nearly the same in substance, and they were more extensive than usufruct. Not only was the grantee entitled to possess the lands and reap the fruits, under the burden of the annual payment, but he could make changes in the substance by reclaiming waste lands, building, planting, and other operations, provided he did not deteriorate the subject. He could sell his right, and it descended to his heirs. In case of a sale the proprietor had the privilege of pre-emption, if he was desirous to purchase the subject on his own account, and willing to pay the price offered for it; and for every alienation to a stranger he was entitled to exact a fine, called laudemium, which was fixed by Justinian at the fiftieth part of the price or value of the lands. The right was forfeited and returned to the proprietor by the grantee deteriorating the subject, or neglecting to pay the annual duty for two years in the case of church property, and for three years in other cases.1 grant. The right might be extinguished also by consent of parties, Expiry of the total destruction of the subject, the expiry of the term when the grant was constituted for a time, and by the death of the grantee without leaving lawful heirs.2 Another real right, which bears a strong analogy to emphy- Nature of teusis, was called superficies. By this a landed proprietor superficies. conceded to another person an area of ground for erecting a building upon it, without parting with the ownership of the soil. The property of the building remained with the proprietor of the land, but the grantee acquired a real right to the full possession and enjoyment of the edifice, either for a definite period or in perpetuity, and this right was transferable during life, and descendible to heirs. It was regulated by contract, and the right might be granted either for a price or an annual payment.3 In many respects this jus superficiarium bears a strong resemblance to the long building leases. granted by landholders in England, in consideration of a rent, and under reservation of the ownership of the soil. 1 C. 4. 66. 2. N. 7. 3. § 2. 3 D. 43. 8. De Superficiebus. Or 2 Ortolan, Institutes, vol. iii. p. tolan, vol. iii. p. 295. Maynz, § 238. 292 et seq. Maynz, § 232-237. CHAPTER VIII. OF PRESCRIPTION. General nature of prescription. Prescrip I.-ROMAN LAW. PRESCRIPTION gives an unchallengeable title to property by continuous possession for a certain time under the conditions determined by law. It is also a mode of extinguishing claims which are not prosecuted within the time fixed by law. Hence rights are both acquired and lost by prescription. According to Modestinus, usucapio is the acquisition of property by continuous possession for the period defined by law. The præscriptio longi temporis, on the other hand, was an exception which barred the remedy of the former owner against the possessor. When a person who had been in possession for the prescriptive period afterwards lost it, he was allowed by the prætorian law an actio utilis to vindicate his right. In the time of Justinian the usucapio and the præscriptio longi temporis were blended, and new rules were introduced. By modern jurists the term prescription is used in a general sense, so as to apply either where lapse of time extinguishes the right of the former owner and transfers it to the possessor, or where it merely bars the remedy of the former owner against the possessor. In the earliest period of the Roman law, a prescriptive Justinian's title to movables was acquired by possession for one year, tion in time. 1 "Usucapio est adjectio dominii poris lege definiti."-D. 41. 3. 3. per continuationem possessionis tem- Modestinus. These and to immovables by possession for two years.1 tion of 30 Undisturbed possession for thirty years in general gave a Prescripgood defence by way of exception, even when the possessor and 40 had come in under no title, or when, having an ostensible years. title, the thing belonged to a class excepted from ordinary prescription. But when both these conditions of ordinary prescription were awanting, the Roman law still allowed effect to be given to the extraordinary prescription of forty years.1 interrup Prescription may be interrupted by any deed whereby the Effect of proprietor or creditor exercises his right. Natural interrup- tions. tion takes place when the possessor is deprived of the possession of the subject by the true proprietor. Civil interruption arises from judicial proceedings brought by the owner to vindicate his right before the full time defined by law is completed. Interruption has the effect to cut off the course of prescription, so that the person prescribing cannot avail himself of his previous possession, but must begin a new course from the date of interruption. The operation of pre 1 I. 2. 6. pr. 2 I. 2. 6. pr. C. 7. 33. 12. 3 N. 119, ch. 8. 4 Mackeldey, § 295. Maynz, § 198. minority. Prescription scription is suspended during the minority of the person ensuspended during titled to challenge; but it is not an interruption so as to break the course of prescription, though in computing the prescriptive period the years of minority must of course be deducted. When prescription begins to run. Things not in commerce. Prescription, as a mode of extinguishing obligations, only begins to run from the time that the right or debt can be sued on or demanded judicially, because till then there is properly no cause of action. Therefore when a bond or other debt falls due at a fixed term, prescription does not begin to run till that date. When the debt depends on a condition, prescription does not run till the condition is fulfilled, nor on an obligation of warranty till eviction has taken place. Things exempted from commerce are incapable of prescription. By the Roman law things stolen or possessed by violence were considered so far extra commercium that they could not be acquired by the ordinary prescription even by a bona fide possessor; but this and all other grounds of challenge. seem to have been excluded by the prescription longissimi temporis.1 II.-FRENCH LAW. French law of prescription. In the modern French code there are two general rules of prescription very similar to those which prevailed in the Roman law. 1st, He who acquires in good faith and upon an ostensible title an immovable subject, prescribes the property of it in ten years, if the true owner live in the territory of the royal court within which the subject is situated, and in twenty years if he is domiciled elsewhere. It is sufficient if good faith exist at the commencement of the acquisition, and, as this is always presumed, he who alleges bad faith must prove it. A title defective in form cannot serve as a basis for this prescription of ten or twenty years. 2d, All real and personal actions are barred by the lapse of thirty years, and this prescription may be pleaded by a party 1 I. 2. 6. D. 41. 3. C. 7. 33. 3 Code Civil, art. 2267-2269. 3 without producing any title, and without being exposed to any exception founded on bad faith.1 Shorter prescriptions are established by the French law for particular claims, varying according to their nature from five years to six months.2 III.- - ENGLISH LAW. W. IV. c. In England the Act 3 & 4 Will. IV. c. 27, introduced some English law of prescripimportant changes, limiting the time within which actions tion or limican be brought concerning real property. The old statutes tation. of limitation barred the remedy, but did not extinguish the right; but, under the 34th section of that Act, when the remedy is barred by time, the right and title of the person in any land, rent, or advowson whose remedy is taken away are extinguished. By the 2d section of the same statute it is Act 3 & 4 enacted, that no person shall bring an action to recover any 27. land or rent but within twenty years after the right to bring such action has first accrued to the claimant or some person through whom he claims. Thus, under ordinary circumstances, twenty years form the regular bar; but there is an exception in the case of disabilities arising from infancy or minority, coverture, unsoundness of mind, or absence beyond seas. For, if any one to whom the right accrues is under any of these disabilities, then such person or any one claiming through him may, notwithstanding the lapse of twenty years, bring an action to recover land or rent within ten years after the time at which the person to whom the right first accrued ceased to be under disability or died; but, even in the case of disability or a succession of disabilities, not more than forty years are allowed after the right first accrued. Lord St Leonards attempted to prevail on Parliament to shorten this period of limitation, but without success.3 It has already been explained that twenty years' enjoyment 1 Code Civil, art. 2262. ards's Practical Treatise on New 2 Ibid. liv. iii. sect. 4, art. 2271 Statutes relating to Property, pp. 8, et seq. |