§ 2. What is Dominion and its Divisions.

We have said that the first species of right in the thing was called dominion: that is the right in a corporal thing, from which arises the power of disposing of it and of claiming it, if not prevented by law, agreement, or the will of the testator. Law 1. tit. 28. Part. 3.

It is called right in the thing, because the thing is bound to the lord in such a way, that he can remove (estruer) it from any possession. It must be in a thing strictly corporal, because incorporal things are not in dominion but in property (bienes). It is said moreover, from which arises the power of disposing of the thing and of claiming it, because he who is the lord has in the first place the power of disposing of his things, using them to the exclusion of every other person; he may give, sell, and transfer it to any other person at his pleasure; and he has in the second place the power of claiming it, that is, of withdrawing it from any possessor. But nevertheless, to meet various cases, there is added in the definition, if not prevented by law, agreement, or the will of the testator. Law, for example: this prevents us from claiming the things that have now been prescribed to us (that is, where the remedy is lost by lapse of time). Agreement: This prohibits the feudatory from alienating the land, although he be owner of it. Will of the testator: And, this, finally, prohibits the alienation of a thing left by the testator with the condition of never alienating it.

Dominion is divided into full and less full. The former is when the power of disposing of the thing and that of using it are united in one person. The latter is when those two rights are separated, so that one person has the one and a different person the other; for example: in the feud the vassal has the right of receiving the profits of the thing, but not of disposing of it at his pleasure, but it is divided between the lord and the vassal, so that the latter cannot alienate the land, nor hypothecate it without the consent of the lord; consequently neither of the two has full dominion, but less than full.

This less than full dominion is divided into direct and useful: he who has the power of disposing of the thing will have the direct dominion, and he who only enjoys its profits, the useful dominion. The emplyteusis (lease) will serve us for an example: the lord of the emplyteusis has the direct dominion, and the emplyteuta (lessee) the useful dominion. Law 1. tit. 28. Part. 3. Let us now see,

§ 3. What is meant by Mode of acquiring Dominion.

The distinction is worthy of remark that is found between the tille and the mode of acquiring dominion, and it must be borne in mind in regard to every thing that will be hereafter treated of. All dominion has two causes, proximate and remote. Proximate is that

by which, without the mediation of any other thing, the dominion is obtained; and remote is that which must precede, and by means of which it is acquired; for example, if I buy a jewel from Titius, and he delivers it to me, I acquire dominion. In this case the delivery is the proximate cause, and the contract of purchase is the remote. The proximate cause is called, mode of acquiring, and the remote, title.

The effects of these two things are also different. 1. By the title a right is only acquired to the thing, and by the mode of acquiring in the thing. 2. The title gives only a personal action against the person with whom we contract, and the mode of acquiring gives a real action against any possessor. It serves, then, for a general rule that the title never gives a right in the thing, unless delivery be joined with it. Consequently, although I may have purchased something, or it may have been given or bequeathed to me, I am not lord of it before the delivery be made to me, which is what alone transfers the dominion, or the right in the thing, whenever it is preceded by a title suitable to transfer the dominion; consequently neither is title sufficient without delivery, nor delivery without title.

Notwithstanding this, there are found some cases in which right in the thing is given without delivery, on account of delivery not being possible.

1. In hypothecation.

2. In the negative servitudes.

3. The thing adjudicated by the three divisory courts.

4. Acquisitions by testament.

The reasons given by the author for these exceptions, are omitted in this translation.

§ 4. What are the Modes of acquiring Dominion, and how they are divided.

Of the modes of acquiring dominion, some have their origin from the law of nature and nations, and those are common to all nations: others are derived from the civil law, and differ according to the laws of the countries. Delivery, for example, is a mode of acquiring common to all nations: on the contrary, prescription is either not known, or has different rules in other kingdoms than Spain; from which it is inferred that delivery is a mode of acquiring by the law of nations, and prescription by the civil law.

Of the natural modes of acquiring some are called originary and others derivative. If we acquire a thing that is not in the dominion of another, as a wild animal, a fish, &c., it will be an originary mode of acquiring; but if a thing that is in the dominion of another be transferred to us and delivered by its owner, it will be derivative; for example, the purchaser who acquires the dominion of the thing purchased. Of the same originary modes there is also a convenient subdivision, because I acquire either the substance itself of the thing, or its increase and produce: in the former case it will be a mode of

acquiring perfectly originary, and in the latter it will be less perfect; for example: if one catch a swarm of bees in a wood, and shut them up in his hive, this mode of acquiring will be perfectly originary, because what he has acquired is the substance itself of the bees, making himself also afterwards owner of the honey that they make: and here we have another originary mode of acquiring, although not so perfect as the first, because it is by it that he has made himself owner of the increase and produce of the thing.

By what has been said are clearly inferred the natural modes that there are of acquiring. One is perfect originary, and this is called occupation; there is another less perfect originary, and that is called accession; and another derivative, which is called delivery.

§ 5. Of occupation, the first method of acquiring dominion. 6. Of accession, the second mode of acquiring dominion. The author's remarks on these subjects are omitted in this translation.

§ 7. Of Delivery, the only derivative Mode of acquiring.

