops of Urbino and Senigallia.

When the beloved sons, the Abbot of Saint Angelo on behalf of his monastery, and the nobleman P. Gal., a knight, on behalf of himself, his father, and his wife, came to the Apostolic See, the same P. proposed before us that, when the aforesaid abbot had drawn him into a cause concerning a certain possession before our beloved son John, cardinal priest of the title of Saint Prisca, then legate of the Apostolic See in the March, he asserted before the same cardinal that he would answer him according to the good custom of the land. But the legate himself committed their cause to judges for determination according to the law and the good custom of that land. When they wished to proceed in the cause according only to the law and not according to a custom of this kind, the aforesaid P. appealed from them, as persons who wished to exceed the form of the mandate, to our hearing. Nevertheless, the judges decreed that the adverse party should be inducted into possession of the things sought for the purpose of custody, in such a way that, if the knight himself furnished security for submitting to judgment within a year and a day and restored thirty pounds to the other party for expenses, he would receive that possession.

And when our beloved son G., cardinal priest of the title of Saint Mary across the Tiber, legate of the Apostolic See, afterward entered that land within the year, the knight offered before him security to submit to the law and petitioned that possession be restored to him. But the same legate cited the aforesaid abbot to the cause, to whom afterward the same knight was prepared to restore the expenses incurred in the suit, which, as he asserts, did not exceed the sum of six pounds; but the abbot petitioned that the amount of thirty pounds be restored to him. (And below:)

We therefore, when the often-mentioned knight sought that possession be restored to him, while the abbot petitioned that he be constituted a true possessor by the second decree, understanding that the abbot himself had confessed in law that the often-mentioned knight had applied to that cardinal within the lawful time—indeed, had even offered before the same cardinal, within the year, security to submit to the law—and that the cardinal had sent his letters to him within the year, although he was cited for a later term, believe that P. himself should, after security has been furnished, be reduced into possession. We also decree that, if it is established that that custom which the knight alleges is praiseworthy, because it follows from this that he reasonably appealed, he shall by no means be compelled to restore the expenses. Otherwise, if you find that custom to be reprobated, since it appears from this that he appealed for the purpose of frustration, he shall be compelled to restitution of those expenses which it is established that the abbot necessarily incurred in the suit because of this.

Latin source headnote: Against an absent person who did not leave a proctor, citation having been made at his home and no one defending, a sending into possession is made. This is what it says, by supplying chiefly to the letter, as is said in the gloss. And this is the true and noteworthy understanding.

Gregory IX.

If your adversary, transferring himself to distant places after the edict of citation, did not leave a lawful proctor, and, denunciation having been publicly made at his home, no one appears to defend him, you can by law petition that you be inducted, for the purpose of custody, into possession of those lands concerning which the question is conducted.