We have now seen the originary modes of acquiring: the derivative follows, which is only one, and is called delivery. We said that the derivative mode of acquiring is when the dominion is transferred from one to another; and so we will define delivery by saying: that it is a derivative mode of acquiring by which the lord of the thing who has the right and mind or intention of alienating it, transfers with just cause a corporal thing to him who receives it. Law 46. tit. 28. Part. 3. Hence arises four axioms: 1. That only corporal things can be delivered, for they only can be transferred by a corporal act from one to another: for this reason corporal things, as rights, are not delivered, but are only quasi delivered; and quasi delivery consists in the suffering of the one and the exercise of the other. From the same definition it follows that delivery is either natural or symbolical, brevis manus, or longa manu. Delivery is made naturally when by a corporal act the thing is transferred to the person who receives it. It is called symbolical when one thing is delivered in token of another, whose dominion it is wished to transfer, as for example, if the keys are given of the granary which encloses the wheat that is sold. The delivery is said to be made longa manu when the thing is put in the presence of him to whom it is delivered; but he touches it only with his eyes. Law 6. tit. 30. Part. 3. words "Nevertheless if a man." An equivalent to actual delivery is called brevis manus, and takes place when one who is already in possession of the thing, acknowledges the delivery of it to him, in virtue of the owner, in pursuance of some contract, ceding it to him in full property; for example, I lend to Titius a book; afterwards I sell it to him and say to him that, supposing it to be in his possession, it may remain with him: in this case it is the same as if it were delivered to him.

Axiom 2. The thing must be delivered by the lord. The reason is, because that which one does not hold he cannot give to another;

and thus, if I have received a thing with good faith from one who is not lord, I shall make myself possessor with good faith, but not lord. Neither can a ward transfer dominion, because, although he is lord, he is not considered as a perfect person for defect of judgment, and so can do nothing which might make his condition worse without the authority of the guardian, and consequently cannot transfer dominion. Axiom 3. Dominion is not transferred if there be not an intention to alienate. The reason is, because to the lord only it is competent to give the law to his things and to dispose of them, and if he directs that only the use or custody of his thing shall pass, he who receives it by that delivery will not become lord; for example, if I deposit or let to hire or lend my thing, delivery takes place; but the depositary, hirer or borrower do not become owners of it, because in me is wanting the intention or will of alienating it.

Axiom 4. Dominion is not acquired by delivery unless preceded by a title suitable to transfer it, as those that we have before explained, to wit, gift, sale, legacy. The contract of purchase and sale is peculiar in this respect, that although it may be perfected by the delivery of the thing, yet the dominion is not transferred until the price be delivered; but if security or pledge be given, or the seller gives credit to the buyer, the dominion of the thing sold will pass. Law 46. tit. 28. Part. 3.

In regard to the necessity of delivery of the thing in order to acquire the dominion, it is worthy of remark that that is certainly the case in the civil law; but it is very probable that this subtlety is not regarded by the law of nature; and so, according to the letter, any true owner with absolute right who has the intention or will of alienating, and declares it expressly or by signs intended for the purpose, transfers the dominion validly, although delivery of the thing do not intervene. Hein. Elem. Jur. Nat. lib. 1. cap. 10. s. 275.

TITLE II.

PRESCRIPTION, FROM FEBRERO NOVISIMO.

Translation from the " Febrero Novisimo" by Tapia.

13. Or the modes of acquiring it (dominion) by the civil or municipal law (derecho civil) the first is prescription, or the right which arises from the uninterrupted possession of a thing during the time fixed by the laws; or more properly, it is a peremptory exception, by which the possessor in good faith may repel after the time prescribed by law him who claims the dominion of the thing that he alleges to be his, and of which he has for a long time been dispossessed. Prescrip VOL. I.-46

tion was introduced in the first place for the public benefit, in order that the dominion of things might not be for a long time, or almost forever uncertain; secondly, in order to avoid the innumerable and perpetual litigations which might otherwise arise; thirdly, in order that possessors might not always be under the apprehension of being deprived of what they were enjoying in good faith; and fourthly, in order to punish the indolence of those who are dilatory in recovering their property by which they must impute to themselves the loss of it. But it is to be observed, that where alienation is prohibited, prescription or toleration is also prohibited, being a tacit alienation and comprehended under the general name of alienation.

14. In order that this mode of acquiring the dominion may take place, the following circumstances are necessary, 1st, Title of acquisition; that is to say, that the thing be held by purchase, gift, inheritance or other of the contracts that transfer dominion. 2d. Good faith. 3d. Continued possession. 4th, The time prescribed by law. 5th, Capacity of the person who prescribes, and of the thing prescribed; that is to say, that there be nothing to hinder the possessor from prescribing, nor the thing from being the object of prescription.

15. The title must be real (verdadero), and therefore he who holds a thing believing it to be his own from being persuaded that it was given to him, cannot obtain prescription thereof, unless that belief proceeds from the act of another (hecho ageno) which is not imputable to him; for example if he had given an order to his agent or attorney to purchase it and the latter should deliver it to him, he supposing it to have been purchased, in that case prescription takes place.

16. Good faith consists in the possessor of the things believing that he is the owner thereof by having lawfully acquired it. Therefore he will not have good faith who purchases a thing, being notified by the owner that it is not the property of the seller, nor he who purchases any thing belonging to an orphan, an insane person, or from the attorney of another fraudulently or collusively. By the Roman laws, it was sufficient if the possessor had good faith at the time of acquiring the thing, except in the case of a purchase, in which it was also necessary at the time of contracting, a doctrine which was adopted in the law of Partida; but our most celebrated jurisconsults are of opinion that in this particular the canon law must be followed in Spain; by which it is established that the good faith must continue until the completion of the prescription, relying also upon a law of the kingdom the spirit of which they find in conformity with the said doctrine.

17. Possession is called the lawful holding by a man, of things corporeal with the assistance of the body and of the mind; that is to say, the legal power that the man holds in the things that he has corporally or by will. It is of two kinds, one natural and the other civil or by permission of law. Natural is when the thing is held corporally, as a house, a watch, &c. Civil is when the thing is not held corporally but by will; for example, if one goes out of his house or